Nevada Reports 1973 (89 Nev.).pdf

89 Nev. 1, 1 (1973)

REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 89

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��89 Nev. 1, 1 (1973) Voorhees v. Spencer��

WALTER VOORHEES, KENNETH VOORHEES, BERT EDWARD SUMMERFIELD,

EVELYN F. BALL, LORENA F. BURNS, and JOHN E. FRANK, Jr., Appellants, v.

MARIANNE SPENCER, Administratrix of the Estate of Raylen Stanley Voorhees,

Deceased; and HAZEL JEWEL McMASTERS, Respondents.

No. 6722

January 8, 1973 504 P.2d 1321

Appeal from decision and decree of distribution of Fifth Judicial District Court, Mineral

County; Kenneth L. Mann, Judge.

Appeal from a decree of final distribution, entered by the district court in a proceeding

involving the estate of an Indian who died intestate. The Supreme Court, Mowbray, J., held

that evidence supported finding that marriage of deceased Indian and his wife was not

terminated by divorce, so that she was his legal wife at time of his death, where, inter alia, it

appeared that wife, who had left her husband many years before his death, believed that even

under the Indian custom she would have to go through some kind of an Indian or tribal��


ceremony or documentation of her marriage to a third party, which was not done since wife

believed that her marriage to deceased could be dissolved only in the civil courts.

Affirmed.

Lohse and Lohse, of Reno, for Appellants.

Leonard P. Root, of Las Vegas, for Respondent Spencer.

Joseph P. Reynolds and Denne J. Mancuso, of Reno, for Respondent McMasters.

1. Appeal and Error. Generally, matters affecting the very jurisdiction of the trial court to act may be raised for the first time

on appeal.

2. Indians. The plenary authority of Congress to regulate Indian affairs includes determinations of heirship,

succession to property, and the subjecting of Indians' property to claims of creditors. U.S.C.A. Const. art.

1, § 8, cl. 3.

3. Indians. Absent congressional prohibition, if the event or matter in controversy which calls for judicial action

arises outside Indian country, Indians are subject to laws of the jurisdiction involved. U.S.C.A.Const. art. 1,

§ 8, cl. 3.

4. Indians. Indians have access to the state courts, and the State may regulate their activities outside Indian country,

even though they are members of a tribe and reside on a reservation.

5. Executors and Administrators. The State has a legitimate interest in requiring probate of property within its borders so as to protect

creditors, and the State has authority to require that such property be administered for the protection of

both creditors and claimants to the estate.

6. Indians. Court was not precluded by statute providing, inter alia, that the State would assume jurisdiction over

civil causes of action between Indians, from assuring probate jurisdiction over property of Indian deceased

which was located off the reservation, and State's action did not infringe on the right of reservation Indians

to make their own laws and be ruled by them. NRS 41.430.

7. Divorce. A civil marriage may be dissolved by an Indian custom divorce in the proper circumstances.

8. Divorce. Evidence supported finding that marriage of deceased Indian and his wife was not terminated by divorce,

so that she was his legal wife at time of his death, where, inter alia, it appeared that wife, who had left her

husband many years before his death, believed that even under the Indian custom she would have to go

��

��


through some kind of an Indian or tribal ceremony or documentation of her marriage to a third party, which

was not done since wife believed that her marriage to deceased could be dissolved only in the civil courts.

9. Estoppel. An essential element to the successful invoking of the doctrine of “estoppel” is that one party has, by the

conduct of the other party, been induced to change his position to his detriment.

10. Estoppel. Wife of deceased Indian was not estopped to deny that she and deceased were divorced by Indian

custom, where no showing was made that deceased changed his position in any way after his wife left him,

or that he was induced to do so as a result of wife's acts or conduct, over objection that estoppel should be

predicated on alleged meretricious relationship between wife and third party.

11. Descent and Distribution. The right to inherit is a matter committed to the Legislature.

OPINION

By the Court, Mowbray, J.:

This is an appeal from a decree of final distribution in a proceeding involving the estate of

Raylen Stanley Voorhees, who died intestate. The estate was administered by Marianne

Spencer, the nominee of Hazel Jewel McMasters.

The appellants claim that Raylen Stanley Voorhees died a single man and that as his heirs

they are entitled to distribution of his estate.

The trial judge found that Voorhees was married to Respondent Hazel Jewel McMasters at

the time of his death. Upon such finding, the trial court ordered distribution of certain

community property to Respondent McMasters and apportioned certain separate property

among the appellants and Respondent McMasters.

1. The Facts.

Raylen Stanley Voorhees and Hazel Jewel Smith were married on May 29, 1942, in

Sparks, Washoe County, Nevada. They were married by a Baptist minister after first

obtaining a marriage license from the Clerk of Mineral County at Hawthorne, Nevada. Raylen

was a Paiute Indian from the Walker River Indian Reservation at Schurz, Nevada. After the

marriage, the couple took up residence at Hawthorne and purchased a home there. Raylen was

employed at the United States Naval Ammunition Depot near Hawthorne, and Hazel worked

in Hawthorne.


In the spring of 1946, Raylen and Hazel quarreled and separated. Raylen later disposed of

the home and other property and moved to the family ranch on the Walker River Reservation.

He continued to work at the Naval Ammunition Depot until 1960 or 1961, when he quit his

job and devoted his efforts to farming and ranching on lands held in trust by the United

States. He never married again. He died intestate on October 24, 1968, while a resident of the

Walker River Indian Reservation.

When the parties separated in 1946, Hazel returned to the Pyramid Lake Indian

Reservation at Nixon. For the next 8 or 9 years she lived in California, in Oregon, and at

Nixon, Nevada, forming temporary alliances with male companions during that period. In

1964 or 1965, she moved to the Walker River Indian Reservation at Schurz and moved in

with a man named Ellison McMasters, Jr. She adopted his surname, and they held themselves

out as husband and wife, although they did not go through a marriage ceremony. Hazel was

living at Schurz with McMasters at the time of Raylen's death.

Raylen's interest in property held in trust by the United States, or in which the United

States had an interest, was administered by the Department of the Interior. A car, some

money, and other personal property located on the Reservation were administered by the

Tribal Court. This appeal involves the sum of $1,954.66 which Raylen had in a bank account

in Fallon, Nevada.

2. The Issues.

The three issues involved in this appeal may be summarized as follows:

A. Did the district court have jurisdiction to administer these estate assets and order

distribution, in view of the provisions of NRS 41.430? 1

B. Had Raylen and Hazel obtained a valid Indian custom divorce? ��

____________________

1

NRS 41.430:

“1. Pursuant to the provisions of section 7, chapter 505, Public Law 280 of the 83d Congress, approved

August 15, 1953, and being 67 Stat. 588, the State of Nevada does hereby assume jurisdiction over public

offenses committed by or against Indians in the areas of Indian country in Nevada, as well as jurisdiction over

civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country

in Nevada, subject only to the conditions of subsection 2 of this section.

“2. This section shall become effective 90 days after July 1, 1955, and shall apply to all the counties in this

state except that, prior to the effective date, the board of county commissioners of any county may


C. Is Hazel estopped from asserting that she was legally married to Raylen at the time of

his death?

[Headnote 1]

A. The question of whether NRS 41.430 prevented the district court from entertaining the

probate proceeding was not raised in the court below. The parties concede that the Walker

River Reservation was excluded from the provisions of NRS 41.430 by a proclamation

authorized by NRS 41.430, subsection 2, supra. 2 As a general rule, matters affecting the

very jurisdiction of the trial court to act may be raised for the first time on appeal. Pershing

Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432 (1944); Provenzano v. Long, 64 Nev.

412, 183 P.2d 639 (1947).

If this probate proceeding comes within the classification of “civil causes of action

between Indians or to which Indians are parties which arise in the areas of Indian country in

Nevada” (NRS 41.430, subsection 1, supra), then the State district court was without

jurisdiction. Davis v. Warden, 88 Nev. 443, 498 P.2d 1346 (1972).

[Headnote 2]

Congress has plenary authority to regulate Indian affairs, pursuant to article 1, section 8,

clause 3, of the United States Constitution. This would include determination of heirship,

succession to property, and the subjecting of Indians' property to claims of creditors.

[Headnotes 3, 4]

Our attention has not been directed to any Act of Congress which prohibits a State court

from administering property owned by an Indian which is not located on a reservation and ��

____________________

petition the governor to exclude and except the area of Indian country in that county from the operation of this

section and the governor, by proclamation issued before the effective date of this section, may exclude and

except such Indian country.

“3. In any case where the governor does exclude and except any area of Indian country, as provided in

subsection 2 of this section, he may, by subsequent proclamation at the request of the board of county

commissioners of any county which has been excluded and excepted, withdraw and remove the exclusion and

exception and thereafter the Indian country in that county shall become subject to the provisions of this section.”

2

Extension of State jurisdiction over civil causes of action between Indians or to which Indians are parties

which arise in the areas of Indian country now appears to require the consent of both the State and the Tribe

occupying the particular Indian country. 25 U.S.C.A. § 1322, 82 Stat. 79 (1968).


is otherwise within the jurisdiction of the State court. Absent Congressional prohibition, if the

event or matter in controversy which calls for judicial action arises outside Indian country,

Indians are subject to the laws of the jurisdiction involved. In re Wolf, 27 F. 606 (W.D. Ark.

1886); Ex parte Moore, 133 N.W. 817 (S.D. 1911). 3 Indians have access to the State courts,

and the State may regulate their activities outside Indian country, even though they are

members of a Tribe and reside on a reservation. United States v. Candelaria, 271 U.S. 432

(1926); Trujillo v. Prince, 78 P.2d 145 (N.M. 1938); Harrison v. Laveen, 196 P.2d 456 (Ariz.

1948); In re Cantrell, 495 P.2d 179 (Mont. 1972). 4

It is evident in our society that the activities of our Indian citizens may involve

transactions and incidents outside the reservation as well as those confined to Indian country.

In many cases, the transactions may involve incidents which occur partly on and partly off the

reservation. A helpful guide in resolving questions of jurisdiction is found in the application

of standard conflict-of-law principles, limited by the overriding authority of Congress to

regulate Indian affairs.

[Headnote 5]

It is clear that the State wherein personal property is located has full power to administer

such property. In re Glassford's Estate, 249 P.2d 908 (Cal.App. 1952). The State has a

legitimate interest in requiring probate of property within its borders, to protect creditors. The

property administered by the trial court in the instant case was located off the reservation. The

State has authority to require that it be administered for the protection of both creditors and

claimants to the estate.

____________________

3

In such cases, a persuasive argument can be made that a State could not deny access to its courts solely upon

the basis of race or Indian statutes. Any justification for withholding access to its courts in such a case must be

based upon jurisdictional grounds or an Act of Congress exercising its power over Indian affairs.

4

United States v. Candelaria, supra, held that a suit brought by the Pueblo Tribe in a State court to quiet title

was binding upon the Tribe and the United States. In Trujillo v. Prince, supra, it was held that the New Mexico

court had jurisdiction to appoint an administrator for a deceased reservation Indian to prosecute a wrongful

death action authorized under the laws of that State. Harrison v. Laveen, supra, permitted tribal Indians to bring

action in State courts to enforce voting rights. In re Cantrell, supra, held that a State court could determine that a

child found off the reservation was a dependent and neglected child and remove her from the custody of her

mother, who resided on the reservation.


Application of the usual conflict-of-law rule prevailing in such a situation would require that

the personal property be distributed in accordance with the law of the decedent's domicile. 23

Am.Jur.2d Descent and Distribution § 20 (1965). 5

[Headnote 6]

The State's action here did not infringe on the right of reservation Indians to make their

own laws and be ruled by them, and the trial court was not precluded by NRS 41.430, supra,

from assuming probate jurisdiction of this property which was located off the reservation.

B. The second issue is whether Raylen and Hazel had been divorced by Indian custom at

the time of his death. The Walker River Tribe permitted Indian custom divorce if there were

found to exist (a) a permanent separation and (b) an intent of at least one of the parties that

the marriage be terminated. When Raylen and Hazel were married, they did not establish any

domicile on the Walker River Reservation, and Hazel was a member of another Tribe. 6 At

the time of the separation in Hawthorne, Nevada, their marital status was not subject to the

customs of the Walker River Tribe, and no Indian custom divorce was possible. Wells v.

Thompson, 48 Am.Dec. 76 (Ala. 1848); La Framboise v. Day, 161 N.W. 529 (Minn. 1917);

Moore v. Wa-me-go, 83 P. 400 (Kan. 1905); In re Wo-gin-up's Estate, 192 P. 267 (Utah

1920).

While they were living off the reservation, Raylen and Hazel were subject to the laws of

the State in which they resided, to the same extent that a non-Indian citizen or alien would be

subject to those laws. Ponina v. Leland, supra. No contention is made that Nevada authorizes

or permits Indian custom divorces in those areas subject to its laws.

[Headnotes 7, 8]

Both parties ultimately came to live within the jurisdiction of the Walker River

Reservation. Raylen returned there sometime after the separation, and Hazel found her way

there some 8 or 9 years later. Nevertheless, the record does not establish �� !"�

____________________

5

The parties did not offer any proof in the trial court of any tribal custom or rule affecting succession to an

intestate estate or involving the interests of husband and wife. No assignment of error was made respecting the

trial court's choice of law or the distributive shares, if, in fact, Raylen and Hazel were married.

6

The Pyramid Lake Tribe, of which Hazel was a member, abolished Indian custom divorce in 1941. Ponina

v. Leland, 85 Nev. 263, 454 P.2d 16 (1969).


any later agreement to live separate and apart, or any later act of separation, when either or

both were living on the reservation, other than the separation in Hawthorne in 1946. Even on

the issue of intent the record does not support any inference that Raylen intended to terminate

and dissolve the marriage by any act or agreement of separation. Raylen did not consent to the

separation. He did not separate from Hazel. There is nothing in the record to show that he

intended to terminate the marriage. Rather, the evidence was quite to the contrary and to the

effect that Raylen on several occasions refused to allow Hazel to seek a divorce and that he

put her off when she requested him to do so. There was no change in Raylen's attitude,

conduct, or acts after Hazel began living on the reservation with McMasters. The evidence

regarding Hazel's intent after she took up residence on the Walker River Reservation was

conflicting. The record discloses that Hazel adopted a double standard. When living with

McMasters, she accepted the liberal customs of the Tribe, which would accord her social

acceptance as McMasters's wife. Hazel believed that even under Indian custom she would

have to go through some kind of an Indian or tribal ceremony or documentation of her

marriage to McMasters. This was not done, as Hazel believed her marriage to Raylen could

be dissolved only in the civil courts. After Hazel left Raylen, she lived with other men off the

reservation, and these relationships were not regarded by her as marriages. One of the

essential elements of a valid Indian custom divorce is that at least one of the parties intends to

terminate the marriage by separation. This presupposes knowledge of the availability of an

Indian custom divorce and an intent to effect such a divorce by complying with the requisite

elements thereof. The trial judge found that Hazel did not have such an intent when she left

Raylen in 1946, nor at any time thereafter, because she believed a civil divorce was

necessary. 7 While different inferences could be drawn from the record, it was the function of

the trial judge to resolve any conflicts ��

____________________

7

The trial judge in his written opinion held in part:

“. . . I cannot find that any new or different intent was formed by her [Hazel] after 1964 which would lead to

a valid divorce, unless her adulterous alliance with McMasters would have that effect. I do not believe it does.

Any court would be reluctant to hold, under any system of law, that an adulterous relationship would, per se,

have the effect of dissolving a valid marriage. If such be the rule, it would elevate simple fornication, if carried

on with the same man on a more or less continuous basis, to the status of a recognized social phenomena, [sic]

which on one hand would terminate a valid marriage and on the other hand would form a new matrimonial

contract. I do not believe that Indian custom divorces rest upon such a tenuous and unsavory basis. To


therein. We will not interfere as long as there was substantial evidence received to support his

finding. Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967). Thus, even though it is

possible that a civil marriage may be dissolved by an Indian custom divorce in proper

circumstances [Begay v. Miller, 222 P.2d 624 (Ariz. 1950)], we will not in the instant case

disturb the conclusion reached by the trial court that the marriage of Raylen and Hazel was

not terminated by divorce. It follows that she was his legal wife at the time of his death.

[Headnotes 9, 10]

C. Appellants' third contention is that Hazel is estopped to deny that she and Raylen were

divorced by Indian custom. The claimed estoppel is predicated on her alleged meretricious

relationship with McMasters. An essential to the successful invoking of the doctrine of

estoppel is that one party has, by the conduct of the other party, been induced to change his

position to his detriment. State ex rel. Thatcher v. Justice Court, 46 Nev. 133, 207 P. 1105

(1922). No showing was made that Raylen changed his position in any way or that he was

induced to do so as a result of Hazel's acts or conduct.

[Headnote 11]

Appellants' real concern appears to be that Hazel is unfit to inherit from Raylen. The right

to inherit is a matter committed to the Legislature. Wilson v. Randolph, 50 Nev. 371, 261 P.

654 (1927), aff'd on rehearing, 50 Nev. 440, 264 P. 697 (1928); In re Green's Estate, 196

N.W. 993 (Iowa 1924).

For these reasons, we conclude that Hazel was at the time of Raylen's death his legal wife

and as such entitled to share in his estate. The decree of final distribution of the lower court in

the estate proceedings is affirmed.

Thompson, C. J., and Gunderson, Batjer, and Zenoff, JJ., concur.

____________________

accord these Indian custom divorces the dignity to which they are entitled, it seems to me that the necessary

intent to terminate the marriage, which must accompany or follow the separation, must be shown by clear and

satisfactory evidence. . . .

“It is appropriate to note that the character or conduct of Hazel Jewell [sic] Voorhees is not determinative of

her rights to inherit. The law seeks everlasting principles to guide citizens in the conduct of their affairs. An

attempt is made to apply these principles with an even hand. The principle applied here may, under other facts

and circumstances, result in tangible economic, social and moral benefits for others who may find themselves in

the same position as Raylen Voorhees.”

____________

��89 Nev. 10, 10 (1973) County of Clark v. City of N. Las Vegas��

COUNTY OF CLARK, a Political Subdivision of the State of Nevada, and the TOWN OF

SUNRISE, Appellants, v. CITY OF NORTH LAS VEGAS, Respondent.

SUNRISE MANOR TOWN PROTECTIVE ASSOCIATION, a Nevada Corporation, JOHN

N. CATHA, et al, Appellants, v. CITY OF NORTH LAS VEGAS, a Political Subdivision,

Respondent.

No. 6584

January 10, 1973 504 P.2d 1326

Appeal from judgments of the Eighth Judicial District Court, Clark County; William R.

Morse, Judge.

Proceeding concerning validity of two annexations. The district court rendered judgment

in favor of city and upheld validity of the annexations, and appeal was taken. The Supreme

Court held that even though annexation petitions were signed by 17 of 55 owners of land

developed for urban purposes sought within area to be annexed, where property owners who

signed petitions represented less than 10 percent of the total acreage within the annexation

area, petitions were insufficient to confer jurisdiction on city to proceed with the annexation

of the area.

Reversed.

[Rehearing denied March 20, 1973]

Roy Woofter, District Attorney, Charles L. Garner, Chief Deputy of Appeals, Clark

County, and Harry J. Mangrum, Jr., of Las Vegas, for Appellants.

Carl E. Lovell, Jr., City Attorney, Dennis M. Sabbath, Chief Deputy City Attorney, of

North Las Vegas, and Stanley W. Pierce, of Las Vegas, for Respondents.

1. Municipal Corporations. Under statute providing that annexation proceedings are to be commenced by the city on petition by

board of county commissioners or on petition of not less than 10 percent of the property owners in the area

proposed for annexation, the petitioning procedure is a jurisdictional prerequisite to annexation

proceedings by the city and is not an alternative method of requiring annexation and were inadequate to

confer its own initiative. NRS 268.582.

2. Municipal Corporations. Courts may determine whether a municipal corporation has �#�� #��


exceeded legislative authority in extending its boundaries. NRS 268.604.

3. Municipal Corporations. Where initial annexation petitions circulated among property owners contained boundary description of

approximately 1,600 acres of land developed for urban purposes but city subsequently carved out 240 acres

of the original 1,600 acres and proposed to annex smaller area, petitions initially circulated for annexation

of larger area and signed by 75 property owners who represented approximately 74 percent of land and 36

percent of assessed valuation within smaller area did not approximately describe unincorporated area

proposed for annexation and was inadequate to confer jurisdiction on city to annex smaller area. NRS

268.582.

4. Municipal Corporations. Under statute providing that annexation proceedings are to be commenced by the city on a petition by the

board of county commissioners or on petition of not less than 10 percent of the property owners in the area

proposed for annexation, the sufficiency of petitions to initiate annexation proceedings must be based on

total acreage and assessed valuation. NRS 268.582, 268.592.

5. Municipal Corporations. Even though annexation petitions were signed by 17 of the 55 owners of land developed for urban

purposes within area to be annexed, where property owners who signed petitions represented less than 10

percent of the total acreage within the annexation area, petitions were insufficient to confer jurisdiction on

city to proceed with the annexation of area. NRS 268.570 to 268.608, 268.574, 268.574, subd. 3,

268.582.

OPINION

Per Curiam:

This is an appeal from judgment entered in favor of the City of North Las Vegas, after a

hearing based largely on stipulated facts, upholding the validity of two annexations,

annexations Nos. 38 and 41.

[Headnote 1]

The record on appeal is voluminous. Numerous errors are alleged concerning the

interpretation of the applicable statutes and the procedures employed by the city. However,

the interpretation of NRS 268.582 1 by the trial court, which we deem erroneous, makes it

unnecessary to discuss other issues. The �� $%��&"'�('&�� ) � ��#�� ) � ��#��

____________________

1

NRS 268.582 provides as follows: “Commencement of action by governing body on receipt of petition.

Upon petition of the board of county commissioners, or upon petition of not less than 10 percent of the property

owners in an unincorporated area developed for urban purposes which is approximately described in the petition,

the governing body of any city shall commence action in accordance with the provisions of NRS 268.584 to

268.590, inclusive.”


trial court held that the petitioning procedure set forth in NRS 268.582 was not a

jurisdictional prerequisite to annexation proceedings by the city, and was instead an

alternative method of requiring annexation when the city did not proceed on its own

initiative. We disagree.

[Headnote 2]

The courts may determine whether a municipal corporation has exceeded legislative

authority in extending its boundaries. NRS 268.604; State v. City of Kansas City, 317 P.2d

806 (Kan. 1957); City of Anaheim v. City of Fullerton, 227 P.2d 494 (Cal. 1951).

The Nevada legislature clearly provided in NRS 268.582 that annexation proceedings are

to be “commenced” by the city upon petition of the board of county commissioners, or of at

least ten percent of the property owners in an area developed for urban purposes. The

initiation of annexation proceedings by the filing of petitions is the procedure employed by

most of the states. 2 McQuillin, Municipal Corporations § 7.30 at 424 (3rd ed. 1966). The

record indicates that the board of county commissioners did not petition the City of North Las

Vegas for either Annexations Nos. 38 or 41, and neither were there proper petitions presented

“of not less than 10 percent of the property owners” of land developed for urban purposes

within each of the annexations so as to confer jurisdiction on the city to enlarge its own

boundaries. Cf. City of Tucson v. Garrett, 267 P.2d 717 (Ariz. 1954).

Annexation No. 38:

[Headnote 3]

When the initial petitions were circulated by the city among the property owners, the

petition contained a boundary description of approximately 1600 acres of land developed for

urban purposes, which was denominated Annexation No. 39 by the city. Seventy-five

property owners had initially signed the petitions proposing annexation of the 1600 acres to

the City of North Las Vegas. Subsequently, the city carved out 240 acres of the original 1600

acres and proposed to annex this smaller area as Annexation No. 38. The record does not

indicate that any petitions were circulated by the city, or signed by the property owners,

proposing annexation of the area denominated Annexation No. 38. The 75 property owners

who had signed the initial petitions represented approximately 74 percent of the land and 36

percent of the assessed valuation within Annexation No. 38. However, the petitions initially

circulated by the city for Annexation No. 39 would not constitute �� $%�&"'�('&�� *��#�� $��


compliance with NRS 268.582, insofar as Annexation No. 38 was concerned, since the

petitions must approximately describe the unincorporated area developed for urban purposes

which is proposed for annexation. Thus, the city could not rely on the petitions describing an

area approximately six times as large as that proposed for annexation in No. 38. 2 McQuillin,

supra, § 7.31 at 434.

Annexation No. 41:

Petitions which were circulated by the city for Annexation No. 41 were signed by 17 of the

55 owners of land developed for urban purposes within the area. Though the 17 property

owners who signed the petitions numerically represent more than 10 percent of the property

owners of land developed for urban purposes within Annexation No. 41, they represent less

than 10 percent of the total 3749 acres of land developed for urban purposes within

Annexation No. 41. NRS 268.582 provides that “. . . upon petition of not less than 10 percent

of the property owners. . . ,”. The statute, however, does not specify whether the percentage

calculation should be based on the number of property owners, or whether such percentage

should be based on the total acreage and assessed valuation of the area proposed for

annexation in the petition, in much the same way that “majority of property owners” is

defined in NRS 268.574(3) 2

[Headnotes 4, 5]

The legislature must be presumed to have intended a consistent body of law within NRS

268.570 to 268.608, inclusive, 82 CJS, Statutes § 316 at 548 (1953), and inasmuch as the

sufficiency of protests against annexation [NRS 268.592] is determined on the basis of total

acreage and assessed valuation, so must the sufficiency of petitions to initiate annexation

proceedings [NRS 268.582] be based on total acreage and assessed valuation. Since the

petitions which were signed for Annexation No. 41 represented less than 10 percent of the

total land developed for urban purposes within the area, such petitions �� *��#�� $��

____________________

2

NRS 268.574 provides as follows: “Definitions. As used in NRS 268.570 to 268.608, inclusive:

“. . .

“3. ‘Majority of the property owners' in a territory means the record owners of real property:

(a) Whose combined value is greater than 50 percent of the total value of real property in the territory, as

determined by assessment for taxation; and

(b) Whose combined area is greater than 50 percent of the total area of the territory, excluding lands held by

public bodies.”


were insufficient to confer jurisdiction on the city to proceed with Annexation No. 41

pursuant to NRS 268.582.

The absence of adequate petitions pursuant to NRS 268.582, rendered subsequent actions

by the city relative to Annexations Nos. 38 and 41 wholly nugatory, and the two annexation

ordinances adopted by the City of North Las Vegas are therefore invalid.

____________

��89 Nev. 14, 14 (1973) Cole v. Dawson��

BYRON M. COLE, Appellant, v. DANNETTE DAWSON,

Formerly DANNETTE COLE, Respondent.

No. 6894

January 11, 1973 504 P.2d 1314

Appeal from a judgment denying habeas corpus and awarding custody of a minor child to

the mother; Eighth Judicial District Court, Clark County; Leonard I. Gang, Judge.

The Supreme Court, Thompson, C. J., held that even though Texas divorce decree had

been modified, on joint application of child's natural parents and paternal grandparents, to

change custody of a child from her mother to her grandparents, full faith and credit clause of

Federal Constitution did not foreclose another custody order based upon subsequent change

of circumstance disclosed in habeas corpus proceeding.

Affirmed.

George E. Graziadei, of Las Vegas, for Appellant.

Perry & Clary, of Las Vegas, for Respondent.

1. Divorce. Joint application of child's natural parents and paternal grandparents for modification of child custody

provisions of divorce decree is not against public policy.

2. Divorce. Even though Texas divorce decree had been modified, on joint application of child's natural parents and

paternal grandparents, to change custody of a child from her mother to her grandparents, full faith and

credit clause of Federal Constitution did not foreclose another custody order based upon subsequent change

of circumstance disclosed in habeas corpus proceeding. U.S.C.A.Const. art. 4, § 1.

3. Habeas Corpus. In habeas corpus proceeding involving custody of child, it is appropriate for court to fully explore subject

and give relief compatible with child's best interests, and full custody hearing may be held within habeas

corpus proceeding.

��89 Nev. 14, 15 (1973) Cole v. Dawson��

4. Parent and Child. Nevada policy is that custody shall not be given to nonparent unless parent is found to be unfit.

5. Habeas Corpus. In habeas corpus proceeding brought by paternal grandfather to obtain custody of child from child's

mother, who had been awarded custody by Texas court which thereafter, on joint application of child's

natural parents and paternal grandparents, had modified divorce decree to change custody of child from

child's mother to her grandparents, notice to father was not required.

OPINION

By the Court, Thompson, C. J.:

Byron Cole, the paternal grandfather of Tammy Cole, a four-year-old girl, filed a habeas

corpus petition to obtain the custody of Tammy from her mother, Dannette Dawson. His

request for relief rests mainly upon a Texas decree awarding the custody of Tammy to himself

and wife, Tammy's grandmother, which decree, he insists, is entitled to full faith and credit in

this State and must be enforced, since changed conditions affecting the child's welfare are not

shown to have occurred after its entry. The district court denied relief, and this appeal

followed.

Dannette and the petitioner's son were married in 1967 when each was seventeen years

old. Tammy is the issue of that union. Their marriage, rocky from the beginning, finally failed

and was terminated in 1969 by a decree of divorce in Texas awarding the custody of Tammy

to her mother. In the early part of 1970 Dannette found herself in financial distress and

requested the petitioner and his wife to help her with the care of Tammy. This request for

assistance resulted in Dannette joining with the child's father and paternal grandparents in

applying to the Texas court for modification of the divorce decree to change the custody of

Tammy from Dannette to the grandparents. In March 1970, their joint application was

honored by that court, and the decree was modified accordingly.

Dannette, who was then living in Las Vegas, made periodic trips to Texas to visit her

daughter. In December 1971, Dannette married her present husband, Leonard Dawson. Soon

thereafter, she travelled to Texas, picked up her child and removed her to Las Vegas. This

conduct provoked the instant proceeding.

[Headnotes 1-3]

1. We do not question the propriety of the 1970 Texas decree changing custody pursuant

to the joint application of �� +��

��89 Nev. 14, 16 (1973) Cole v. Dawson��

the child's natural parents and paternal grandparents. In this State such an application is not

against public policy if in the best interest of the child. In re Swall, 36 Nev. 171, 134 P. 96

(1913). We find nothing to suggest that the law of Texas is otherwise. However, the full faith

and credit clause of the United States Constitution does not foreclose another custody order

based upon a subsequent change of circumstances, Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d

623 (1966), and it is appropriate for the court to fully explore that subject and give relief

compatible with the child's best interest. In short, a full custody hearing may be held within

the habeas proceeding. Lyerla v. Ramsay, supra; Ferguson v. Krepper, 83 Nev. 408, 432 P.2d

668 (1967); cf. Dean v. Kimbrough, 88 Nev. 102, 492 P.2d 988 (1972).

[Headnote 4]

The record may be read to show the requisite change of circumstances found by the trial

court, and to support, as well, its belief that Tammy's welfare is best served by vesting

custody in her mother. The mother has remarried and has established a home suitable for

Tammy's care. There is not the slightest suggestion that she is unfit to enjoy custody. All of

the evidence is to the contrary. Her love for Tammy is, by Tammy, reciprocated in full

measure. The mother's request to the Texas court that custody be granted to the grandparents

was caused by the press of circumstances then facing her and was not considered by her to bar

her daughter's companionship forevermore. The policy of this State is that custody shall not

be given to a nonparent unless the parent is found to be unfit. McGlone v. McGlone, 86 Nev.

14, 464 P.2d 27 (1970).

[Headnote 5]

2. The petitioner contends that the district court erred in hearing this matter in the absence

of notice to the father. The father had not been awarded custody by the Texas court. He was

not a party to this proceeding. The dispute was between the paternal grandfather who had

been awarded custody and the mother who had the child. Notice to the father in these

circumstances is not required. Heilman v. Heilman, 312 P.2d 622 (Kan. 1957); Bailey v.

Bailey, 192 P.2d 190 (Kan. 1948).

Affirmed.

Mowbray, Gunderson, Batjer, and Zenoff, JJ. concur.

____________

��89 Nev. 17, 17 (1973) Thomas v. Sheriff��

BOBBY GENE THOMAS, Appellant, v. SHERIFF,

CLARK COUNTY, NEVADA, Respondent.

No. 7010

January 12, 1973 504 P.2d 1313

Appeal from an order discharging pre-trial petition for a writ of habeas corpus; Eighth

Judicial District Court, Clark County; Howard W. Babcock, Judge.

The Supreme Court, Batjer, J., held that evidence that accused told detective he was 30

years of age, that justice of peace and attorney for accused referred to accused as a man and

that accused engaged in sexual intercourse with a minor was sufficient to establish probable

cause that rape occurred and that accused committed it and to hold accused for trial.

Affirmed.

Morgan D. Harris, Public Defender, and Stewart L. Bell, Deputy Public Defender, Clark

County, for Appellant.

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and

Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.

1. Rape.

In a prosecution for statutory rape, proof of age of the accused is necessary to determine the grade of the

offense and the penalty to be inflicted. NRS 200.365.

2. Criminal Law. The sole function of the preliminary hearing is to determine probable cause that offense occurred and that

accused committed it. NRS 171.206.

3. Rape.

There is a presumption that a male person charged with rape is over 18 years of age. NRS 200.365.

4. Rape.

Fact that defendant charged with rape is under 18 years of age is relevant only on question of punishment.

NRS 200.365.

5. Rape.

Age is a matter of defense in a rape prosecution and burden of establishing this defense is on the accused.

NRS 200.365.

6. Criminal Law; Habeas Corpus. The age of an accused in a rape case is a question to be considered by the trier of fact, and neither the

preliminary examination nor the hearing on the habeas petition is designed as a substitute for that function.

NRS 200.365.

7. Criminal Law. Evidence that accused told detective he was 30 years of age, that justice of peace and attorney for

accused referred to accused �� #��


as a man and that accused engaged in sexual intercourse with a minor was sufficient to establish probable

cause that rape occurred and that accused committed it and to hold accused for trial. NRS 171.206,

200.365.

OPINION

By the Court, Batjer, J.:

Appellant, after a preliminary hearing, was ordered to stand trial on a felony charge of

statutory rape. He was denied pre-trial habeas relief in the district court and appeals.

[Headnote 1]

His only claim of error is that the state did not offer competent proof to establish his age.

In a prosecution for statutory rape, proof of age of the accused is necessary to determine the

grade of the offense and the penalty to be inflicted. 1

Detective John Silbaugh, of the Clark County Sheriff's Office, testified that during his

investigation of an unrelated crime that appellant stated that he [appellant] was “30 years of

age.” The prosecutor made no attempt to introduce independent evidence of the appellant's

age.

[Headnote 2]

In denying habeas relief the district judge stated: “[t]he reference to petitioner as a ‘man',

by the Justice of the Peace and petitioner's counsel, is sufficient corroboration of petitioner's

extrajudicial admission that he was 30 years of age to establish the element of the age of the

petitioner at the preliminary hearing.” We need not determine if the statement of the trial

court accurately reflects the law. The sole function of the preliminary hearing is to determine

probable cause that the offense occurred and that the accused committed it. NRS 171.206.

See Whittley v. Sheriff, 87 Nev. 614, 491 P.2d 1282 (1971).

Appellant erroneously relies on State v. Washington, 458 P.2d 694 (Ore.App. 1969), as

authority to sustain his contention. Washington is distinguishable upon the ground that the

reversal of a statutory rape conviction because the age of the victim, stated by the accused in a

confession, was not corroborated.

____________________

1

Under NRS 200.365 when “the male is of the age of 21 years or older” the offense is a felony. “Where the

male is under the age of 21 years,” the offense is a gross misdemeanor. If the male is under the age of 18 years

there is no offense.


[Headnotes 3-5]

“There is a presumption that a male person charged with . . . rape is over 18 years of age. If

a defendant, so charged, is under 18 years of age, such is relevant only on the question of

punishment. Age is a matter of defense, and the burden of establishing this defense is on

him.” State v. Mitchell, 170 S.E.2d 355, 357 (N.C.App. 1969). Brown v. State, 435 P.2d 173

(Okla.Crim.App. 1967); People v. Kutella, 269 N.E.2d 111 (Ill.App. 1971); cf. Meaux v.

State, 267 S.W.2d 833 (Tex.Crim.App. 1954); Vickers v. Commonwealth, 472 S.W.2d 469

(Ky.App. 1971).

[Headnote 6]

In McComas v. State, 131 P.2d 488 (Okla.Crim.App. 1942), construing a statute similar to

ours, the age of an accused in a rape case was held to be a matter of defense. Here, if the

appellant, at trial, is able to establish that he was under 18 years of age at the time the offense

was alleged to have been committed, that fact would be a conclusive defense to the charge.

On the other hand, if the appellant is able to establish his age to be between 18 and 21 he

could only be convicted of a gross-misdemeanor. The accused's age is a question to be

considered by the trier of fact, and neither the preliminary examination nor the hearing on the

habeas petition is designed as a substitute for that function. Cf. State v. Fuchs, 78 Nev. 63,

368 P.2d 869 (1962).

[Headnote 7]

Furthermore, appellant does not challenge the sufficiency of the evidence introduced at the

preliminary examination to establish the fact that he had engaged in sexual intercourse with

the victim, who was under the age of consent. The thrust of the appeal goes only to the

sufficiency of the evidence to establish proof of his age. Respondent urges that for the

purpose of establishing probable cause, under NRS 171.206, the proof offered, in the factual

context of this case, was sufficient. We agree.

The order of the trial court is affirmed.

Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ. concur.

____________

��89 Nev. 20, 20 (1973) Apgar v. State��

RICHARD CURTIS APGAR, Also Known As JAMES

HALLIDAY, Appellant, v. STATE OF NEVADA, Respondent.

No. 6769

January 15, 1973 504 P.2d 1076

Appeal from judgment of conviction; Seventh Judicial District Court, White Pine County;

Roscoe H. Wilkes, Judge.

Reversed and remanded for a new trial.

Gary A. Sheerin, State Public Defender, for Appellant.

Robert List, Attorney General, and Merlyn H. Hoyt, District Attorney, White Pine County,

for Respondent.

OPINION

Per Curiam:

The appellant stands convicted of first degree murder and has appealed. Several substantial

errors, not attributable to the prosecutor, appear to have occurred requiring that the conviction

be set aside and another trial held. The prosecutor, with commendable candor, has

acknowledged before this court that the appellant should be allowed a new trial.


____________

��89 Nev. 20, 20 (1973) Bauwens v. Bauwens��

HELEN BAUWENS, Appellant, v. ERNEST BAUWENS, Respondent.

No. 6391

January 15, 1973 505 P.2d 291

Appeal from dismissed of action upon a foreign judgment for child support; Eighth

Judicial District Court, Clark County; Clarence Sundean, Judge.

The Supreme Court held that there was no error in refusing to receive plaintiff's

deposition, which was proffered without establishing a foundation, or defendant's deposition,

which had not been signed and filed.

Affirmed.

Beckley, DeLanoy & Jemison, Chartered, of Las Vegas, for Appellant.

��89 Nev. 20, 21 (1973) Bauwens v. Bauwens��

Wiener, Goldwater, Galatz & Raggio, Ltd., and J. Charles Thompson, of Las Vegas, for

Respondent.

Depositions.

In action on foreign judgment to recover alleged arrearages for child support, in which neither party

testified, there was no error in refusing to receive deposition of plaintiff, proffered without establishing

foundation, or deposition of defendant, which had not been signed and filed.

OPINION

Per Curiam:

This action upon a foreign judgment to recover arrearages alleged to be due for child

support was dismissed because the plaintiff failed to prove a case. She did not testify in

person, nor was the defendant, who lived in Las Vegas, compelled to attend the trial.

Plaintiff's counsel offered her deposition without establishing a foundation for its use, and

then offered the defendant's deposition which had not been signed by the deponent and filed

with the clerk of court. Consequently, the district court would not receive the proffered

depositions into evidence. This was not error.

Affirmed.

____________

��89 Nev. 21, 21 (1973) Labor Comm'r v. Mapes Hotel Corp.��

LABOR COMMISSIONER OF THE STATE OF NEVADA,

Appellant, v. MAPES HOTEL CORPORATION, Respondent.

No. 7021

January 15, 1973 505 P.2d 288

Appeal from order quashing service of process, Second Judicial District Court, Washoe

County; Thomas O. Craven, Judge.

Action by Labor Commissioner, as assignee of two hotel bellmen, against hotel seeking to

recover the balance of wages allegedly earned. The district court granted a motion to quash

service of process for lack of jurisdiction on ground that duties of the assignor-bellmen were

sufficiently related to interstate commerce to come within the purview of the federal Fair

Labor Standards Act, and Labor Commissioner appealed. The Supreme Court, Gunderson, J.,

held that state court had jurisdiction of suit by Labor Commissioner, under rule that state

courts have jurisdiction concurrent with that of federal �� ,� ��-��*��


courts to determine claims governed by the Fair Labor Standards Act, which act controlled

the case rather than state statute which forbids an employer from applying as a credit toward

the payment of the statutory minimum hourly wage any tips or gratuities bestowed upon his

employees.

Reversed and remanded.

[Rehearing denied April 5, 1973]

Robert List, Attorney General, and Julian Smith, Deputy Attorney General, Carson City,

and Wilbur H. Sprinkel, Special Counsel, of Reno, for Appellant.

Hale and Belford and Gary R. Silverman, of Reno, for Respondent.

1. Labor Relations. Statute forbidding an employer to apply as a credit toward the payment of the statutory minimum hourly

wage any tips or gratuities bestowed upon his employees is a penal statute which must be construed in

favor of employer. NRS 608.160, subd. 1 (b).

2. Labor Relations. It is unclear whether the legislature, by alluding to “statutory minimum hourly wage” in statute which

prohibits an employer from applying as a credit toward payment of the “statutory minimum hourly wage”

any tips or gratuities bestowed upon his employees, intended that the statute should apply to wage statutes

such as the Fair Labor Standards Act that were enacted by other legislative bodies, or merely to wage

minimums established in Nevada statutes. NRS 608.160, subd. 1(b), 608.250; Fair Labor Standards Act

of 1938, §§ 1 et seq. as amended 29 U.S.C.A. §§ 201 et seq.

3. Courts. State court had jurisdiction of suit by Labor Commissioner, as assignee of two hotel bellmen, seeking to

recover from employer the balance of wages allegedly earned, under rule that state courts have jurisdiction

concurrent with that of federal courts to determine claims governed by the Fair Labor Standards Act, which

act controlled the case rather than state statute which forbids an employer from applying as a credit toward

the payment of the statutory minimum hourly wage any tips or gratuities bestowed upon his employees.

NRS 607.170, 608.160, subd. 1(b), 608.250; Fair Labor Standards Act of 1938, §§ 1 et seq., 3(m),(t),

6(b), as amended 29 U.S.C.A. §§ 201 et seq., 203 (m),(t), 206(b).

OPINION

By the Court, Gunderson, J.:

As assignee of two hotel bellmen, pursuant to NRS 607.170, the appellant Labor

Commissioner sued respondent to recover ��.��"/�� +��


the balance of wages allegedly earned at $1.60 per hour, penalties, and attorneys' fees.

Respondent filed a “motion to quash” service of process for “lack of jurisdiction over the

subject matter,” which the district court granted upon ascertaining that the assignor-bellmen's

duties were sufficiently related to interstate commerce to come within the purview of the

federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 201-219, herein called

“FLSA”). This appeal follows.

For certain affected employees, which the parties agree include the assignor-bellmen, the

FLSA currently requires minimum wages of $1.60 per hour. § 206(b). However, the FLSA

also affords an employer a limited and qualified right to claim credit against this hourly

minimum, if an employee “customarily and regularly receives more than $20 a month in

tips.” § 203(m) (t). Hence, because the assignor-bellmen received tips, respondent paid them

less than $1.60 per hour. That practice precipitated the instant action, which the district court

evidently believed was outside its jurisdiction because the parties' rights are governed purely

by the FLSA.

Although we agree the assignor-bellmen's rights in this case are controlled by the FLSA,

and not by NRS 608.160(1) (b) as appellant suggests, we do not agree that Nevada courts lack

jurisdiction to enforce rights under the FLSA. Furthermore, appellant's complaint may be read

to allege claims based on contract. Accordingly, we reverse.

[Headnotes 1, 2]

1. Appellant contends respondent's right to credit for tips, granted by the FLSA, has been

divested by NRS 608.160(1) (b) which forbids an employer to “[a]pply as a credit toward the

payment of the statutory minimum hourly wage any tips or gratuities bestowed upon his

employees.” Stats. Nev. 1971, ch. 582. However, it is unclear whether our legislature, by

alluding to “the statutory minimum hourly wage,” intended that NRS 608.160(1)(b) would

apply to wage statutes such as the FLSA that are enacted by other legislative bodies, or merely

to wage minimums established in Nevada statutes. NRS 608.250, Nevada's statute

establishing a minimum wage for men, expressly excepts men whose minimum wages are

established by the FLSA. Arguably, this suggests intent not to legislate on matters affecting

such minimum wages, and there are reasons our legislature might make this decision.

For example, a state legislature might not wish to forbid crediting tips against a wage

standard Congress may enlarge at any future time, expecting that tips will be credited against

it. This is especially so because, as the United States Supreme ��,-�*�� 0�� 1��1�� 2�� 3 �� 4��


Court has observed, the FLSA does not contemplate giving “the tipping employments an

earnings-preference over the non-service vocations,” and a state legislature could wish to

defer to this congressional policy. Cf. Williams v. Terminal Co., 315 U.S. 386, 388 (1942).

In any event, since NRS 608.160(1)(b) is a penal statute, it must be construed in

respondent's favor. 1 Peck v. Woomack, 65 Nev. 184, 192 P.2d 874 (1948); Orr Ditch Co. v.

Dist. Ct., 64 Nev. 138, 178 P.2d 558 (1947); Ex Parte Davis, 33 Nev. 309, 110 P. 1131

(1910). “Penal statutes should be so clear as to leave no room for doubt as to the intention of

the legislature, and where a reasonable doubt does exist as to whether the person charged with

a violation of its provisions is within a statute, that doubt must be resolved in favor of the

individual.” 33 Nev. at 318, 110 P. at 1135.

[Headnote 3]

2. The FLSA expressly states that an action based on failure to pay minimum wages “may

be maintained in any court of competent jurisdiction.” § 216(b). Accordingly, it is uniformly

held that state courts have jurisdiction concurrent with that of federal courts to determine

claims governed by the FLSA. Camfield v. West Texas Utilities Co., 170 S.W.2d 552

(Tex.Ct. Civ.App. 1942); Cunningham v. Davis, 159 S.W.2d 751 (Ark. 1942); Tidewater

Optical Co. v. Wittkamp, 19 S.E.2d 897 (Va. 1942).

Reversed and remanded for further proceedings.

Thompson, C. J. and Mowbray, Batjer, and Zenoff, JJ., concur.

____________________

1

For violation of NRS 608.160, NRS 608.190(2) provides a penalty of up to $300, payable to the State, in

addition to penalties NRS 608.040 makes collectible by employees who are not paid wages when due.

____________

��89 Nev. 24, 24 (1973) Chauncey v. Warden��

EDWARD W. CHAUNCEY, Appellant, v. WARDEN,

NEVADA STATE PRISON, Respondent.

No. 6899

January 18, 1973 505 P.2d 292

Appeal from dismissal of post-conviction petition for writ of habeas corpus; First Judicial

District Court, Carson City; Frank B. Gregory, Judge.

��89 Nev. 24, 25 (1973) Chauncey v. Warden��

The Supreme Court held that prisoner could maintain traditional habeas corpus in district

in which he was incarcerated and was not limited to post-conviction proceedings in district in

which he was convicted.

Reversed.


Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, for

Respondent.

Habeas Corpus.

Prisoner could maintain traditional habeas corpus in district in which he was incarcerated and was not

limited to post-conviction proceeding in district in which he was convicted. NRS 177.315.

OPINION

Per Curiam:

Convicted of first degree burglary in the Second Judicial District Court in 1962, Appellant

Edward Chauncey, presently an inmate of the state prison, petitioned the First Judicial

District Court for post-conviction habeas corpus relief. Upon the State's motion, that court

dismissed the petition, ruling that under NRS 177.315 a petition for post-conviction relief

could only be brought in the district court wherein the defendant was convicted.

In Marshall v. Warden, 83 Nev. 442, 445 (1967), we held that notwithstanding the 1967

Post-Conviction Act (NRS 177.315) which gave post-conviction jurisdiction to the

convicting district, traditional habeas corpus brought in the district court wherein the

petitioner is incarcerated is still an available remedy.

Reversed.

____________

��89 Nev. 26, 26 (1973) Dredge Corp. v. Peccole��

THE DREDGE CORPORATION, a Nevada Corporation, Appellant, v. WILLIAM

PECCOLE, LIERMANN L. OUSLEY, FRANK B. DITTMAN, MARGARET DITTMAN,

LEONARD R. WILSON, et al, Respondents.

No. 6873

January 19, 1973 505 P.2d 290

Appeal from order denying motion for relief pursuant to NRCP 60(b)(3), Eighth Judicial

District Court, Clark County; Michael J. Wendell, Judge.

Proceeding on motion under rule relating to relief from a void judgment, alleging that

order, by which lower court purported to dismiss movant's quiet title action with prejudice

after the action had been previously dismissed without prejudice, was void. The district court

denied the motion, and movant appealed. The Supreme Court held that except in conformity

with established procedures, lower court was without jurisdiction to alter judgment

dismissing the quiet title action without prejudice, and its order purporting to do so was void.

Reversed.


Guild, Hagen and Clark, Ltd., and Bruce Robb, of Reno, and George E. Franklin, Jr., of

Las Vegas, for Respondents.

1. Judgment. Order dismissing action without prejudice was a final judgment.

2. Appeal and Error. If parties believed court abused its discretion by dismissing action without prejudice, they could have

appealed.

3. Quieting Title. Except in conformity with established procedures, lower court was without jurisdiction to alter judgment

dismissing a quiet title action without prejudice, and its order purporting to do so was void. NRCP 59(e),

60(b)(3); DCR 20(4).

OPINION

Per Curiam:

Years after plaintiff-appellant's quiet title action was dismissed “without prejudice” by

one judge, another judge purported to dismiss the action “with prejudice” on respondents'��

��89 Nev. 26, 27 (1973) Dredge Corp. v. Peccole��

motion. The record indicates that neither the order of dismissal “with prejudice” nor notice of

its entry was ever served. Subsequently, appellant sought relief under NRCP 60(b)(3),

contending the later dismissal “with prejudice” was void; however, the lower court, acting

through still a third judge, denied appellant's motion. This, we think, was error.

[Headnotes 1, 2]

The court's original order, dismissing the action “without prejudice,” was a final judgment.

Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676 (1959). If respondents believed the court

abused its discretion by dismissing the action “without prejudice,” they could have appealed.

Lighthouse v. Great W. Land & Cattle, 88 Nev. 55, 493 P.2d 296 (1972). Respondents did

not appeal; nor did they, by any appropriate motion after judgment, attempt to have the court

reconsider or amend its determination.

Respondents' motion to dismiss “with prejudice” an action already dismissed years earlier

“without prejudice” cannot be justified by our rules governing motions after judgment. See,

for example: NRCP 59(e); NRCP 60; DCR 20(4). Indeed, respondents' motion violated DCR

20 (4). 1

[Headnote 3]

In our view, except in conformity with established procedures, the lower court was without

jurisdiction to alter the judgment dismissing appellant's action “without prejudice,” and its

later order purporting to do so was void. Appellant's motion for relief under NRCP 60(b)(3)

should have been granted.

Reversed.

____________________

1

“No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters

therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of such

motion to the adverse parties.”

____________

��89 Nev. 27, 27 (1973) Paradise Palms v. Paradise Homes��

PARADISE PALMS COMMUNITY ASSOCIATION, a Nevada Nonstock Cooperative

Association, Appellant, v. PARADISE HOMES, a Nevada Corporation, IRWIN MOLASKY,

and HARRY LAHR, Respondents.

No. 6878

January 29, 1973 505 P.2d 596

Appeal from summary judgment; Eighth Judicial District Court, Clark County; John F.

Mendoza, Judge.


Appeal from order of the district court granting summary judgment to defendants on first

of three claims for relief asserted against them. The Supreme Court, Thompson, C. J., held

that where validity of default judgment was fully explored on motion to set it aside in prior

case, a timely appeal was not taken, issue decided in that case was identical to controlling

issue of first cause of action in instant case and party against whom affirmative defense of

collateral estoppel was asserted in the instant case had been party to the prior litigation, two

defendants who were not parties in the prior case were entitled to claim benefit of collateral

estoppel.

Affirmed.


Harry J. Mangrum, Jr., of Las Vegas, for Appellant.

Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents.

1. Judgment. Where issue of fact as to whether certain individual was not a person upon whom service of process

could be made had been adjudicated in prior case in which appeal had been affirmed, doctrine of collateral

estoppel precluded relitigation of the issue against party to the prior action.

2. Judgment. The doctrine of “res judicata” precludes parties or their privies from relitigating a cause of action that has

been fully determined by court of competent jurisdiction and, under the doctrine, any issue necessarily

decided in prior litigation is conclusively determined as to the parties or their privies if it is involved in a

subsequent lawsuit on a different cause of action.

3. Judgment. The rule of “res judicata” is based upon sound public policy of limiting litigation by preventing a party

who has had one fair trial on an issue from again drawing it into controversy.

4. Constitutional Law. The doctrine of “res judicata” must conform to mandate of due process of law that no person be deprived

of personal or property rights by judgment without notice and an opportunity to be heard.

5. Judgment. A “privy” within general rule that plea of res judicata is available only when there is privity is one who,

after rendition of judgment, has acquired an interest in the subject matter affected by judgment through one

of parties, as by inheritance, succession or purchase.

6. Judgment. Criteria for determining who may assert a plea of res judicata differ fundamentally from criteria for

determining against whom �� 5��) �� ) ��

��


a plea of res judicata may be asserted; requirements of due process of law forbid assertion of plea of res

judicata against party unless he was bound by earlier litigation in which the matter was decided and he is

bound by that litigation only if he has been a party thereto or in privity with a party thereto but party

asserting plea is not required to have been a party, or in privity with a party, to earlier litigation.

7. Judgment. In determining validity of plea of res judicata, three questions are pertinent: Was the issue decided in the

prior adjudication identical with one presented in action in question, was there a final judgment on the

merits, was the party against whom the plea is asserted a party or in privity with a party to the prior

adjudication?

8. Judgment. Where validity of default of final judgment was fully explored on motion to set it aside, a timely appeal

was not taken, issue decided in that case was identical to controlling issue of first cause of action in later

case and party against whom affirmative defense of collateral estoppel was asserted in the later case had

been party to the prior litigation, two defendants who were not parties in the first case were entitled to

claim benefit of collateral estoppel.

OPINION


This appeal is from an order of the district court granting summary judgment to the

defendants, Paradise Homes, Molasky and Lahr, on the first of three claims for relief asserted

against them by Paradise Palms Community Association. The district court determined that

there was no just reason to delay the entry of judgment. NRCP 54(b). The action remains

pending against the defendants on the second and third claims for relief alleged.

The propriety of the summary judgment on the first claim for relief turns upon the legal

effect of prior litigation between Paradise Homes as plaintiff and Paradise Palms Association

as defendant. In that case Homes secured a default judgment against the Association in a suit

upon a promissory note. The Association moved to set aside the judgment thus entered on the

ground that it was void, since Irwin Molasky who was served with process in an effort to

acquire jurisdiction over the Association, was not a person upon whom service was

authorized. After an evidentiary hearing, the district court found that the service of process

upon Molasky was valid, and denied the Association's motion. The Association appealed. We

affirmed, since the appeal was not timely filed. Paradise Palms v. Paradise Homes, 86 Nev.

859, 477 P.2d 859 (1970).


[Headnote 1]

In the present case, the Association's first claim for relief seeks to have the prior default

judgment against it declared void, again alleging that Irwin Molasky was not a person upon

whom service of process properly could be made and that the default judgment was and is

void. Since that issue of fact was adjudicated in the first case, each of the defendants contend

that the doctrine of collateral estoppel precludes the relitigation thereof. Cf. Clark v. Clark, 80

Nev. 52, 389 P.2d 69 (1964). 1 That doctrine obviously is available to the Defendant Paradise

Homes and affords immunity to the first claim for relief asserted against that defendant.

However, the other defendants, Molasky and Lahr, were not parties to the first case. Whether

they also may claim the benefit of collateral estoppel is the question to which we now turn.

[Headnotes 2-4]

In the landmark case of Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 122 P.2d

892 (Cal. 1942), Justice Traynor considered this question with regard to the doctrine of res

judicata. He wrote: “The doctrine of res judicata precludes parties or their privies from

relitigating a cause of action that has been finally determined by a court of competent

jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to

the parties or their privies if it is involved in a subsequent lawsuit on a different cause of

action. (Citations) The rule is based upon the sound public policy of limiting litigation by

preventing a party who has had one fair trial on an issue from again drawing it into

controversy. (Citations) The doctrine also serves to protect persons from being twice vexed

for the same cause. Ibid. It must, however, conform to the mandate of due process of law that

no person be deprived of personal or property rights by a judgment without notice and an

opportunity to be heard. (Citations)

[Headnote 5]

“Many courts have stated the facile formula that the plea of res judicata is available only

when there is privity and mutuality of estoppel. (Citations) Under the requirement of privity,

only parties to the former judgment or their privies may take advantage of or be bound by it.

Ibid. A party in this connection is one who is ‘directly interested in the subject matter, and

had �� +��6��7� ��(��7��

____________________

1

The alternative Second and Third Claims for relief allege that the service of process upon Molasky in the

prior action was valid, and seek relief upon the ground of extrinsic fraud. As noted, these claims remain pending.


a right to make defense, or to control the proceeding, and to appeal from that judgment.' 1

Greenleaf, Evidence, 15th Ed., sec. 523. (Citations) A privy is one who, after rendition of the

judgment, has acquired an interest in the subject matter affected by the judgment through or

under one of the parties, as by inheritance, succession, or purchase. (Citations) The estoppel

is mutual if the one taking advantage of the earlier adjudication would have been bound by it,

had it gone against him. (Citations)

[Headnote 6]

“The criteria for determining who may assert a plea of res judicata differ fundamentally

from the criteria for determining against whom a plea of res judicata may be asserted. The

requirements of due process of law forbid the assertion of a plea of res judicata against a party

unless he was bound by the earlier litigation in which the matter was decided. (Citations) He

is bound by that litigation only if he has been a party thereto or in privity with a party thereto.

Ibid. There is no compelling reason, however, for requiring that the party asserting the plea of

res judicata must have been a party, or in privity with a party, to the earlier litigation.

[Headnote 7]

“No satisfactory rationalization has been advanced for the requirement of mutuality. Just

why a party who was not bound by a previous action should be precluded from asserting it as

res judicata against a party who was bound by it is difficult to comprehend. (Citation) Many

courts have abandoned the requirement of mutuality and confined the requirement of privity

to the party against whom the plea of res judicata is asserted. (Citations). . .

“In determining the validity of a plea of res judicata three questions are pertinent: Was the

issue decided in the prior adjudication identical with the one presented in the action in

question? Was there a final judgment on the merits? Was the party against whom the plea is

asserted a party or in privity with a party to the prior adjudication?”

That decision is equally applicable to the doctrine of collateral estoppel. Blonder-Tongue

Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971); Sample v.

Chapman, 497 P.2d 1334 (Wash.App. 1972); Murphy v. Northern Colorado Grain Co., 488

P.2d 103 (Colo.App. 1971); Bahler v. Fletcher, 474 P.2d 329 (Ore. 1970); Halvorsen v. Grain

Dealers Mut. Ins. Co., 210 F.Supp. 73 (W.D. Mich. 1962). We approve the Bernhard decision

for Nevada.


[Headnote 8]

The instant matter satisfies the test announced in Bernhard. The issue decided in the first

case between Paradise Homes and Paradise Association is identical to the controlling issue of

the first cause of action here. There was a final judgment, the validity of which was fully

explored in an adversary manner on the motion to set aside the default judgment, and a timely

appeal was not taken from the ruling thereon. The party against whom the affirmative defense

of collateral estoppel is asserted, Paradise Association, was a party to the prior litigation.

Accordingly, the summary judgment for the defendants on the first claim for relief is

affirmed.

Zenoff, Batjer, and Mowbray, JJ., and McDaniel, D. J., concur.

____________

��89 Nev. 33, 33 (1973) O'Callaghan v. District Court��

GOVERNOR MIKE O'CALLAGHAN, in His Capacity as the Chief Executive Officer of the

State of Nevada; THE STATE OF NEVADA; THE NEVADA GAMING COMMISSION;

NEVADA GAMING COMMISSIONER FRANK SCHRECK, in His Capacity as a Member

of the Nevada Gaming Commission; NEVADA GAMING COMMISSIONER CLYDE

TURNER, in His Capacity as a Member of the Nevada Gaming Commission; NEVADA

GAMING COMMISSIONER JOHN DIEHL, in His Capacity as a Member of the Nevada

Gaming Commission; NEVADA GAMING COMMISSIONER NORMAN BROWN, in His

Capacity as a Member of the Nevada Gaming Commission; NEVADA GAMING

COMMISSIONER WALTER COX, in His Capacity as a Member of the Nevada Gaming

Commission; STATE GAMING CONTROL BOARD; STATE GAMING CONTROL

BOARD MEMBER PHILIP HANNIFIN, in His Capacity as a Member of the Board; STATE

GAMING CONTROL BOARD MEMBER JOHN STRATTON, in His Capacity as a

Member of the Board; and STATE GAMING CONTROL BOARD MEMBER SHANNON

BYBEE, in His Capacity as a Board Member and, also, in His Individual Capacity,

Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF

NEVADA, in and for the County of Clark, THE HONORABLE HOWARD W. BABCOCK

and CARL CHRISTENSEN, the Judges Thereof, and ELLIOT PAUL PRICE, Respondents.

No. 6831

January 31, 1973 505 P.2d 1215

Petition for a writ of prohibition to arrest an action for injunctive relief pending in the

Eighth Judicial District Court.

Original proceeding for prohibition to arrest action in district court by gaming employee to

enjoin interference with his efforts to obtain work permit. The Supreme Court, Thompson, C.

J., held that Gaming Control Act provision limiting review procedures does not preclude

equitable relief when gaming employee's work permit is in issue and did not preclude

employee from seeking injunctive relief.

Dismissed.


Robert List, Attorney General, and David C. Polley, Deputy Attorney General, of Carson

City, for Petitioners.

Goodman & Snyder, Ltd., of Las Vegas, for Respondents.

1. Gaming. Gaming Control Act provision limiting review procedures does not preclude equitable relief when

gaming employee's work permit is in issue and did not preclude employee from seeking injunctive relief

against interference with his effort to obtain permit. NRS 233B.030, subd. 1(d),(e), 463.010 et seq.,

463.153, subd. 3(b), 463.312, 463.315.

2. Gaming. Statute providing that decision of Gaming Commission on review of denial of issuance or renewal of

work permit should be conclusive did not deprive district court of jurisdiction of action to enjoin

interference with employee's efforts to obtain permit, where employee had been issued permit but permit

was seized by federal agents and “sheriff's registration card” was repossessed at Gaming Control Board's

instance. NRS 463.312, 463.335, subds. 1(c), 3, 8.

OPINION


Elliot Paul Price commenced an action in the district court to enjoin the Nevada Gaming

Commission and the State Gaming Control Board from interfering with his effort to obtain a

work permit as a gaming employee. The court issued a temporary restraining order enjoining

the defendants therein, the petitioners here, “from interfering with Price's obtaining a work

permit from the Sheriff of Clark County, Nevada, and further from interfering with Price's

employment once said work permit was issued,” and declined, thereafter to grant the

defendants' motion to dissolve the same. That court will entertain further proceedings in that

action unless prohibited from doing so. Before instituting the district court action for

equitable relief, Price had pursued the administrative remedies provided by NRS 463.335 of

the Nevada Gaming Control Act, but without success. 1

The gaming authorities contend that the district court does �� $��6�� *�� #�� 0��#�� ) �� 2

____________________

1

Price applied for and was granted a temporary work permit by the Sheriff of Clark County to work as a

gaming employee. Upon receiving notice of this fact the State Gaming Control Board promptly advised the

sheriff of its objection and the sheriff immediately repossessed the temporary work permit. Price then requested

a hearing before the Board and the Board sustained the denial of the work permit. The Gaming Commission,

upon review, affirmed the decision of the Board.


not have jurisdiction to entertain the action for injunctive relief since the Nevada Gaming

Control Act designates the exclusive method of judicial review and specifically precludes

“the use of any of the extraordinary common law writs or other equitable proceedings.” NRS

463.315(13). If sustained in this view, the alternative writ of prohibition heretofore issued

must be made permanent. If not sustained, still another issue must be resolved.

1. A reading of the Gaming Control Act reveals that the judicial review specified in NRS

463.315 applies to disciplinary or other action against a licensee [NRS 463.312], to one who

has been excluded or rejected from any licensed gaming establishment [NRS 463.153(3)(b)],

and to a gaming employee who the Commission has found to be guilty of cheating [NRS

463.337(3)]. Mr. Price is none of these.

The Act does not provide that the judicial review contemplated by NRS 463.315 shall

apply to a gaming employee whose work permit is in issue. Moreover, the judicial review

provided by the Nevada Administrative Procedure Act specifically excludes gaming. NRS

233B.030(1)(d),(e). The cases of George v. Nevada Gaming Comm'n, 86 Nev. 374, 468 P.2d

995 (1970), and Gaming Control Bd. v. Dist. Ct., 82 Nev. 38, 409 P.2d 974 (1966), are

inapposite since they concern judicial intervention in licensing matters.

[Headnote 1]

The maxim of statutory construction, “expressio unius est exclusio alterius,” applies to the

judicial review provision of the Gaming Control Act. By expressly designating the areas to

which NRS 463.315 shall apply, the legislature, by implication, excluded other areas

therefrom. State v. C. P. R. R. Co., 21 Nev. 270, 273, 30 P. 693 (1892); Galloway v.

Truesdell, 83 Nev. 13, 26, 422 P.2d 237 (1967). That which is enumerated excludes that

which is not. We hold that NRS 463.315, and particularly subsection 13 thereof, does not

preclude equitable court relief when a gaming employee's work permit is in issue and the

administrative remedies specified in NRS 463.335 have been exhausted.

2. An alternative argument for the issuance of a permanent writ of prohibition is offered

by the petitioners. A gaming employee must hold a valid work permit. NRS 463.335(3).

When a person applies for the issuance or renewal of a work permit and is denied that permit

and that denial has been submitted to the Commission for review, the decision of the

Commission “shall be conclusive on all parties.” NRS 463.335(8). Consequently, judicial

review is precluded. In so far as Mr.


Price is concerned, the contention assumes that his application for a work permit was his

initial application therefor, or was an application for the renewal of a work permit previously

issued to him. That assumption is not warranted on the record before us.

Price had been working as a gaming employee since 1966, and his suitability to work in

that capacity had never been questioned by the gaming authorities of this State. He possessed

a work permit. In December 1970, federal agents arrested him and seized his work permit.

Had he continued to work without it, he, and his employer, may have been subject to criminal

penalty. NRS 463.360. He was, therefore, requested by his employer to take a leave of

absence. Four months later he applied to the Sheriff of Clark County for a work permit or

“sheriff's registration card,” and received it. The Gaming Control Board was notified of this

fact, and since certain of its members had read the newspaper accounts of Price's arrest, the

sheriff was notified to repossess the work permit he had issued. Price had been allowed to

work only six days. So far as we know, the federal charges have not been tried, and Price has

entered his plea of not guilty thereto.

In this context the action of the Board amounted to the revocation of a work permit. It was

not, as the Board suggests, a mere repossession of a temporary, 30-day permit within the

contemplation of NRS 463.335 (1) (c).

The Gaming Control Act does not specify a procedure for revoking a work permit. Cf.

NRS 463.312, with regard to licensees. The legislature should cure this inadequacy.

[Headnote 2]

The revocation of Price's right to work as a gaming employee was accomplished without

prior notice and an opportunity to be heard. This is the main predicate of his action for

injunctive relief in the district court. For the reasons expressed, we hold that the district court

has jurisdiction to entertain his action and to rule upon the validity of the revocation of his

right to work as a gaming employee. This proceeding is dismissed.

Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.

____________

��89 Nev. 37, 37 (1973) Russell v. State��

JAMES RUSSELL, aka JACKIE WILSON, Appellant, v.

THE STATE OF NEVADA, Respondent.

No. 6902

February 2, 1973 505 P.2d 599

Appeal from a conviction and sentence for the crime of burglary, Eighth Judicial District

Court, Clark County; John F. Mendoza, Judge.

The Supreme Court held that where witness's identification was challenged on

cross-examination, it was within permissible limits to allow defendant to substantiate his

identification during redirect examination by noting certain distinguishing characteristics of

defendant.

Affirmed.

Morgan D. Harris, Public Defender, Clark County, for Appellant.

Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, Clark

County, for Respondent.

Witnesses.

Where witness's identification was challenged on cross-examination, it was within permissible limits

to allow defendant to substantiate his identification during redirect examination by noting certain

distinguishing characteristics of defendant. NRS 50.115.

OPINION

Per Curiam:

Appellant was tried before a jury and found guilty of burglary. NRS 205.160. On appeal,

he contends the trial court erred in allowing certain testimony during redirect examination of

a prosecution witness, and also that there was insufficient evidence to support his conviction.

In the instant case, the witness's identification of appellant was challenged on

cross-examination, and he was allowed to substantiate his identification during redirect

examination by noting certain distinguishing characteristics of the appellant. Such redirect

examination was within permissible limits. NRS 50.115; cf. State v. Tranmer, 39 Nev. 142,

154 P. 80 (1915).

Review of the record reflects substantial evidence to support appellant's conviction.

Affirmed.

____________

��89 Nev. 38, 38 (1973) Johnstone v. Lamb��

ROBERT GORDON JOHNSTONE, Appellant, v. RALPH

LAMB, SHERIFF OF CLARK COUNTY, NEVADA, Respondent.

No. 6976

February 2, 1973 505 P.2d 596

Appeal from an order denying writ of habeas corpus, Eighth Judicial District Court, Clark

County; Howard W. Babcock, Judge.

The Supreme Court held that evidence submitted to the grand jury, which indicted

petitioner on two counts of murder, was sufficient to establish probable cause to believe that

the charged offenses had been committed and that defendant had committed them.

Affirmed.

Earl and Earl, Anthony M. Earl, of Las Vegas, for Appellant.



Indictment and Information.

Evidence submitted to the grand jury, which indicted petitioner on two counts of murder, was sufficient

to establish probable cause to believe that the charged offenses had been committee and that defendant had

committed them. NRS 171.206.

OPINION

Per Curiam:

Indicted for two counts of murder by the Clark County Grand Jury, appellant sought

pre-trial habeas relief in the district court. In this appeal from an order denying that relief, his

sole contention is that the evidence submitted to the grand jury was insufficient to establish

probable cause.

Contrary to appellant's contention, we believe the district court correctly determined that

there was probable cause to believe the charged offenses had been committed and that the

defendant had committed them. NRS 171.206. Protracted discussion of the record would

serve no useful purpose. Review thereof reveals that such portion of the evidence submitted

to the grand jury, not challenged by appellant, is within our holding in Robertson v. Sheriff,

85 Nev. 681, 683, 462 P.2d 528, 529 (1969), in which we said “that presence,

companionship, �� +�� 2

��89 Nev. 38, 39 (1973) Johnstone v. Lamb��

and conduct before and after the offense are circumstances from which one's participation in

the criminal intent may be inferred.”

Affirmed.

____________

��89 Nev. 39, 39 (1973) Buettner v. Buettner��

STELLA BEHNEN BUETTNER, Appellant, v.

JOHN ALVIN BUETTNER, Respondent.

No. 6801

February 2, 1973 505 P.2d 600

Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.

Pavlikowski, Judge.

Action for divorce. The district court granted divorce on ground of incompatibility but

refused to honor antenuptial agreement specifying rights of parties on divorce, and wife

appealed. The Supreme Court, Zenoff, J., held that antenuptial contracts relating to property

settlement and support in event of divorce are not void as contrary to public policy. In

addition, the court held that the particular agreement was not so unconscionable or unfair that

it should be denied enforcement.

Reversed.

[Rehearing denied April 13, 1973]

Harry E. Claiborne, Dean Breeze, and Paul V. Carelli, III, of Las Vegas, for Appellant.

Cromer and Barker, of Las Vegas, for Respondent.

1. Husband and Wife. Antenuptial contracts whereby the parties agree on the property rights which each shall have in the estate

of the other on his or her death are conducive to marital tranquility and thus in harmony with public policy.

2. Husband and Wife. Antenuptial contracts settling alimony and property rights on divorce are not to be viewed as void

because contrary to public policy; however, as with all contracts, the courts retain power to refuse to

enforce a particular antenuptial agreement if it is found that it is unconscionable, obtained through fraud,

misrepresentation, material nondisclosure or duress.

3. Appeal and Error. Trial court's finding that premarital agreement was unfair and unjust was not binding on reviewing court

where finding was ��


merely conclusory, in that it indicated none of the indicia of unfairness or ultimate facts leading to

conclusion and record did not reveal fraud, misrepresentation, material nondisclosure, duress or any other

ultimate fact indicating unfairness or unconscionability.

4. Husband and Wife. Antenuptial contract, which provided that parties relinquished all rights and claims in separate property

of the other except as therein provided, that parties would execute reciprocal wills and that in event of

divorce the wife, in addition to receiving one-half share of community property, would receive described

house and lot together with all goods and furnishings and sum of $500 per month each and every month for

period of five years regardless of whether she remarried, would be enforced on divorce where agreement

was understandably and intelligently entered into and was not obtained by fraud, misrepresentation or

nondisclosure on part of wife; agreement was not void as against public policy.

OPINION

By the Court, Zenoff, J.:

The parties to this action, in contemplation of marriage, entered into an antenuptial

agreement which provided, in pertinent part, as follows:

“3. Both parties to this agreement, by execution hereof, do hereby agree and

understand that they do completely and forever in the future relinquish all rights and

claims, both legal and equitable, in the separate property estate of the other, except as

otherwise set forth in this agreement.

“4. That in consideration of said marriage and of the covenants of this agreement,

JOHN A. BUETTNER and STELLA BEHNEN hereby promise and agree to give,

devise and bequeath by their list wills and testaments to each other, one half of all

property of whatever kind and wherever situated owned by each other at the time of

their death, together with a contingent interest in the remaining one half of all such

property as set forth in said wills which are to be executed after the marriage of the

parties.

. . .

“5. In the event that either of the parties to this agreement obtain a decree of divorce

in the future thereby terminating the contract of marriage of the parties, STELLA

BEHNEN, in addition to one half �� 89�$�*�


share of the community property of the parties, shall receive from JOHN A.

BUETTNER in release and discharge of all rights, claims interests in law and equity

which she might have or could have in/or to his estate or property, real or personal, or

any part thereof, the following described property to have and to hold as her separate

property to-wit:

(A) House and lot located at 1130 Ralston, Las Vegas, Nevada, together with all

household goods and furniture located therein subject to the existing 1st Trust

Deed.

(B) The sum of Five Hundred Dollars ($500.00) per month each and every month for

a period of five years for a total amount of Thirty Thousand Dollars

($30,000.00).

“Said money shall be paid to STELLA BEHNEN regardless of whether she

remarries or not and shall commence on the first day of the month succeeding the

issuance of the decree of divorce by a court of competent jurisdiction and continue

thereafter on the first day of each succeeding month until paid in full.”

The antenuptial agreement was silent as to the separate property, if any, of Stella Behnen,

but listed the separate property of John A. Buettner, which was later estimated by him to be

worth approximately $400,000.00.

Subsequent to the execution of the contract, but on the same day (December 6, 1970), the

parties were married. Both parties had been married previously and had children by prior

marriages. On April 9, 1971 Mr. Buettner instituted divorce proceedings against his wife

alleging fraud and misrepresentation in the inducement to sign the prenuptial agreement,

mental cruelty and incompatibility. The wife in her answer advanced the antenuptial

agreement and urged the court, in the event it should award plaintiff a divorce, to enter its

decree as to property settlement and support in conformance with the agreement of the

parties.

The judge, after trial to the court sitting without a jury, did not make any finding of fact as

to plaintiff's allegation of fraud and misrepresentation by the wife to induce him to enter into

the agreement. Nor did he make any finding as to the alleged mental cruelty of the wife.

Instead, the divorce was granted upon the ground of incompatibility.

As to the antenuptial contract, the court entered its finding of fact as follows: ��04�� :��1;�� *��<��"�� =/�� 2


“That said Pre-Marital Agreement, dated December 6, 1970, as entered into by and

between the parties, is unfair and unjust to said parties.”

As a conclusion of law, the court stated:

“That the Pre-Marital Agreement . . . was made in derogation of marriage, is

contrary to and is therefore void. . . .”

The court refused to honor the antenuptial agreement of the parties, whereunder the wife

would get the house, all household goods and furniture and $500.00 per month for 5 years,

and instead awarded the wife a dining room set, a couch and $2,000--payable at $166.67 per

month for one year.

Mrs. Buettner has appealed from this decree claiming the trial court erred in refusing to

give effect to the antenuptial agreement of the parties.

We are presented with two questions: (1) whether in this jurisdiction antenuptial contracts

relating to property settlement and support in the event of divorce are void as contrary to

public policy; and (2) if not, is this particular antenuptial contract so unconscionable or unfair

that it should not be enforced.

1. While the court has never directly addressed itself to the question, a number of

jurisdictions have announced the rule that contracts intended to promote or facilitate the

procurement of a divorce are void and unenforceable as contrary to public policy. See, e.g.,

Posner v. Posner, 233 S.2d 381, 382 (Fla. 1970); In re Cooper's Estate, 403 P.2d 984, 998

(Kans. 1965).

The difficulty with the application of the rule is in determining when such a contract

invites, promotes or encourages divorce. Agreements have been declared void which obligate

one spouse to not defend or contest a divorce by the other spouse. Allen v. Allen, 150 So.

237, 238 (Fla. 1933); Gardine v. Cottey, 230 S.W.2d 731 (Mo. 1950); Perry v. Perry, 192

S.W.2d 830 (Tenn. 1946). Likewise, contracts under which there is an agreement to procure a

divorce are invalid, McLean v. McLean, 74 S.E.2d 320 (N.C. 1953), as are those obligating

the parties to conceal the true cause of the divorce by alleging another. Allen v. Allen, supra.

In addition, and by far the majority of the cases wherein such contracts are declared void,

are those whereunder the husband sought to relieve himself of his duty to support the wife in

the event of divorce, or to limit his liability for such support �� +��+�� ;��;��&/��7�&�!&&�>$�� "�?�� (=*�-�%�&� !&��)��4�� @'(��3�&�&''��& @�>4��


to a small fraction of that which a court would be likely to decree in light of the wife's needs

and the husband's ability to pay. See, e.g., Motley v. Motley, 120 S.E.2d 422 (N.C. 1961), and

cases collected in 57 A.L.R.2d 942 et seq. The reason such contracts tend to promote or

encourage divorce is set forth in Crouch v. Crouch, 385 S.W.2d 288, 293 (Tenn. 1964):

“Such contract could induce a mercenary husband to inflict on his wife any wrong he

might desire with the knowledge his pecuniary liability would be limited. In other

words, a husband could through abuse and ill-treatment of the wife force her to bring an

action for divorce and thereby buy a divorce for a sum far less than he would otherwise

have to pay.”

While in the normal case the wife urges the invalidity of the contract, here, the husband,

using a strange twist on the above rationale, argues that the contractual provision relating to

the property settlement and support was so generous in favor of the wife that she was induced

by the hope of financial gain to so abuse and mistreat her husband as to force him to bring an

action for divorce.

We are unconvinced. We do not find, nor did the trial court find, that the prospective wife

entered into the contract with the intent to obtain a divorce from Mr. Buettner and thereby

profit financially. There was no finding that the wife caused the divorce. In fact, it is

uncontradicted in the record that the serious acts of divorce were committed not by the wife,

but by the husband, who, on at least two occasions, beat the wife severely because of her

refusal to change her name to conform to that of his previous wife in order to commit a tax

fraud. As a result of such beatings, appellant was hospitalized and required to undergo

surgery. Similarly, we do not believe the agreement to be so generous in favor of the wife that

she would be induced to seek a divorce as a source of financial gain. In fact, it seems clear,

particularly in light of Section 4 of the agreement requiring reciprocal wills, that it would

have been in the best financial interest of the wife to remain married, thereby sharing in her

husband's moderate wealth during their joint lives, and standing to receive a large share of his

estate at his death.

This case, then, does not stand on the same footing as those wherein certain types of

antenuptial contracts are said to be violative of public policy because they induce, encourage

or promote divorce.


[Headnote 1]

Antenuptial contracts whereby the parties agree upon the property rights which each shall

have in the estate of the other upon his or her death have long been held to be conducive to

marital tranquillity and thus in harmony with public policy. See, e.g., Del Vecchio v. Del

Vecchio, 143 S.2d 17 (Fla. 1962); Stewart v. Stewart, 23 S.E.2d 306 (N.C. 1942). We

perceive no reason why a different rationale should apply where the parties have attempted to

set contractually the property rights of each spouse and the amount of support due the wife in

the event a prospective marriage fails.

Other jurisdictions do uphold antenuptial contracts relating to property settlement and

support in case of divorce. See, e.g., Hudson v. Hudson, 350 P.2d 596 (Okla. 1960); In re

Borton's Estate, 393 P.2d 808 (Wyo. 1964).

We quote with approval language of the Supreme Court of Florida in Posner v. Posner,

233 S.2d 381, 384 (Fla. 1970):

“There can be no doubt that the institution of marriage is the foundation of the

familial and social structure of our Nation and, as such, continues to be of vital interest

to the State; but we cannot blind ourselves to the fact that the concept of the ‘sanctity'

of a marriage--as being practically indissoluble, once entered into--held by our

ancestors only a few generations ago, has been greatly eroded in the last several

decades. This court can take judicial notice of the fact that the ratio of marriages to

divorces has reached a disturbing rate in many states. . . .

“With divorce such a commonplace fact of life, it is fair to assume that many

prospective marriage partners whose property and familial situation is such as to

generate a valid antenuptial agreement settling their property rights upon the death of

either, might want to consider and discuss also--and agree upon, if possible--the

disposition of their property and the alimony rights of the wife in the event their

marriage, despite their best efforts, should fail. . . .

“We know of no community or society in which the public policy that condemned a

husband and wife to a lifetime of misery as an alternative to the opprobrium of divorce

still exists. And a tendency to recognize this change in public policy and to give effect

to the antenuptial agreements of the parties relating to divorce is clearly discernible.

Thus, in Hudson v.��9��


Hudson, Okl. 1960, 350 P.2d 596, the court simply applied to an antenuptial contract

respecting alimony the rule applicable to antenuptial contracts settling property rights

upon the death of a spouse and thus tacitly, if not expressly, discarded the

contrary-to-public-policy rule.”

The rule applicable to antenuptial contracts settling property rights upon the death of a

spouse is set out by the Supreme Court of Kansas as follows:

“The general rule in this state is that contracts, made either before or after marriage,

the purpose of which is to fix property rights between a husband and wife are to be

liberally interpreted to carry out the intentions of the makers, and to uphold such

contracts where they are fairly and understandably made, are just and equitable in their

provisions and are not obtained by fraud or overreaching.” In re Cantrell's Estate, 119

P.2d 483, 486 (Kan. 1942).

[Headnote 2]

We have given careful consideration to whether antenuptial contracts settling alimony and

property rights upon divorce are to be viewed in this state as void because contrary to public

policy, and hold that they are not. Nevertheless, as with all contracts, courts of this state shall

retain power to refuse to enforce a particular antenuptial contract if it is found that it is

unconscionable, obtained through fraud, misrepresentation, material nondisclosure or duress.

2. Having determined that antenuptial contracts settling property rights and alimony in the

event of divorce are not per se void, we direct our attention to the question whether the

particular contract in this case is unconscionable, unreasonable in amount or improperly

obtained.

Respondent attaches much significance to the fact that the trial court made the following

finding of fact:

“That said Pre-Marital Agreement . . . is unfair and unjust to said parties.”

[Headnote 3]

The finding, however, is merely conclusory. It indicates none of the indicia of unfairness

or ultimate facts leading to the conclusion that the agreement was unfair and unjust. We

therefore do not feel bound by the trial court's finding of fact that the contract was “unfair and

unjust.” The record does not reveal ��


fraud, misrepresentation, material nondisclosure, duress or any other ultimate fact indicating

unfairness or unconscionability of the contract.

The husband's own testimony from the record clearly shows the circumstances

surrounding the execution of the contract:

“Q: And during the course of the discussion of marriage she wanted a pre-nuptial

agreement; is that what you are telling us?

“A: It was mutually agreed.

“Q: What did he explain to you was the purpose of a antenuptial agreement?

“A: Protect both of our properties.

“Q: And that was your main desire, was it not?

“A: It was her, Stella and my desire.

. . .

“Q: But you didn't want to run a chance of just entering into a relationship where in

the event that of your death that she might inherit your property or in the event of a

divorce that you might have to divide half of your property with her, did you?

“A: No.

“Q: So, we can say, then, that you loved her with reservations.

“A: Well, to a certain extent.

“Q: But you wanted to retain your property rights and interest in your separate estate

for the benefit of your children in case something happened, right?

“A: Right.

“Q: Because you had worked hard for your property, right?

“A: Right.

“Q: And it meant something to you, didn't it?

“A: Yes.

“Q: So, you didn't enter into this agreement down there recklessly, did you?

“A: No.

“Q: And you knew what it was all about and what you were about to do, your main

purpose in going to Carelli's office was to be sure that your separate property was

secure in the event anything occurred in the future as a way of divorce or separation;

right?

“A: Right.

. . .


“Q: The amount that was arrived at was arrived at by you and Mrs. Buettner there in

discussing it with Mr. Carelli, right?

“A: Right.

“Q: You are not claiming, of course, that your name was forged to this agreement.

“A: No.

“Q: You freely and voluntarily signed it there in Mr. Carelli's office?

“A: Yes.

“Q: You are not claiming that Mr. Carelli or anybody else by duress induced you to

sign this agreement?

“A: No.

. . .

“Q: . . . She never induced you to sign it?

“A: It was just a mutual agreement.”

[Headnote 4]

In summary, we hold that the antenuptial contract should be enforced. It is not void as

against public policy, and it was fair and reasonable in its provisions, understandably and

intelligently entered into, and not obtained by fraud, misrepresentation or nondisclosure on

the part of the wife.

Accordingly, we reverse and remand this matter to the trial court for proceedings

consistent with this opinion.

Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ., concur.

____________

��89 Nev. 47, 47 (1973) George v. State��

EVERETTE LEONARD GEORGE, Appellant, v.


No. 6898

February 6, 1973 505 P.2d 1217

Appeal from jury verdict and from sentence of the Seventh Judicial Court, White Pine

County; Roscoe H. Wilkes, Judge.

Defendant was convicted before the district court of attempted murder and of being an

ex-felon in possession of a firearm capable of being concealed upon his person, and he

appealed. The Supreme Court, Mowbray, J., held that defendant who did not appeal from

order which denied his habeas �� #��


petition seeking release on ground prosecutor had failed to comply with rule in presenting

continuance motion and who rather was willing to go to trial and did so waived any

procedural defects in the continuance motion and order extending his trial date.

Affirmed.

Gary A. Sheerin, State Public Defender, and Richard Bennett, Deputy Public Defender,

Carson City, for Appellant.

Robert List, Attorney General, Carson City; and Merlyn H. Hoyt, District Attorney, White

Pine County, for Respondent.

1. Criminal Law. Prosecutor seeking continuance on ground of absence of out-of-state witness erred in failing to orally

testify as to factual matters which would have been stated in affidavit form had there been time to prepare

an affidavit as required by rule governing motions for a continuance. DCR 21.

2. Criminal Law. Defendant who did not appeal from order which denied his habeas petition seeking release on ground

prosecutor had failed to comply with rule in presenting continuance motion and who rather was willing to

go to trial and did so waived any procedural defects in the continuance motion and order extending his trial

date. DCR 21; NRS 34.380, subd. 3.

OPINION


Everette L. George was tried to a jury and convicted of attempted murder and of being an

ex-felon in possession of a firearm capable of being concealed upon his person.

He seeks reversal of his judgment of conviction upon the sole ground that the trial judge

committed reversible error in granting the State's motion for a one-week continuance of his

trial date. The case was scheduled for trial on February 1, 1972. On that date the jury was

empaneled, and all witnesses were present except one out-of-state witness from Oklahoma,

who was unable to appear. The prosecutor so advised the trial judge and moved for a

continuance. In his oral motion for the continuance, the prosecutor stated that he had learned

one hour before the trial that the witness, who had planned to travel by air from Oklahoma to

Nevada, was unable to do so because inclement weather had closed down the airport in9��


Oklahoma. The trial judge continued the trial until February 7, 1972, one week later. On that

date, and just prior to trial, George, through his trial counsel, 1 filed a petition for habeas,

seeking his release on the ground that the prosecutor had failed to comply with District Court

Rule 21 in presenting his motion for continuance. 2 The trial judge denied the habeas

petition, and the case went to trial. George was found guilty as charged.

[Headnotes 1, 2]

The prosecutor claims that he did not have sufficient time to comply with the affidavit

requirements of Rule 21. However, as counsel for appellant urges on appeal, the prosecutor

needed only to be sworn and orally testify to the factual matters that would have been stated

in affidavit form were time available to prepare an affidavit as required by the rule. Bustos v.

State, 87 Nev. 622, 491 P.2d 1279 (1971). This the prosecutor did not do, and he erred in

failing to do so. However, George may not be heard to complain, inasmuch as he did not

appeal from �� @�%��6�� ,��=�� =&�� #��

____________________

1

Counsel for appellant was not his counsel in the lower court.

2

District Court Rule 21. Motions for continuance: Contents, service or affidavits; counter-affidavits;

argument.

“1. All motions for the continuance of causes shall be made on affidavit.

“2. When a motion for the continuance of a cause is made on the ground of absence of witnesses, the

affidavit shall state:

“(a) The names of the absent witnesses and their present residences, if known.

“(b) What diligence has been used to procure their attendance or their depositions, and the causes of a failure

to procure the same.

“(c) What the affiant has been informed and believes will be the testimony of each of such absent witnesses,

and whether or not the same facts can be proven by other witnesses than parties to the suit whose attendance or

depositions might have been obtained.

“(d) At what time the applicant first learned that the attendance or depositions of such absent witnesses could

not be obtained.

“(e) That the application is made in good faith and not for delay merely.

“3. No continuance will be granted unless the affidavit upon which it is applied for conforms to this rule,

except where the continuance is applied for in a mining case upon the special ground provided by NRS 16.020.

“4. Copies of the affidavits upon which a motion for a continuance is made shall be served upon the

opposing party as soon as practicable after the cause for the continuance shall be known to the moving party.

“5. Counter-affidavits may be used in opposition to the motion.

“6. No amendments or additions to affidavits for continuance will be allowed after they have been read, and

no argument will be heard on motions for a continuance, except such as relate to the sufficiency of the affidavits

read on the hearing.”


the order below denying habeas. 3 Rather, George was willing to go to trial, and he did so, on

February 7, 1972, and he thus waived any procedural defects in the motion and order

extending his trial date. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Stockton v.

Sheriff, 87 Nev. 94, 482 P.2d 285 (1971). Appellant's judgment of conviction is affirmed.

Thompson, C. J., and Batjer, J., concur.

Zenoff, J., concurring:

I concur. But further, I do not believe appellant has been deprived of his right to a speedy

trial in the constitutional sense. Rather, absent a showing of prejudice caused by the one-week

delay, this would be a case of no more than harmless error if that issue had been raised.

Gunderson, J., concurring:

Seemingly, absent waiver of the error, Justice Mowbray would void appellant's felony

convictions because the prosecutor “erred” in failing to be sworn when asking a continuance.

Like Justice Zenoff, I cannot agree that without a “waiver” appellant should go free because

of the prosecutor's unintentional, nonprejudicial, technical “error.” Also, Justice Mowbray

suggests one hour is insufficient time to comply with the provisions of DCR 21. I hold a

higher view of the prosecutor's capacity.

Obviously, the fundamental message of the instant case could be conveyed with greater

clarity, reduced printing cost, and less confusion to the bench and Bar, by affirming

appellant's convictions in a brief “per curiam” opinion predicated on Oberle v. Fogliani, 82

Nev. 428, 420 P.2d 251 (1966). 1 In �� 0��2��

____________________

3

NRS 34.380, subsection 3:

“3. An applicant who has petitioned the district judge of a judicial district, as provided in this chapter, and

whose application for such writ is denied, may appeal to the supreme court from the order and judgment of the

district judge or district court refusing to grant the writ or to discharge the applicant, but such appeal shall be

taken within 30 days from the day of entry of the order or judgment.”

1

Three sentences would be ample, e.g.:

“PER CURIAM:

“Convicted of attempted murder and of being an ex-felon in possession of a firearm, appellant contends the

district court erred in granting the prosecutor's oral motion for continuance, made on the morning appellant

originally was to be tried. See: DCR 21.

“Although appellant challenged the continuance by petition for a writ of habeas corpus, he did not attempt to

perfect an appeal from the


such a case, so far as I can perceive, a protracted “authored” opinion serves no public

purpose.

____________________

district court's order denying habeas relief, before proceeding to trial. Thus, appellant waived any impropriety in

the court's order that granted the continuance. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966).”

____________

��89 Nev. 51, 51 (1973) Coleman v. First Nat'l Bank of Nevada��

P. ELEANOR COLEMAN, Individually and as Administratrix of the Estate of Her Father,

HERMAN WORTHMAN, Also Known as HERMAN A. WORTHMAN, Deceased,

Appellants, v. FIRST NATIONAL BANK OF NEVADA, MEYER JACOBS, MRS. HELEN

MILNE, LUCILLE CHRISTIE, and SHRINERS HOSPITAL FOR CRIPPLED CHILDREN,

Salt Lake City, Utah, Respondents.

No. 6638

February 9, 1973 506 P.2d 86

Appeal from a judgment for defendants in an action to set aside an inter vivos trust;

Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.

Daughter of deceased settlor sought to set aside revocable inter vivos trust. The Supreme

Court, Thompson, C. J., held that where interest in trust property was created in beneficiaries

other than the settlor, the disposition was not testamentary and invalid for failure to comply

with requirements of the statute of wills merely because settlor reserved a beneficial life

interest, power to revoke or amend, and power to control the trustee in the administration of

the trust.

Affirmed.

Gordon W. Rice and John Madariaga, of Reno, for Appellants.

Eli Grubic and C. B. Tapscot, of Reno, for Respondents.

1. Wills. Where interest in trust property was created in beneficiaries other than the settlor, the disposition was not

testamentary and invalid for failure to comply with requirements of the statute of � ��


wills merely because settlor reserved a beneficial life interest, power to revoke or amend, and power to

control the trustee in the administration of the trust. NRS 163.160, 163.220, 163.250.

2. Trusts. Testimony of numerous persons, plus documentary evidence consisting of letters written by settlor during

period in question, supported finding that settlor of revocable inter vivos trust was not incompetent when

he executed the trust or when be later amended it.

3. Appeal and Error. Where there was substantial evidence to support decision of trial court that settlor of revocable inter

vivos trust was competent, it was not necessary to decide on appeal whether trial court assigned the burden

of proof to the proper party.

OPINION


The district court denied the request of P. Eleanor Coleman, the surviving daughter and

sole heir at law of Herman Worthman, deceased, to set aside a revocable inter vivos trust

executed by Worthman on January 7, 1966, and subsequently amended on October 24, 1968.

The defendants to the action are the First National Bank of Nevada, the trustee of the trust,

and Meyer Jacobs, Helen Milne, Lucille Christie and the Shriners Hospital for Crippled

Children, the beneficiaries thereof.

The daughter claims that her father was incompetent when he executed the trust and the

later amendment. Also, that the trust is invalid per se. Her first allegation, that of her father's

incompetency, presented a factual issue to the trial court which was fully explored. Her

second contention that the trust per se was invalid, presented a question of law. She asks that

we overturn the judgment for the defendants arguing that the lower court's finding of her

father's competency was clearly erroneous, and its ruling on the legal issue incorrect.

The trust as originally drawn reserved to the trustor a life interest in the income and

provided for the care of his wife, Ruby, should he predecease her, and upon her death, the

trust estate was to be distributed to P. Eleanor Coleman, the plaintiff in this case, to Meyer

Jacobs and to the Elkolah Temple, fifteen percent, seventy percent, and fifteen percent

respectively. Moreover, it reserved unto the trustor, a general power to appoint the remainder,

a power to invade and consume the corpus, a power to revoke and modify the trust and, to

some �#��


extent, the power to control the trustee in the administration of the trust.

The trust instrument was drafted by a trust representative of the First National Bank who

discussed and explained the terms thereof to Mr. Worthman who was not, at that time,

advised by an attorney. The document was executed. The trustor's wife passed away the

following day. On October 24, 1968, with the counsel of an attorney, the trustor exercised his

right to amend the trust with respect to the distribution of the corpus in the event of his death.

The amendment directed distribution to Meyer Jacobs, Helen Milne, Lucille Christie and the

Shriners Hospital for Crippled Children, thirty-five percent, twenty percent, fifteen percent,

and thirty-percent respectively. His daughter, P. Eleanor Coleman was to receive the sum of

one dollar. Mr. Jacobs and Mrs. Milne were close personal friends. Lucille Christie was his

niece. P. Eleanor Coleman was the daughter of the trustor's first marriage which was ended by

divorce when Eleanor was eight years old. Their relationship during the many years that

followed was not close.

During the term of the trust, Mr. Worthman, from time to time, made suggestions to the

trustee concerning the administration of the trust. He died on August 8, 1969, more than three

years after the creation of the trust and almost ten months after the amendment thereto. He

was then 83 years old. The trust estate is valued at about $60,000.

We turn first to consider whether the trust instrument is valid, for if the daughter's

challenge in this regard is upheld, the judgment must be set aside, and the remaining claim of

error may be disregarded.

[Headnote 1]

1. The typical inter vivos trust reserves to the settlor the right to trust income for life and

the power to revoke or amend, and provides for the disposition of the trust principal upon the

settlor's death. Several early cases held these transfers invalid as attempted testamentary

dispositions not executed with the requisites of a will, or as incomplete transfers because of

the settlor's retention of controls over the property. For example: McEvoy v. Boston Five

Cents Sav. Bank, 87 N.E. 465 (Mass. 1909); Warsco v. Oshkosh Sav. & Trust Co., 196 N.W.

829 (Wis. 1924). The appellant suggests that we adopt this early view. We decline to do so.

The Rest. of Trusts, 2d ed., § 57, accurately reflects the modern authority on the subject.

“Where an interest in the trust property is created in a beneficiary other than the settlor, �� ) ��3 �� 2


the disposition is not testamentary and invalid for failure to comply with the requirements of

the Statute of Wills merely because the settlor reserves a beneficial life interest or because he

reserves in addition a power to revoke the trust in whole or in part, and a power to modify the

trust, and a power to control the trustee as to the administration of the trust.” Accord: Hall's

Estate v. Father Flanagan's Boys Home, 491 P.2d 614, 616 (Colo.App. 1971); Denver

National Bank v. Von Brecht, 322 P.2d 667 (Colo. 1958); Potter v. Winter, 280 S.W.2d 27

(Mo. 1955); Cleveland Trust Co. v. White, 15 N.E.2d 627 (Ohio 1958). We approve the

Restatement expression.

Indeed, certain parts of our statutory law are in harmony with that expression. For

example, we expressly recognize pourover provisions by will into an inter vivos trust even

though such trust is amendable or revocable, or both. Uniform Testamentary Additions to

Trusts Act, NRS 163.220 to NRS 163.250. And, our Uniform Trusts Act contemplates power

in the settlor to amend the trust, alter or deny certain powers and privileges statutorily

conferred upon the trustee, and to add duties and powers to those statutorily granted to the

trustee. NRS 163.160.

We, therefore, agree with the district court that the Worthman Trust per se is valid.

[Headnotes 2, 3]

2. The factual issue of Mr. Worthman's competency was fully explored. Several of his

friends, a nurse, a doctor, a dentist, the trust officer of the bank, and his attorney, all attested

to his competency. Persuasive documentary evidence consisting of almost fifty letters written

by Mr. Worthman during the period from February 1966 to June 1969 was before the trial

court. Contrary evidence served only to create a conflict which the trial court resolved against

the appellant. Its decision on this issue is neither against the evidence nor palpably contrary to

it. Cf. Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969). We shall not disturb its ruling.

Since there was substantial evidence to support that decision we need not decide whether the

trial court assigned the burden of proof to the proper party. Close v. Flanary, 77 Nev. 87, 104,

360 P.2d 259 (1961).

Affirmed.

Mowbray, Gunderson, and Zenoff, JJ., and O'Donnell, D. J., concur.

____________

��89 Nev. 55, 55 (1973) Arrate v. Nevada National Bank��

DANIEL ARRATE and SANDRA ARRATE, Appellants,

v. NEVADA NATIONAL BANK, Respondent.

No. 6923

February 13, 1973 506 P.2d 86

Appeal from order granting summary judgment, Second Judicial District Court, Washoe

County; John E. Gabrielli, Judge.

The Supreme Court held that appellants' motion for rehearing, which was filed on

February 7th, did not toll running of 30-day period for filing notice of appeal, so that where

on February 3 respondent's counsel served appellants' counsel simultaneously with an order

that granted respondent summary judgment and with written notice of such order's entry, and

notice of appeal was filed on March 23, purported appeal was untimely and would be

dismissed.

Appeal dismissed.


Seymour H. Patt, of Reno, for Appellants.

Guild, Hagen & Clark, Ltd., of Reno, and Jack B. Ames, of Elko, for Respondent.

Appeal and Error.

Appellants' motion for rehearing, which was filed on February 7th, did not toll running of 30-day

period for filing notice of appeal, so that where on February 3 respondent's counsel served appellants'

counsel simultaneously with an order that granted respondent summary judgment and with written notice

of the order's entry, and notice of appeal was filed on March 23, purported appeal was untimely and

would be dismissed. DCR 20(4); NRCP 73(a).

OPINION

Per Curiam:

On February 3, 1972, respondent's counsel served appellants counsel simultaneously with

an order that granted respondent summary judgment, and with written notice of said order's

entry. On February 7, 1972, appellants' counsel filed a paper titled “Motion to Reconsider

Decision,” which he concedes was at most a motion for rehearing under DCR 20(4), and not

one of those motions which, by specific provisions of NRCP 73(a), toll the time for appeal.

By order entered March =�� =&�� +�0;�� %�� <�� 2��+�� +��,��@�� ;��&@�� =&�

��89 Nev. 55, 56 (1973) Arrate v. Nevada National Bank��

7, 1972, the court denied appellants' “Motion to Reconsider Decision,” and appellants'

counsel attempted to appeal this order and the court's order of February 3, through a notice of

appeal filed March 23, 1972.

Since a motion for rehearing pursuant to DCR 20(4) does not toll the running of the

30-day period for filing notice of appeal, appellants' purported appeal was untimely, and

therefore must be and hereby is dismissed. Whitehead v. Norman Kaye Real Estate, 80 Nev.

383, 395 P.2d 329 (1964).

____________

��89 Nev. 56, 56 (1973) Meinhold v. Clark County School Dist.��

ALVIN R. MEINHOLD, Appellant, v. THE CLARK COUNTY SCHOOL DISTRICT,

BOARD OF SCHOOL TRUSTEES OF THE CLARK COUNTY SCHOOL DISTRICT, MR.

GLEN C. TAYLOR, MRS. HELEN C. CANNON, MR. JOHN F. ANDERSON, DR.

CLARE W. WOODBURY, MR. C. DONALD BROWN, MR. JAMES C. ANDRUS, MR.

DAVID CANTER, DR. KENNY C. GUINN, Respondents.

No. 6811

February 14, 1973 506 P.2d 420

Appeal from an order of the Eighth Judicial District Court, Clark County; Carl J.

Christensen, Judge.

County board of school trustees refused to renew teacher's employment contract, and

teacher filed petition for writ of certiorari. The district court dismissed the petition, and

teacher appealed. The Supreme Court, Batjer, J., held that evidence was sufficient to sustain

charge of unprofessional conduct against teacher who persistently authorized and encouraged

his daughters not to attend school in defiance of laws of state and to support finding of cause

for non-renewal of teacher's employment contract.

Affirmed.


Robert N. Peccole, of Las Vegas, for Appellant.

Robert L. Petroni, of Las Vegas, for Respondents.

1. Schools and School Districts. In reviewing determination of county board of school trustees not to renew teacher's employment

contract, district court was limited to a review of the record of the evidence presented �� #�� 5�� +��


to the board to determine if it had exceeded its jurisdiction and whether there was cause to refuse to rehire

teacher; function of Supreme Court, on teacher's appeal from order of district court denying petition for

writ of certiorari, was identical to that of district court. NRS 34.090.

2. Courts. A challenge to jurisdiction may be raised at any time, cannot be based upon a mere conclusion and must

be supported by competent evidence.

3. Schools and School Districts. Even though school district regulation requiring that a notice of non-renewal be given by the first

Friday in March was set out in brief, where regulation was never introduced into evidence at any point in

proceedings and was not in record, appellate court could not consider contention that teacher was not

notified of non-renewal of contract

in accordance with regulation. NRS 391.311-391.3197, 391.317, subd. 1, 391.3196, subd. 1.

4. Schools and School Districts.

Where teacher who participated fully in hearing before county board of school trustees regarding

renewal of teacher's employment contract never raised alleged procedural errors relating to notice of

non-renewal of contract, notice of specific facts supporting charges against him, notice of availability of

rules of procedure applicable to his hearing and introduction of illegal evidence at hearing but raised such

alleged errors for first time in brief filed with district court, teacher waived alleged errors. NRS 391.313,

391.317.

5. Appeal and Error. Burden is upon appellant to demonstrate from record that he has been prejudiced by claimed error.

6. Appeal and Error. Where record fails to show what a party expected to prove by testimony of a witness, no prejudice is

shown by failure to reopen case and allow party to call witness, and none will be presumed.

7. Trial. If litigant fails to disclose to trier of fact nature of testimony sought to be offered, it is not error for trier

of fact to refuse to allow litigant the opportunity to introduce further testimony after he his rested his case.

8. Constitutional Law. Refusal of president of board of school trustees to allow teacher to reopen case regarding non-renewal

of teacher's employment contract in order to call witnesses did not deny teacher due process, where teacher

did not reveal identity of prospective witnesses or make offer of proof to indicate what testimony might

have been elicited.

9. Constitutional Law. Teachers may not be compelled to relinquish the First Amendment rights that they would otherwise

enjoy as citizens to comment on matters of public interest in connection with operation of public schools in

which they work, in absence of proof of false statements knowingly or recklessly made. U.S.C.A.Const.

Amend. 1.


10. Schools and School Districts. A teacher's influence upon his pupils is not limited to what he says and does in the schoolroom, and a

teacher's right to teach cannot depend solely upon his conduct in the schoolroom.

11. Schools and School Districts. County board of school trustees, in reviewing recommendation not to renew teacher's employment

contract, had right to weigh the evidence, resolve conflicts in evidence, judge credibility of witnesses and

find facts relevant to the issues.

12. Schools And School Districts. Evidence was sufficient to sustain charge of unprofessional conduct against teacher who persistently

authorized and encouraged his daughters not to attend school in defiance of laws of state and to support

finding of cause for non-renewal of teacher's employment contract. NRS 391.312, subd. 1(c),

392.100-392.220.

OPINION


This appeal is taken from an order of the district court dismissing appellant's petition for a

writ of certiorari. That order of the district court had the effect of affirming the action of the

Clark County Board of School Trustees (hereinafter referred to as the “board”) in refusing to

renew an employment contract for the appellant, a teacher in the Clark County School

District.

For several alleged reasons, including unprofessional conduct, insubordination, inadequate

performance and failing to comply with such reasonable requests as the board may prescribe,

the appellant was notified in March of 1971 that his contract with the Clark County School

District would not be renewed for the 1971-72 school year. The notice of dismissal was given

pursuant to the requirements of NRS 391.312 to 391.3196, inclusive.

The appellant requested a hearing before a panel of the professional review committee

(NRS 391.316-391.3195). That panel upheld the recommendation that the appellant's contract

not be renewed. The appellant then sought relief from the board and the board also approved

the recommendation.

[Headnote 1]

The district court in reviewing the determination of the board was limited to a review of

the record of the evidence presented to the board to determine if it had exceeded its

jurisdiction and whether there was cause to refuse to rehire the appellant. NRS 34.090; Luc v.

Oceanic Steamship Co., 84 $��(="��!!(�:�&�'=/�>� "'?5��A��%��=/$��!!


Nev. 576, 445 P.2d 870 (1968); State v. Bd. of Regents, 70 Nev. 144, 261 P.2d 515 (1953);

Richardson v. Bd. of Regents, 70 Nev. 347, 769 P.2d 265 (1954).

Unlike Richardson v. Bd. of Regents, supra, which was an original proceeding in certiorari

to review the action of the board of regents of the University of Nevada, this is an appeal

from a order of the district court denying certiorari. When the determination of an inferior

tribunal, in this case the board of trustees, is challenged by certiorari, the function of this

court is identical to that of the district court. Cf. Barnum v. Williams, 84 Nev. 37, 436 P.2d

219 (1968); Bd. Chiropractic Exam'rs. v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967); Miller

v. Munger, 88 Nev. 405, 498 P.2d 1336 (1972); Miller v. West, 88 Nev. 105, 493 P.2d 1332

(1972).

The appellant does not contend that there was any defect in the notice of non-renewal of

his contract, given pursuant to NRS 391.312-391.319, 1 but alleges that he was not notified in

accordance with Clark County School District regulation 4413(f). 2 On this basis he

challenges the entire proceedings and specifically the jurisdiction of the board to conduct a

hearing and approve the recommendation of non-renewal.

[Headnotes 2, 3]

1. Although a challenge to jurisdiction may be raised at any time, (Stock Growers and

Rancher's Bank v. Milisich, 48 Nev. 373, 233 Pac. 41 (1925); Pershing Quicksilver Co. v.

Thiers, 62 Nev. 382, 152 P.2d 432 (1944); Provenzano v. Long, 64 Nev. 412, 183 P.2d 639

(1947)), it cannot be based upon a mere conclusion but must be supported by competent

evidence. Both the district court and this court must confine review to the facts contained in

the record. Clark County School District regulation 4413(f) was never introduced into

evidence at any point in the proceedings and is not in the record, although it is set out in

appellant's brief and is referred to in respondent's brief. In Lindauer v. Allen, 85 Nev. 430,!("�:�&�'(��>� " ?�� B�0��C,D�� 2

____________________

1

No contention has been raised by the appellant that the provisions of NRS 391.311 to 391.3197 are not

applicable to him because he had entered into a contract with the board as a result of the Local

Government-Employee-Management Relations Act providing separate provisions relating to the board's right to

dismiss or refuse to employ him. See NRS 391.3197(2).

2

Clark County School District regulation (4413(f)) apparently required that a notice of non-renewal must be

given by the first Friday in March. The appellant had been notified of non-renewal of his contract pursuant to

NRS 391.317(1) and NRS 391.3196(l) on March 9, 1971, which was the second Friday in March, 1971.


456 P.2d 851 (1969), we said: “. . . [F]acts in the briefs of counsel will not supply a

deficiency in the record.” Mitchell v. Bromberger, 2 Nev. 345 (1866); Wilson v. Wilson, 55

Nev. 57, 24 P.2d 317 (1933); A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Lee v.

Sheriff of Clark County, 85 Nev. 379, 455 P.2d 623 (1969); Jernigan v. Sheriff of Clark

County, 86 Nev. 387, 469 P.2d 64 (1970); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701

(1970).

The appellant further contends that: (1) Notice of nonrenewal of contract was given by a

deputy superintendent of the school district rather than the superintendent as required by NRS

391.317; that (2) the appellant was not adequately informed in advance of the board hearing

of specific facts which supported the charges against him; (3) he was not admonished

regarding the alleged violations prior to notice of non-renewal nor was he allowed sufficient

time for improvement as required by NRS 391.313; (4) he was never notified of, nor was he

informed as to the availability of rules of procedure adopted by the State Board of Education

and applicable to hearings conducted by boards of trustees of school districts; and (5) illegal

evidence was introduced before the board in the nature of memos, reports and written

documents taken from the appellant's personnel file.

[Headnote 4]

2. The appellant participated fully in the hearing before the board and the alleged

procedural errors were never raised at that hearing but were raised for the first time in his

brief filed with the district court. It must be deemed that they have been waived if in fact they

ever existed. Chiatovich v. Young, 61 Nev. 286, 127 P.2d 218 (1942). In any event, none of

the alleged errors go to the question of jurisdiction or cause.

[Headnote 5]

3. The appellant also claims that he was denied due process of law when the president of

the board refused to allow him to reopen his case in order to call witnesses. At the conclusion

of his presentation the appellant was specifically asked if he had any other witnesses. He told

the president of the board that he had none and the president proceeded with the hearing.

Thereafter the appellant interrupted and indicated that he wished to call certain persons who

were present. Now, he contends that he was denied due process when he was precluded from

reopening his case. He never revealed the identity of the prospective witnesses, nor did he

make an offer of proof to indicate what testimony might have been elicited. We have ��


nothing before us upon which to determine whether he was in any way prejudiced. The

burden is upon the appellant to demonstrate from the record that he has been prejudiced by

the claimed error. Tobin v. Seaborn, 58 Nev. 432, 82 P.2d 746 (1938). In Re Gamble, 93

S.E.2d 66 (N.C. 1956).

[Headnotes 6-8]

Where the record fails to show what an appellant expected to prove by the testimony of a

witness, no prejudice is shown and none will be presumed. Grosjean v. Spencer, 140 N.W.2d

139 (Iowa 1966); In Re Gamble, supra; Barringer v. Weathington, 182 S.E.2d 239 (N.C.App.

1971); Shaver v. Shaver, 478 S.W.2d 871 (Tex.App. 1972); 4 C.J.S. Appeal and Error § 291;

5 Am.Jur.2d Appeal and Error § 604. If a litigant fails to disclose to the trier of fact the nature

of the testimony sought to be offered it is not error for the trier of fact to refuse to allow the

litigant the opportunity to introduce further testimony after he has rested his case. United

Hardware-Furniture Co. v. Blue, 52 So. 364 (Fla. 1910). Here upon the entire record it

appears that the appellant was accorded full due process of law.

4. Finally the appellant contends that the evidence presented to the board did not, as a

matter of law, support a finding of cause for non-renewal of his contract.

The exhibits, together with some testimony by the school district's witnesses, and the

testimony of the appellant 3 before the board clearly revealed that appellant had informed his

daughters, who were students at the school where he taught, ��

��

____________________

3

[Mr. Meinhold]: “I am perfectly glad we are going into all the evidence Mr. Schnepp has presented, but I

did want to read a statement, what you call an opening statement, with regard to the findings of the Professional

Review Panel, and the Professional Review Panel supported Mr. Schnepp on all of his charges beginning with

the first one, unprofessional conduct.

“I would like to read that charge so that everyone in the audience can hear. Unprofessional conduct: Mr.

Meinhold stated to the Panel his children had been given permission by him to remain out of school whenever

they so desired. He also stated several times publicly and to the Panel school was harmful to children and should

be discontinued. There was a transcript of this meeting of the Professional Review Panel. I would be willing to

stand corrected, but those are not my words with regard to this “should be discontinued,' since that says—I stated

that I am being misquoted. I have, though, on a number of occasions stated that schools are harmful for children

and I did so state to the Professional Review Panel. . . .”

[Cross-examination] BY MR. PETRONI [Attorney for the school district]:

“Q. Getting back to your children not being in school, it is your


that they need not attend school if they were not so inclined and as a result they were absent a

substantial part of the time, resulting in action by the civil authorities.

In support of his position that, as a matter of law, the evidence did not support the board's

conclusion and recommendation, the appellant relies on Richardson v. Board of Regents ��A��A��;��7#��=&�$��&/

____________________

belief or statement that you did not believe in obeying the law in the school attendance?

[Mr. Meinhold] “A. No, I never said that. I am afraid I am going to have to go into some detail on this with

regard to the school attendance of my daughters.

“Two of them are Garside students, as he mentioned earlier. My daughters know that on those days they

choose not to go to school they are not going to be forced to go to school. I am in total disagreement with the

compulsory school attendance law. I was somewhat remiss with regard to the law. I didn't know how stringent it

was. I really didn't realize the wording of the law until, it must have been Mr. Schnepp or one of the people at

Garside, started some kind of truancy action against my oldest daughter and we were required, as he stated

earlier, to go to a hearing, and at that time I was presented with the fact with regard to the law. Since then that

particular daughter has quite regular attendance, but again I don't force her. She was quite put out by the whole

procedure, including the hearing with the gentleman out at Bonanza road, and attended school fairly regularly

from there on.

“Q. I am not quite clear—

“A. I am not advocating breaking the law for anyone else.

“Q. You say you are not familiar with the law. Aren't you required to take Nevada School Law to receive a

certificate?

“A. We took a test which is about like all other tests. We came in Saturday morning, because I wasn't a

resident, you see, and I passed with fairly high scores, which doesn't mean I know Nevada School Law. There is

a great deal to it. . . .”

[Mr. Cantor of the board, questioning Mr. Meinhold]:

“On unprofessional conduct I am not especially concerned about what you believe, but I am concerned about

what you advocate, in a certain contest. Now, you advocate that children or parents—let me rephrase it. Do you

advocate that children should not attend school or parents should not send them to school?

[Mr. Meinhold] “THE WITNESS: No.

“MR. CANTOR: Then I take it, then, the amount of your advocacy is limited to the law should be changed

somehow?

“THE WITNESS: The compulsory school attendance law, I think they should have a choice, is what I am

saying.

“MR. CANTOR: As long as it is law do you go along with the idea it has got to be obeyed?

“THE WITNESS: I can't answer that question.

“MR. CANTOR: All right. Now, as I understand it, you did not have any children in Garside; is that correct?

“THE WITNESS: Two.

“MR. CANTOR: I am sorry.

“THE WITNESS: Two daughters.

“MR. CANTOR: You have two children of your own there?

“THE WITNESS: Right.”


and Boswell v. Bd. Med. Ex., 72 Nev. 20, 293 P.2d 424 (1956). Although the Richardson

case tends to support the appellant's contention with reference to some of the other charges

levied against him, it does not support his position in regards to the charge of unprofessional

conduct because Richardson was not accused of unprofessional conduct. In Boswell v. Bd.

Med. Ex., supra, Boswell was charged with unprofessional conduct, but that case can be

distinguished because the charge was based entirely upon extremely harsh criticism levied

against other doctors and members of the medical profession in his community. There this

Court said: “It has never been held that the public health, safety or morals requires protection

through the suppression of criticism of individual doctors or criticism of the medical

profession as a whole, no matter how harsh the terms in which such criticism is expressed.”

See Pickering v. Board of Education, infra. Here the unprofessional conduct was based in part

upon the appellant's conduct in refusing to require his daughters to attend school in defiance

of the laws of this state. NRS 392.100-392.220. We believe this to be sufficient cause to

support the board's finding of unprofessional conduct. Without citing any authority the

appellant contends that the grounds for dismissal specifically charged against the appellant

are without defined standards and guidelines and are constitutionally vague and in violation

of fundamental due process. In Moore v. Board of Trustees this court adopted with approval

the language from in In re Mintz, 378 P.2d 945, 948 (Ore. 1963): “. . . [T]he variety of forms

which unprofessional conduct may take makes it infeasible to attempt to specify in a statute

or regulation all of the acts which come within the meaning of the term. The fact that it is

impossible to catalogue all of the types of professional misconduct is the very reason for

setting up the statutory standard in broad terms and delegating to the board the function of

evaluating the conduct in each case. . . .” Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95

L.Ed. 886 (1951); Board of Education of City of Los Angeles v. Swan, 261 P.2d 261 (Cal.

1953); cf. Friedman v. State, 249 N.E.2d 369 (N.Y. 1969).

[Headnote 9]

Teachers may not be compelled to relinquish the First Amendment rights that they would

otherwise enjoy as citizens to comment on matters of public interest in connection with the

operation of public schools in which they work, absence of proof of false statements

knowingly or recklessly made. Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed. 811,

88 ��


S.Ct. 1731 (1968). 4 Here, however, the appellant persisted in authorizing and encouraging

his daughters not to attend school and he indicated that he would continue to allow his

daughters to be truant in violation of the law. 5 NRS 312.100 to 312.202. It was this conduct

and not any statements he made which were productive of harmful disorganization and chaos

among the students, teachers and administrators not only Garside Junior High School but

throughout the entire school system.

The appellant expressed disagreement with the laws requiring compulsory attendance at

school and his carrying of that attitude into effect was a prerogative he was entitled to indulge

but with it went the price that he might not be rehired. This conduct on the part of the

appellant evidenced a lack of professional fitness and responsibility to the teaching profession

and to the school system.

[Headnote 10]

A teacher's influence upon his pupils is not limited to what he says and does in the

schoolroom and a teacher's right to teach cannot depend solely upon his conduct in the

schoolroom. Kaplan v. School Dist. of Philadelphia, 130 A.2d 672 (Pa. 1957); Jarvella v.

Willoughby-Eastlake City Sch. Dist. 233 N.E.2d 143 (Ohio 1967). In Johnson v. Taft School

Dist., 65 P.2d 912 (Cal.App. 1937), unprofessional conduct was established by evidence

showing a long drawn out course of conduct on the part of the teacher that produced serious

friction in the school and showed insubordination on her part and a refusal to conform to the

instructions and requirements of her superiors. Laba v. Board of Ed. of Newark, 129 A.2d

273 (1957). In Robel v. Highline Public Schools, District No. 401, 398 P.2d 1 (Wash. 1965),

it was held that classroom organization, control and discipline are so vital to the success of a�� 1��

____________________

4

See Board of Education of City of Los Angeles v. Swan, 261 P.2d 261 (Cal. 1953), where it was held that

derogatory utterances concerning the school board made by a teacher outside of classrooms amounted to

unprofessional conduct and constituted sufficient grounds for dismissal. Also in Laguna Beach Unified School

District v. Lewis, 304 P.2d 59 (Cal.App. 1956), it was held that derogatory and disloyal utterances made against

this country by a teacher amounted to unprofessional conduct and constituted sufficient grounds for dismissal.

5

In Vance v. Board of Ed. of Pekin Com. H. Sch. Dist. No. 303, 277 N.E.2d 337 (Ill.App. 1971), the

dismissal of a teacher was upheld when he was advised teenage students demonstrate and walk out of school in

order to obtain “student power,” and where he indicated that in the future under like circumstances he would

conduct himself as he had in the past.


teaching program that failure of a teacher in this area was sufficient cause for non-renewal of

a contract.

[Headnotes 11, 12]

The trial court found, as a matter of law, that the evidence presented to the board was

sufficient to sustain any or all of the enumerated grounds for dismissal. The board had the

right to weigh the evidence, resolve conflicts in the evidence, to judge the credibility of

witnesses and to find the facts relevant to the issues. The appellant was not rehired for cause,

a cause which he and he alone created. The evidence is sufficient to sustain the charge of

unprofessional conduct. (NRS 391.312(1)(c).) That finding is sufficient to support the

judgment and a consideration of the remaining charges becomes unnecessary. Appeal of

School District of City of Bethlehem, 32 A.2d 565 (Pa. 1943); Board of Education of

Richmond Sch. Dist. v. Mathews, 308 P.2d 449, 452 (Cal.App. 1957).

Affirmed.

Thompson, C. J., and Mowbray, Gunderson, and Zenoff, JJ., concur.

____________

��89 Nev. 65, 65 (1973) El Capitan Club v. Fireman's Fund Ins.��

EL CAPITAN CLUB, a Nevada Corporation, Appellant, v. FIREMAN'S FUND

INSURANCE COMPANY, a Corporation, Respondent.

No. 6886

February 21, 1973 506 P.2d 426

Appeal from judgment of Second Judicial District Court, Washoe County; John W.

Barrett, Judge.

Action by insured against insurer seeking a declaratory judgment. The district court

dismissed the complaint on ground that it was prematurely filed, and insured appealed. The

Supreme Court, Mowbray, J., held that action by insured against insurer for declaratory

judgment should have been entertained and decided, where suit sought a ruling that insurance

policy covered insured, where numerous suits had been filed in California against insured as

the result of an airplane crash, and where it appeared that an early resolution of the question

of coverage would be advantageous to all parties, in that it could be meaningful in the manner

of pretrial settlement negotiations of pending cases in California, and where early resolution

of the question would benefit insurer, since it had �� #��


committed itself to defending numerous lawsuits pending in California, which litigation

might extend over a considerable period of time.

Reversed and remanded for a full hearing.


Guild, Hagen & Clark, of Reno, and Jones and Bednar and Louis R. Hersh, of Los

Angeles, California, for Appellant.

Vargas, Bartlett & Dixon, Ltd., and Frederic R. Starich, of Reno, for Respondent.

1. Declaratory Judgment. Whether making a determination is proper in an action for declaratory relief is a matter within the trial

judge's discretion which will not be disturbed on appeal unless abused.

2. Declaratory Judgment. Before court may properly exercise its discretion to refuse declaratory relief on the ground that other

remedies are available, it must clearly appear that the asserted alternative remedies are available to the

plaintiff seeking the declaratory relief, and that such remedies are speedy and adequate or as well suited to

the plaintiff's needs as is declaratory relief.

3. Declaratory Judgment. Action by insured against insurer for declaratory judgment should have been entertained and decided,

where suit sought a ruling that insurance policy covered insured, where numerous suits had been filed in

California against insured as the result of an airplane crash, and where it appeared that an early resolution

of the question of coverage would be advantageous to all parties, in that it could be meaningful in the

manner of pretrial settlement negotiations of pending cases in California, and where early resolution of the

question would benefit insurer, since it had committed itself to defending numerous lawsuits pending in

California, which litigation might extend over a considerable period of time. NRCP 41(b); NRS

30.080.

OPINION


This is an appeal from an order of the district court dismissing Appellant El Capitan Club's

complaint for a declaratory judgment, on the ground that the complaint was prematurely filed.1

1. The action is predicated on a comprehensive general liability insurance policy issued by

Respondent Fireman's Fund ��7�� ,�� .�� .��

____________________

1

The dismissal was granted during the examination of the first witness called by the Club, on motion of the

respondent-defendant. The Club, for the record, made an offer of proof of the remaining witness's testimony.

The judge granted the dismissal pursuant to NRCP 41 (b).


Insurance Company to El Capitan Club, wherein the Fund agreed on behalf of the Club to pay

all sums that the Club should become legally obligated to pay as damages arising from bodily

injury or property damage to third persons, the liability being limited in the policy to $1

million per person and $1 million in the aggregate.

The Club owns and operates a hotel-casino in Hawthorne, Nevada. It was doing business

as such on February 18, 1969, at which time the policy was in full force and effect. On that

date an aircraft owned and operated by Mineral County Airlines, Inc., while on a return flight

from Hawthorne, Nevada, to Burbank, California, crashed in California. All 32 passengers,

who had been guests of the Club, and the plane's crew, perished in the crash. The Club had a

working agreement with Mineral Airlines to fly patrons in California to its hotel in

Hawthorne.

As a result of the crash, numerous suits have been filed in several California courts,

naming Mineral Airlines and the Club as defendants. The Club requested Fireman's Fund to

defend the suits on its behalf. Fireman's Fund initially declined to do so, but 2 years later

agreed to defend and is presumably representing the Club, but with a reservation. The Fund

claims that it is not liable under the policy for any damages arising out of the plane crash.

This is the precise question the Club wishes decided in its action for declaratory relief. The

Fund has denied coverage, under the exclusionary clauses of its policy, one of which

excluded coverage as to the ownership, maintenance, and operation of any aircraft, 2 and

another of �� @

____________________

2

The exclusion reads:

“IT IS AGREED THAT UNDER PART I LIABILITY COVERAGE EXCLUSION (B)(1) IS DELETED IN

ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED THEREFOR:

“THE POLICY DOES NOT APPLY UNDER COVERAGES PART I TO (1) THE OWNERSHIP,

MAINTENANCE, OPERATION OR USE, LOADING OR UNLOADING OF AIRCRAFT, AND (2) EXCEPT

WITH RESPECT TO OPERATIONS PERFORMED BY INDEPENDENT CONTRACTORS AND EXCEPT

WITH RESPECT TO LIABILITY ASSUMED BY THE INSURED UNDER A CONTRACT AS DEFINED

HEREIN, TO THE OWNERSHIP, MAINTENANCE, OPERATION, USE, LOADING OR UNLOADING OF

(A) WATERCRAFT, IF THE OCCURRENCE OR ACCIDENT OCCURS AWAY FROM PREMISES

OWNED BY, RENTED TO OR CONTROLLED BY THE NAMED INSURED, EXCEPT INSOFAR AS THIS

PART OF THIS EXCLUSION IS STATED IN THIS POLICY TO BE INAPPLICABLE: (B)

AUTOMOBILES, IF THE OCCURRENCE OR ACCIDENT OCCURS AWAY FROM SUCH PREMISES OR

THE WAYS IMMEDIATELY ADJOINING.”


which denied coverage for any damages arising in an arrangement where the Club was

involved in a partnership or joint venture and where the other partner or joint venturer was

not designated as a named insured in the policy. 3

2. The district judge dismissed the declaratory action on the ground that it was premature.

It is true that a court may refuse to enter a declaratory judgment where to do so would not

terminate the controversy giving rise to the action. NRS 30.080. 4

[Headnote 1]

Additionally, whether a determination is proper in an action for declaratory relief is a

matter within the trial judge's discretion that will not be disturbed on appeal unless abused.

Hannula v. Hacienda Homes, Inc., 211 P.2d 302 (Cal. 1949). In the instant case, we believe

that the trial judge should have entertained the action for declaratory judgment and decided it.

The Club, in support of its position that the court below should have entertained the

complaint for declaratory relief, relies upon General Ins. Co. v. Whitmore, 45 Cal.Rptr. 556

(Cal.App. 1965), hearing denied Sept. 15, 1965 (Cal. 1965). There, the California court held

that an action for a declaratory judgment was not premature, though it was brought before any

judgment was recovered against the insured by the injured persons. The court further stated

that declaratory relief is frequently invoked to determine whether coverage exists under an

insurance policy in view of the facts alleged.

The Fund, on the other hand, relies upon General of America Ins. Co. v. Lilly, 65 Cal.Rptr.

750 (Cal.App. 1968), hearing denied Mar. 28, 1968 (Cal. 1968), wherein General of America

Ins. Co., the insurer, filed an action for declaratory relief. The policy in that case contained a

clause providing that an operator of a motor vehicle driving with the permission of the owner

would be insured under the terms of the policy. The ��

____________________

3

The limitation reads:

“This insurance does not apply to bodily injury or property damage arising out of (1) a non-owned

automobile used in the conduct of any partnership or joint venture of which the insured is a partner or member

and which is not designated in this policy as a named insured, or (2) if the named insured is a partnership, an

automobile owned by or registered in the name of a partner thereof.”

4

NRS 30.080:

“The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if

rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”


issue presented in the declaratory relief complaint was whether the driver of the vehicle

owned by the insured was, at the time of the accident, acting within the course and scope of

his agency and with the consent of the insured. The defendant moved to dismiss the

complaint on the ground that the issue of permission and consent was an ultimate issue which

could be determined in the tort action. The trial court granted the motion for dismissal, and

the California appellate court affirmed, stating, in part, 65 Cal.Rptr. at 754:

“The declaratory relief statute should not be used for the purpose of anticipating and

determining an issue which can be determined in the main action. . . .”

This is not the case in the present appeal. The beneficial results of an early determination

of the issue of coverage under the policy are manifest. Subsequent to the fatal accident,

approximately 18 separate lawsuits for wrongful death were filed in California, with the Club

as a named defendant; if tried, the cases will be decided by different juries. Most, if not all, of

these complaints allege that the Club was engaged in a common enterprise or joint venture

with Mineral Airlines and that the Club negligently inspected, maintained, or operated the

fatal craft. Some of these actions have been settled by another insurance carrier, with the

Club's approval, within the limits of its other coverage. If the remaining cases are tried, it is

evident that the several juries may reach different conclusions as to the validity of the

allegation that the Club was a coadventurer or engaged in a joint enterprise with Mineral

Airlines. Accordingly, it cannot be fairly contended that the related issue of coverage sought

to be determined in the present case will necessarily be determined in the California cases.

Moreover, the issue may not even be reached if the juries were to rule there for the Club on

the question of liability. And, of course, all of the litigated cases would further be subject to

appellate review. During this time—perhaps years—the important question of coverage

would be in limbo. This cannot be the most expeditious and effective manner of reaching the

issue of coverage. We believe that in the instant case more effective relief can be granted in

the present declaratory judgment action. As the California court said in Jones v. Robertson,

180 P.2d 929, 933 (Cal.App. 1947), hearing denied July 17, 1947 (Cal. 1947), in quoting

from Borchard's “Declaratory Judgments,” 2d ed., at 302-303:

“. . . ‘it is wrong for courts to decline a declaration on the mere ground that another

remedy was available, for declaratory relief was not intended to be exclusive or extraordinary,��


but alternative and optional. It is only where the court believes that more effective relief can

and should be obtained by another procedure and that for that reason a declaration will not

serve a useful purpose, that it is justified in refusing a declaration because of the availability

of another remedy.'” (Emphasis in original.)

[Headnotes 2, 3]

It is clear that an early resolution of the question of coverage will be advantageous to all

parties. It could be meaningful in the mandatory pretrial settlement negotiations of the

pending cases in California. Indeed, it would appear that even the Fund should be desirous of

an early determination of its liability, since it has now committed itself to defending the

numerous lawsuits pending in California, which litigation may extend over a considerable

period of time.

Declaratory judgments have been sought more often in insurance litigation than in any

other field. Reed v. Pacific Indem. Co., 225 P.2d 255 (Cal.App. 1950), hearing denied Feb. 8,

1951 (Cal. 1951); 62 Harv.L.Rev. 787 (1949). To the insured, the expectation that the insurer

will perform its obligations may be as important as the performance itself. An action is not

premature even though it is brought before any judgment is recovered against the insured by a

third party. Declaratory relief is frequently sought to determine whether coverage exists under

an insurance policy. We hold that, before a court may properly exercise its discretion to

refuse declaratory relief on the ground that other remedies are available, it must clearly appear

that the asserted alternative remedies are available to the plaintiff seeking declaratory relief,

and that such remedies are speedy and adequate or as well suited to the plaintiff's needs as is

declaratory relief. General Ins. Co. v. Whitmore, supra. That showing is not present in the

record before us. We therefore reverse the order dismissing the complaint, and we remand the

case for a full hearing in the court below.


____________

��89 Nev. 71, 71 (1973) Wrenn v. State��

THOMAS WILLIAM WRENN, Appellant, v.


No. 6788

February 22, 1973 506 P.2d 418

Appeal from a judgment entered upon a jury verdict of second degree murder; Eighth

Judicial District Court, Clark County; Clarence Sundean, Judge.

The Supreme Court, Thompson, C. J., held that where testimony of expert witnesses

tending to corroborate defendant's testimony that rifle accidentally discharged and shot victim

who was in moving automobile was based on several assumed facts which were not

established to have been the actual facts of the homicide, trial judge properly excluded the

expert testimony.

Affirmed.

Douglas J. Shoemaker, of Las Vegas, for Appellant.

Robert List, Attorney General, Herbert F. Ahlswede, Chief Deputy Attorney General,

Robert A. Groves, Deputy Attorney General, and Roy A. Woofter, District Attorney, Clark


1. Criminal Law. Conditions of out-of-court experiment should be substantially similar to those prevailing at time of

incident in issue before opinion testimony based thereon is admissible; however, an exact duplication of the

conditions is not required. NRS 50.275, 50.285, 50.295, 50.305.

2. Criminal Law. Whether substantial similarity exists between conditions of out-of-court experiment and incident in issue

normally is a discretionary decision for the trial judge to make. NRS 50.275, 50.285, 50.295, 50.305.

3. Criminal Law. Opinion testimony should not be received if shown to rest upon assumptions rather than facts.

4. Criminal Law. Expert opinion may not be the result of guesswork or conjecture.

5. Criminal Law. Where testimony of expert witnesses tending to corroborate defendant's testimony that rifle accidentally

discharged and shot victim who was in moving automobile was based on several assumed facts which were

not established to have been the actual �� #��#��

��89 Nev. 71, 72 (1973) Wrenn v. State��

facts of the homicide, trial judge properly excluded the expert testimony. NRS 50.275, 50.285,

50.295, 50.305.

OPINION


This appeal concerns discretionary rulings regarding expert opinion testimony offered by

the defendant-appellant Wrenn and rejected by the trial court. It is Wrenn's contention that the

proffered opinion testimony was vital to his defense and that its rejection was prejudicial

error. He does not otherwise challenge the verdict, and it is clear to us that the verdict rests

upon substantial evidence.

Thomas Wrenn was prosecuted for the murder of Hubert Arthur Smith. He and Smith

were not acquainted. They apparently had become angry with each other while each was

driving his car in the same direction along certain streets in Las Vegas. Their anger was

expressed by obscene gestures, profane language, and efforts to impede each other's vehicular

travel. They finally stopped in front of the home of Mr. and Mrs. G. C. Baugus. Randy

Baugus was a passenger in Thomas Wrenn's car. They were close friends. Randy was on

medical leave from the Marine Corps. His legs had been amputated below the knees as a

consequence of stepping in a booby trap during military service in Viet Nam.

Hubert Smith got out of his car and advanced menacingly towards Wrenn and Baugus.

Wrenn exited from his car, entered the Baugus home, obtained a high-powered Remington

magnum rifle, filled it with ammunition and, upon leaving the house, fired two shots in the

air. Hubert Smith promptly returned to his Volkswagen and started to drive away. A third

shot was fired which passed through the left rear window of the moving Volkswagen and into

the left mid-back of Smith, causing a massive hemorrhage and immediate death. Meanwhile,

Randy Baugus had removed himself from the Wrenn car and was sitting on the ground

nearby.

According to Wrenn, the third shot was accidentally discharged while he was bending over

to lift Randy from the ground. He stated: “and I bent over to pick him up, Randy grabbed the

gun, it discharged accidentally.” His version of the incident was contradicted by an

eyewitness who testified that the rifle was on Wrenn's shoulder when he fired the third shot.

Almost two years after the homicide, two engineers made ��1��1��

��89 Nev. 71, 73 (1973) Wrenn v. State��

out-of-court engineering calculations at the scene. The purpose was to determine the

elevation of the rifle when the fatal bullet was discharged. One of them was allowed to testify

and his testimony was later stricken. The other was precluded from expressing his opinion,

and defense counsel then made an offer of proof. The stricken testimony and the offer of

proof are almost identical and place the elevation of the rifle at waist level. This opinion

evidence would tend to corroborate the testimony given by the defendant.

[Headnotes 1-4]

The conditions of the out-of-court experiment should be substantially similar to those

prevailing at the time of the incident in issue before opinion testimony based thereon is

admissible. Jorgensen v. People, 482 P.2d 962 (Colo. 1971). Of course, an exact duplication

of the conditions is not required. L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 224, 123

P.2d 224 (1942). Whether substantial similarity exists normally is a discretionary decision for

the trial judge to make. Levine v. Remolif, 80 Nev. 168, 172, 390 P.2d 718 (1964).

Correlatively, such opinion testimony should not be received if shown to rest upon

assumptions rather than facts. Levine v. Remolif, supra; Choat v. McDorman, 86 Nev. 332,

335, 468 P.2d 354 (1970). And, such expert opinion may not be the result of guesswork or

conjecture. Beasley v. State, 81 Nev. 431, 436, 404 P.2d 911 (1965).

[Headnote 5]

In the instant matter, all concede that the validity of the engineering calculations of the

expert witnesses rested upon several assumed facts which were not established to have been

the actual facts of the homicide. l Moreover, the experts admitted that a slight difference in

the data used by them would materially affect their conclusions as to the level at which the

rifle was discharged. Since the probative value of their engineering calculations and resulting

conclusions necessarily depended upon the accuracy of the facts they had assumed to be true,

the trial judge properly precluded their ��

____________________

1

The calculations of the experts assumed: (a) that the Volkswagen which Hubert Smith was driving when

shot was stationary when, in fact, it was moving (b) the position of the Volkswagen in the street when its left rear

window was pierced by the bullet, when that position was not definitely established (c) the posture of Smith in

the car while driving it, when that posture was not known (d) the location of the defendant when the rifle was

discharged, when that location was not fixed with certainty (e) the grading of the street and (f) several other

assumptions.

��89 Nev. 71, 74 (1973) Wrenn v. State��

opinion testimony. Levine v. Remolif, supra; Choat v. McDorman, supra; Beasley v. State,

supra. The evidence code, and particularly NRS 50.275; 50.285; 50.295 and 50.305, does not

suggest that the trial judge should have ruled otherwise. 2

Affirmed.

Mowbray, Gunderson, Batjer, and Zenoff JJ., concur.

____________________

2

NRS 50.275: If scientific, technical or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill,

experience, training or education may testify to matters within the scope of such knowledge.

NRS 50.285: 1. The facts or data in the particular case upon which an expert bases an opinion or inference

may be those perceived by or made known to him at or before the hearing.

2. If of a type reasonably relied upon by experts in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence.

NRS 50.295: Testimony in the form of an opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact.

NRS 50.305: The expert may testify in terms of opinion or inference and give his reasons therefor without

prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event

be required to disclose the underlying facts or data on cross-examination.

____________

��89 Nev. 74, 74 (1973) Jones v. Barnhart��

DAVID P. JONES and DONNA JONES, Husband and Wife,

Appellants, v. LILLIAN AVERY BARNHART, Respondent.

No. 6716

February 22, 1973 506 P.2d 430

Appeal from an order dismissing appellants' complaint without leave to amend; First

Judicial District Court, Carson City; Frank Gregory, Judge.

Tenants filed complaint against landlord seeking specific performance of alleged oral

agreement to sell tenants' house and lot occupied by them and, alternatively, seeking

reimbursement for improvements made by tenants. The district court dismissed the

complaint, and tenants appealed. The Supreme Court, Gunderson, J., held that allegations in

complaint that tenants, in reliance on oral two-year agreement, took possession of property,

paid rent and made improvements with landlord's �� )��


knowledge precluded conclusion that statute of frauds barred enforcement of alleged oral

agreement and gave adequate notice of claim based on unjust enrichment.


Peter I. Breen, of Reno, for Appellants.

Kermitt L. Waters, of Las Vegas, for Respondent.

1. Specific Performance. Allegations in complaint by tenants, who sought specific performance by landlord of alleged oral

agreement to sell property occupied by tenants and who, alternatively, sought reimbursement for

improvements made by tenants, that tenants, in reliance on oral two-year agreement, took possession of

property, paid rent and made improvements with landlord's knowledge precluded conclusion that statute of

frauds barred enforcement of alleged oral agreement and gave adequate notice of claim based on unjust

enrichment. NRS 111.210, subd. 1; NRCP 8(c), (d).

2. Frauds, Statute of. If landlord pleads statute of frauds as a defense in tenants' action for specific performance of alleged oral

agreement to sell tenants the rented property and if tenants undertake to prove estoppel or part performance

in avoidance of that defense, then estoppel or part performance must be proved by some extraordinary

measure or quantum of evidence. NRS 111.210, subd. 1; NRCP 8(c),(d).

OPINION


On respondent-landlord's motion, the district court dismissed appellant-tenants' Complaint,

which sought specific performance of an alleged oral agreement to sell appellants a certain

house and lot occupied by them, and which alternatively sought reimbursement for

improvements appellants allegedly had made in reliance on that agreement. This appeal

follows.

NRS 111.210(1) 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.” Under NRCP 8(c), the statute of frauds

is a “matter constituting an avoidance or affirmative defense,” which a defendant must “set

forth affirmatively.” Under NRCP 8(d), the averments of such a defense are “taken as denied

or avoided.” However, the district court �� +�� $%��&�/>�?�� $��1<��


apparently believed appellants' Complaint itself conclusively established the applicability of

NRS 111.210(1), and thus concluded it was proper to dismiss the Complaint, without leave to

amend. Cf. Nevada-Douglas Co. v. Berryhill, 58 Nev. 261, 75 P.2d 992 (1938). We do not

agree.

[Headnote 1]

The Complaint alleges that, relying on an oral 2-year lease with option to purchase for

$25,900, appellants took possession of the subject property and paid $175 per month rent, and

that with respondent's knowledge they installed a fence and lawn worth $400, and carpet,

linoleum and paneling worth $3,829.35. In our view, these allegations preclude any

conclusion that NRS 111.210 (1) necessarily bars enforcement of the alleged oral agreement,

and also give adequate notice of a claim based on unjust enrichment. Hence, we reverse and

remand for further proceedings.

[Headnote 2]

If respondent pleads NRS 111.210(1) as a defense against specific performance, and if

appellants undertake to prove estoppel or part performance in avoidance of that defense, then

“[e]stoppel or part performance must be proved by some extraordinary measure or quantum

of evidence.” Zunino v. Paramore, 83 Nev. 506, 509, 435 P.2d 196, 197 (1967). Moreover,

the terms of the parties' contract must be “clearly and definitely established.” Evans v. Lee, 12

Nev. 393, 399 (1877). See also: 2 A. Corbin, Corbin on Contracts, § 420 et seq. (1963).

However, at this juncture, we cannot determine whether appellants' evidence, not yet

adduced, will either require or justify a decree of specific performance. Nor can we determine

whether the evidence will warrant instead a judgment based on unjust enrichment.

Thompson, C. J., and Mowbray, Batjer, and Zenoff, JJ., concur.

____________

��89 Nev. 77, 77 (1973) Sherman v. State��

DOUGLAS H. SHERMAN, Appellant, v. THE

STATE OF NEVADA, Respondent.

No. 6858

February 22, 1973 506 P.2d 417

Appeal from judgment of conviction and sentence for sale and possession of narcotic and

dangerous drugs, Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.

The Supreme Court held that where the record contained no evidence of entrapment,

exclusion of testimony to establish defendant's good reputation, urged as relevant to

entrapment, was not prejudicial to substantial rights.

Affirmed.

H. Dale Murphy, Washoe County Public Defender, Michael Specchio, Deputy Public

Defender, and William O'Mara, Washoe County, for Appellant.

Robert E. List, Attorney General, of Carson City, Robert E. Rose, District Attorney, and

Kathleen M. Wall, Assistant Chief Deputy, Washoe County, for Respondent.

1. Drugs and Narcotics. Uniform Narcotic Drug Act was not unconstitutional insofar as classifying marijuana as narcotic drug and

punishing its sale, possession or use accordingly. NRS 453.011, 453.020, subd. 2.

2. Criminal Law. Entrapment is affirmative defense.

3. Criminal Law. Where record contained no evidence of entrapment, exclusion of testimony to establish defendant's good

reputation, urged as relevant to entrapment, was not prejudicial to substantial rights. NRS 47.040,

178.598.

4. Criminal Law. Assignments of error raised for first time on appeal would not be considered.

OPINION

Per Curiam:

[Headnote 1]

Convicted of violating the Uniform Narcotic Drug Act, appellant contends that statute

was unconstitutional insofar as it classified marijuana a narcotic drug and punished its sale,��

��89 Nev. 77, 78 (1973) Sherman v. State��

possession or use accordingly. See: NRS 453.020(2), since supplanted by the Uniform

Controlled Substances Act, NRS 453.011 et seq. We rejected this contention in Egan v.

Sheriff, 88 Nev. 611, 503 P.2d 16 (1972).

[Headnotes 2, 3]

Appellant further contends the trial court erred in excluding testimony to establish his

good reputation, which he urges was relevant to a defense of entrapment. If error, the

exclusion of such testimony does not justify reversal, because in this case it could not have

prejudiced substantial rights. NRS 47.040; NRS 178.598. Entrapment is an affirmative

defense, Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961), of which the record contains no

evidence, and which the jury would not have been justified in finding merely from the

proffered testimony that defendant enjoyed a good reputation.

[Headnote 4]

We decline to consider other assignments of error, raised for the first time on appeal.

Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401 (1970); Gebert v. State, 85 Nev. 331, 454

P.2d 897 (1969); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967).

Affirmed.

____________

��89 Nev. 78, 78 (1973) Sheriff v. Hicks��

SHERIFF, CLARK COUNTY, NEVADA, Appellant and Cross-Respondent, v. JOHN

WILLIAM HICKS and JOHN BRANCH, Respondents and Cross-Appellants.

No. 7074

February 22, 1973 506 P.2d 766

Appeal from order dismissing two counts of an indictment, murder and attempted murder,

pursuant to a writ of habeas corpus. Cross-appeal from denial of writ as to counts of burglary

and conspiracy to commit burglary. Order rendered by Eighth Judicial District Court, Clark


Defendants filed habeas petition challenging sufficiency of evidence presented to grand

jury. The district court dismissed murder and attempted murder counts and sustained burglary

and conspiracy to commit burglary counts, and State appealed and defendants cross-appealed.

The Supreme Court, Mowbray, 8��


J., held that where burglary and conspiracy to commit burglary counts charged that

defendants entered building with intent to commit felony of attempted murder, but attempted

murder count was struck down because of insufficient evidence to show probable cause that

defendants had attempted to murder victim, burglary and conspiracy to commit burglary

counts were fatally defective and had to be dismissed.

Affirmed as to order dismissing charges of murder and attempted murder;

remanded with instructions to dismiss charges of burglary and conspiracy to commit

burglary, without prejudice to a new and sufficient accusation.


Charles L. Garner, Chief Deputy District Attorney, Clark County, for Appellant and

Cross-Respondent.

Harry E. Claiborne, of Las Vegas, for Respondents and Cross-Appellants.

1. Homicide. Defendants could not be convicted, under felony-murder rule, of murder of cofelon who was killed by

victim in resisting commission of burglary. NRS 172.155, 200.120.

2. Indictment and Information. Evidence presented to grand jury was insufficient to establish necessary probable cause required to hold

defendants to answer charge of attempted murder. NRS 172.155.

3. Burglary. One of the essential elements of burglary is the entry of a building with the intent to commit grand or petit

larceny, or any felony. NRS 205.060, subd. 1.

4. Indictment and Information. Where burglary and conspiracy to commit burglary counts charged that defendants entered building with

intent to commit felony of attempted murder, but attempted murder count was struck down because of

insufficient evidence to show probable cause that defendants had attempted to murder victim, burglary and

conspiracy to commit burglary counts were fatally defective and had to be dismissed. NRS 172.155,

205.060, subd. 1.

OPINION


The grand jury in Clark County indicted Respondents John 3 �� 8��A�� B�;��&��@�� !


William Hicks and John Branch in four counts for the following crimes: Murder, 1 attempted

murder, 2 burglary, 3 and conspiracy to commit burglary. 4

Hicks and Branch filed a habeas petition in the district court challenging the sufficiency of

the evidence presented to the grand jury, upon which the counts in the indictment were

predicated. NRS 172.155. 5

The district judge, after a hearing on the habeas petition, found that there was a lack of

probable cause to sustain the murder and attempt murder counts, and the court dismissed��

____________________

1

“COUNT I—Murder

“did then and there wilfully, unlawfully and feloniously kill and murder ROBERT LEE MURPHY, a human

being, said killing being committed while the said ROBERT LEE MURPHY, deceased, and Defendants JOHN

WILLIAM HICKS and JOHN BRANCH were jointly engaged in the perpetration or attempt to perpetrate

burglary of that certain building located at 3595 Haverford Street, Las Vegas, Clark County, Nevada, occupied

by MELVYN A. MYERS, the said ROBERT LEE MURPHY being shot and killed during the commission or

attempted commission of said burglary.”

2

“COUNT II—Attempted Murder

“did wilfully, unlawfully, feloniously, and with malice aforethought, attempt to kill and murder MELVYN A.

MYERS, a human being, said attempted murder being committed by Defendants, together with ROBERT LEE

MURPHY, deceased, entering that certain building located at 3595 Haverford Street, Las Vegas, Clark County,

Nevada, then and there occupied by MELVYN A. MYERS, with the intent to commit a felony, to-wit, murder of

the said MELVYN A. MYERS.”

3 “

COUNT III—Burglary

“did wilfully, unlawfully, and feloniously, enter, with the intent to commit a felony, to-wit, murder of

MELVIN A. MYERS, that certain building located at 3595 Haverford Street, Las Vegas, Clark County, Nevada,

then and there occupied by the said MELVYN A. MYERS.”

4

“COUNT IV—Conspiracy to Commit Burglary

“did then and there meet with ROBERT LEE MURPHY, deceased, and between themselves, and each of them

with the other, wilfully and unlawfully conspire to commit the crime of Burglary of that certain building located

at 3595 Haverford Street, Las Vegas, Clark County, Nevada, occupied by MELVYN A. MYERS, with the intent

to commit a felony, to-wit, murder of MELVYN A. MYERS.”

5

NRS 172.155:

“1. The grand jury ought to find an indictment when all the evidence before them, taken together, establishes

probable cause to believe that an offense has been committed and that the defendant has committed it.

“2. The defendant may object to the sufficiency of the evidence to sustain the indictment only by application

for a writ of habeas corpus. If no such application is made before the plea is entered, unless the court permits it

to be made within a reasonable time thereafter, the objection is waived.”


those counts. The court did find, however, that the proceedings before the grand jury

established sufficient evidence to support the counts of burglary and conspiracy to commit

burglary.

The State has appealed from the district court's order dismissing the counts of murder and

attempted murder, while the respondents have cross-appealed from the court's order

sustaining the counts of burglary and conspiracy to commit burglary.

1. The Facts.

On May 30, 1972, at 5 o'clock in the morning, Respondents Hicks and Branch, in the

company of Robert Murphy, who is now deceased, drove in Hicks's car to within a block or

so of the residence of one Melvyn Myers in Las Vegas, Nevada. Hicks and Murphy left the

car, walked over to the residence, and rang the front door bell. Myers awoke, took a pistol

from a nightstand drawer near his bed, and went downstairs to answer the door. Looking

through the curtain on the door, he saw and recognized Hicks standing outside. Holding his

gun down at his side, Myers started to open the door when Murphy, whom he had not seen at

the door, lunged from the side and forced his entrance into the residence. Pulling a pistol

from inside his shirt, Murphy struck Myers on the head, knocking him to the floor. With

Murphy standing over him, gun in hand, Myers fired several shots from his own weapon; four

shots struck Murphy—two of them with lethal effect. Hicks, meanwhile, seeing the gun in

Myers's hand, ran back to the car. During all of this time, Branch remained in Hicks's vehicle

parked near the front of Myers's residence. After Hicks returned to the vehicle, he and Branch

remained in the parked car waiting for Murphy to join them, until they saw a police patrol car

draw up at the Myers residence, at which time they exited the scene, in the car.

[Headnote 1]

2. The Murder and Attempted Murder Counts.

The State, in attempting to hold Hicks and Branch for the murder of their accomplice

Murphy, has relied on the felony-murder rule, i.e., where a person is killed during the

commission of a felony, a cohort involved in the commission of that principal crime may also

be charged with murder. In support of its position, the State has relied heavily on Taylor v.

Superior Court, 477 P.2d 131 (Cal. 1970). However, as the California Court stated in Taylor,

the felony-murder rule does not apply when the killing is done by the victim of the ��


crime, because in such a case the malice aforethought necessary for murder is not attributable

to the accomplice felon. The killing in such an instance is done, not in the perpetration of, or

an attempt to perpetrate, a crime, but rather in an attempt to thwart the felony. NRS 200.120. 6

The application of the felony-murder rule to a situation involving felons charged with the

murder of a cofelon killed by another in resisting the commission of a felony has been widely

rejected. The leading case is Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958), which has

been followed in many jurisdictions. State v. Garner, 115 So.2d 855 (La. 1959); People v.

Wood, 167 N.E.2d 736 (N.Y. 1960); People v. Austin, 120 N.W.2d 766 (Mich. 1963);

Commonwealth v. Balliro, 209 N.E.2d 308 (Mass. 1965); People v. Morris, 274 N.E.2d 898

(Ill. App. 1971).

It is true that in Taylor the California court, upon a rather new and unique theory of

vicarious liability based upon negligence concepts of proximate cause, natural consequences,

and implied malice, did hold a cofelon to answer for the murder of his accomplice, who was

shot and killed by the victims of the robbery. However, we are not persuaded by the Taylor

reasoning, and we reject it. 7 We therefore sustain the ruling of the district court in dismissing

the count of murder.

[Headnote 2]

The district judge, after reviewing the transcript of the proceedings before the grand jury,

found that there was insufficient evidence in the record to show probable cause that Hicks

and Branch had attempted to murder Myers, and the court also dismissed that count of the

indictment. 8 We, too, have reviewed �� ) ��;��

____________________

6

NRS 200.120:

“Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation,

property or person, against one who manifestly intends, or endeavors, by violence or surprise, to commit a

felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous or tumultuous

manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any

person dwelling or being therein.”

7

As the district judge stated in his written decision in rejecting Taylor, “A rose, the felon murder rule, is still

a rose by any other name, vicarious liability.”

8

The district judge, in his written decision, ruled, in part:

“As measured by the standard of probable cause, the transcript of the proceedings before the grand jury

establishes sufficient evidence to support the charges of burglary and conspiracy to commit burglary. [See

Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969).] However, again measured by probable cause, the

transcript fails to support


that record and fail to find sufficient evidence therein to establish the necessary probable

cause required to hold the respondents to answer the charge of attempted murder of Myers.

We therefore sustain the ruling of the lower court in dismissing Count II of the indictment.

[Headnotes 3, 4]

3. The Burglary and Conspiracy to Commit Burglary Counts.

One of the essential elements of burglary is the entry of a building with the “intent to

commit grand or petit larceny, or any felony.” (Emphasis added.) NRS 205.060, subsection 1.9 In the burglary and conspiracy to commit burglary counts, the State has predicated the

necessary intent to commit “any felony” on the charge of attempted murder of Myers. Since

the lower court properly struck down the attempted murder count, the counts of burglary and

conspiracy to commit burglary as they are presently drafted are fatally defective, and they,

too, must fall. Cf. Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).

It is ordered that the district court's ruling dismissing Counts I and II of the indictment be

sustained. It is further ordered that the case be remanded to the district court with instructions

to dismiss Counts III and IV without prejudice to a new and sufficient accusation.


____________________

the charge of attempted murder. That the defendants and their deceased cohort intended to commit an assault

and battery upon Myers may be inferred from the evidence in that the cohort forced his way into the Myers

home, stated words to the effect that ‘this will keep your mouth shut,' and struck Myers with the barrel of a

pistol[;] such evidence does not establish an intent to commit murder.”

9


“1. Every person who, either by day or night, enters any house, room, apartment, tenement, shop,

warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or

housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.”

____________

��89 Nev. 84, 84 (1973) Clancy v. Clancy��

THOMAS F. CLANCY, Appellant, v. GERALDINE

CLANCY, Respondent.

No. 7031

March 1, 1973 506 P.2d 417

Appeal from decree of divorce; Eighth Judicial District Court, Clark County; Carl J.

Christensen, Judge.

Affirmed.

George E. Graziadei and Don Aimar, of Las Vegas, for Appellant.

Charles L. Garner, of Las Vegas, for Respondent.

OPINION

Per Curiam:

This is an appeal from that portion of a decree of divorce which divided the community

property between the parties. We have reviewed the record presented and are unable to

discern any abuse of discretion by the trial judge in dividing the community property as he

did. Herzog v. Herzog, 69 Nev. 286, 249 P.2d 533 (1952).

Affirmed.

____________

��89 Nev. 84, 84 (1973) Sparks v. State��

LOUIS ELMO SPARKS, Appellant, v. THE STATE

OF NEVADA, Respondent.

No. 6903

March 7, 1973 506 P.2d 1260

Appeal from judgment of Eighth Judicial District Court, Clark County; William P.

Compton, Judge.

Defendant was convicted in the district court of the unlawful sale of marijuana, and he

appealed. The Supreme Court held that where there was no evidence to suggest any

possibility of substitution of or of tampering with marijuana that was subject of alleged illegal

sale, marijuana was admissible, despite claim that its chain of custody was not properly

established.

Affirmed.


Morgan D. Harris, Public Defender, and Stewart L. Bell, Deputy Public Defender, Clark




1. Drugs and Narcotics.

Evidence was sufficient to sustain conviction for unlawful sale of marijuana. NRS 453.030.

2. Criminal Law. Where there was no evidence to suggest any possibility of substitution of or of tampering with marijuana

that was subject of alleged illegal sale, marijuana was admissible, despite claim that its chain of custody

was not properly established. NRS 453.030.

3. Criminal Law. Supreme Court would not consider assignments of error raised for first time on appeal from conviction

for unlawful sale of marijuana. NRS 453.030.

OPINION

Per Curiam:

[Headnote 1]

Louis Elmo Sparks was tried to a jury and convicted of the unlawful sale of marijuana

(NRS 453.030), and he was sentenced to serve 10 years in the Nevada State Prison (NRS

453.210). Sparks seeks a reversal of his judgment and sentence, asserting numerous

assignments of error. He contends that there is insufficient evidence in the record to support

the jury's verdict of guilty. A review of the evidence presented to the jury reveals quite the

contrary. We find ample evidence in the record to support the verdict, and it may not be

disturbed on appeal. Harris v. State, 88 Nev. 385, 498 P.2d 373 (1972).

[Headnote 2]

Additionally, Sparks claims that the marijuana that was the subject of the sale was

unlawfully received in evidence because its chain of custody was not properly established.

We have reviewed that chain as evidenced in the record, and we find it adequate. There is no

evidence to suggest any possibility of substitution of or tampering with the marijuana. It was

properly received in evidence. Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).


[Headnote 3]

The remaining assignments of error are raised for the first time on appeal. We therefore

decline to consider them. Sherman v. State, 89 Nev. 77, 506 P.2d 417 (1973).

Affirmed.

____________

��89 Nev. 86, 86 (1973) Bayman & Jones v. Sheriff��

EDDIE LEE BAYMAN and BENJAMIN DAVIS JONES, Jr.,

Appellants, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent.

No. 6998

March 7, 1973 506 P.2d 1259

Appeal from an order denying pre-trial writ of habeas corpus, Second Judicial District

Court, Washoe County; John W. Barrett, Judge.

The Supreme Court held that evidence submitted to grand jury was sufficient to establish

probable cause to charge accused with murder, robbery and burglary.

Affirmed.


Keith L. Lee, for Appellant Bayman; H. Dale Murphy, Public Defender, and Michael R.

Specchio, Deputy Public Defender, Washoe County, for Appellant Jones.

Robert List, Attorney General, Carson City, Robert E. Rose, District Attorney, and

Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.


Evidence submitted to grand jury was sufficient to establish probable cause to charge accused with

murder, robbery and burglary. NRS 171.206, 200.010, 200.030, 200.380, 205.060.

OPINION

Per Curiam:

In a three count indictment returned by the Washoe County Grand Jury, appellants were

charged with murder (NRS 200.010, 200.030) robbery (NRS 200.380) and burglary >$%�&/(�/"/?�

��89 Nev. 86, 87 (1973) Bayman & Jones v. Sheriff��

(NRS 205.060). This appeal is from a denial of pre-trial habeas relief in the district court and

their sole contention is that the evidence submitted to the grand jury was insufficient to

establish probable cause to charge them with any of the offenses.

Contrary to their contention, we believe the district court correctly determined that the

evidence presented to the grand jury established probable cause to believe the charged

offenses had been committed and that appellants had committed them. NRS 171.206. State v.

von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). Protracted discussion of the record would

serve no useful purpose. Review thereof reveals that the evidence submitted to the grand jury

is also within our holding in Robertson v. Sheriff, 85 Nev. 681, 683, 462 P.2d 528, 529

(1969), in which we said “that presence, companionship, and conduct before and after the

offense are circumstances from which one's participation in the criminal intent may be

inferred.”

Affirmed.

____________

��89 Nev. 87, 87 (1973) Baker v. State��

CLARENCE BAKER, Appellant, v. THE STATE


No. 6879

March 8, 1973 506 P.2d 1261

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Joseph S.

Pavlikowski, Judge.

Defendant was convicted in the district court for selling narcotics and he appealed. The

Supreme Court held that witness' spontaneous reference to defendant as “addict” was not so

inherently prejudicial that trial judge was required to preclude statement sua sponte nor grant

mistrial sua sponte.

Affirmed.

Morgan D. Harris, Public Defender, and Michael A. Cherry, Deputy Public Defender,

Clark County, for Appellant.

Robert List, Attorney General; Roy A. Woofter, District Attorney; Charles L. Garner,

Chief Deputy District Attorney; Addeliar D. Guy, Deputy District Attorney, Clark County, for

Respondent.

��89 Nev. 87, 88 (1973) Baker v. State��

Criminal Law.

Witness' spontaneous reference to defendant in prosecution for sale of narcotics as “addict” was not

so inherently prejudicial that trial judge was required to preclude statement sua sponte nor grant mistrial

sua sponte.

OPINION

Per Curiam:

Appellant appeals from his conviction for the sale of narcotics in violation of NRS

453.030 and NRS 453.210(2), and the refusal of the trial judge to grant him probation.

1. During the course of cross examination one of the state's witnesses spontaneously

referred to the appellant as an “addict.” Counsel for the appellant approached the bench, the

jury was excused and an unreported conference was held between the attorneys and the

district judge. After that conference, upon an inquiry from the prosecutor, the district judge

recited for the record that counsel for the appellant was not moving for a mistrial but only that

the jury be admonished to disregard the remark of the witness. 1 The appellant does not

complain in any particular about the scope of the admonition. 2 Counsel for the appellant

admits that he did not move for a mistrial. The reference to the appellant was not so

inherently prejudicial that the trial judge was compelled to preclude the statement sua sponte,

nor to grant a mistrial sua sponte. See: Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969);

Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).

2. Appellant's counsel also concedes that the district judge imposed a legal sentence upon

the appellant and he admits that no error was committed.

Affirmed.

____________________

1

The recitation of the court in pertinent part reads as follows:

“THE COURT: He is not moving for a mistrial at this time. He is just moving that the jury be admonished to

disregard Mr. Litton's statement relating to when an addict is gone with all my money. . . .”

2

From the record it appears that the witness was admonished against any further reference to the appellant as

an addict but it does not appear that the jury was admonished to disregard the remark of the witness.

____________

��89 Nev. 89, 89 (1973) Hardison v. Union Pacific RR Co.��

VASCOLA HARDISON, Special Administratrix of the Estate of OTTO HARDISON, Sr.,

Deceased, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation,

Respondent.

No. 6725

March 8, 1973 506 P.2d 1259

Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.

Mendoza, Judge.

Affirmed.

Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Appellant.

Guild, Hagen & Clark, of Las Vegas, for Respondent.

OPINION

Per Curiam:

In this appeal from a judgment totally denying appellant any recovery in an action under

the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), the issue is whether appellant

was entitled to some recovery as a matter of law. Viewing the evidence in the light most

favorable to respondent, we cannot say the trial court erred.

Affirmed.

____________

��89 Nev. 89, 89 (1973) Hooker v. Sheriff��

WILLIE CLIFTON HOOKER, Appellant, v. SHERIFF,


No. 6987

March 8, 1973 506 P.2d 1262

Appeal from an order denying pre-trial petition for a writ of habeas corpus, Eighth Judicial

District Court, Clark County; Howard W. Babcock, Judge.

Defendant, charged with murder of his wife, sought pre-trial habeas corpus relief. The

district court denied relief, and defendant appealed. The Supreme Court, Batjer, J., held that

evidence before magistrate, who had no evidence independent of defendant's spontaneous

declaration that “I think I shot my wife” to indicate that the criminal agency of another was

responsible for death of defendant's wife from gunshot wound which was not shown to have

been inflicted from revolver found on hassock near door of bathroom where victim was��


found, was insufficient to establish probable cause of the corpus delicti of murder.

Reversed and remanded, with directions.

Heaton & Spizzirri, Las Vegas, for Appellant.

Robert List, Attorney General, Carson City, Roy A. Woofter, District Attorney, and


1. Homicide. Fact of the death, and the criminal agency of another responsible for that death must be shown to

establish corpus delicti of murder. NRS 200.010.

2. Criminal Law. If a criminal complaint is filed charging a person with the death of another and a preliminary hearing is

held, it must be proved by sufficient legal evidence that there is probable cause to believe that a crime has

been committed and that there is probable cause to believe that person charged committed it. NRS

171.206.

3. Criminal Law. There must be sufficient evidence to establish the corpus delicti independent of confessions and

admissions.

4. Criminal Law. Once corpus delicti of murder is determined to have been proved by sufficient evidence, confessions and

admissions may be considered in establishing probable cause to show that it was the particular defendant

charged who was the criminal agency causing the death.

5. Criminal Law. Proof of corpus delicti can be established by direct evidence, partially by direct and partially by

circumstantial evidence or totally by circumstantial evidence.

6. Criminal Law. Evidence before magistrate, who had no evidence independent of defendant's spontaneous declaration

that “I think I shot my wife” to indicate that the criminal agency of another was responsible for death of

defendant's wife from gunshot wound which was not shown to have been inflicted from revolver found on

hassock near door of bathroom where victim was found, was insufficient to establish probable cause of the

corpus delicti of murder. NRS 171.206, 200.010.

OPINION


Ordered to stand trial for the murder (NRS 200.010) of his wife, appellant sought pre-trial

habeas relief in the district ��


court. Appealing from an order denying that relief, his sole contention is that the evidence

introduced before the magistrate was insufficient to establish probable cause. We agree.

The transcript of the preliminary examination discloses: (1) the accused was present in the

home at the time the gunshot wound was inflicted. It does not indicate whether anyone else

was present. (2) That there was a partially loaded .32 calibre revolver, with one spent

cartridge, on a hassock near the bathroom door. It does not indicate whether the hassock was

inside or outside the bathroom. (3) That the body of the victim was “slouched” against the tub

and a wall in the bathroom. It does not indicate where the body was located in relation to the

bathroom door or the hassock, where the revolver was found. (4) That a woman's purse,

hairpiece or wig and a pair of shoes were scattered on the living room floor. It does not

indicate the ownership of these items. (5) That when a police officer arrived at the residence

the accused met him at the entrance and said “hurry, I think I shot my wife.” It was stipulated

that the cause of death was a gunshot wound. Without more, the magistrate and the district

judge erroneously concluded that there was probable cause to believe that an offense had been

committed and that there was probable cause to believe the accused to have committed it.

There is no evidence in this record to show that the victim was killed by a bullet from the

revolver found on the hassock. The record is silent on the calibre of the bullet the pathologist

removed from the body of the victim. Ownership of the revolver was not shown. It is not

shown if there were fingerprints on the revolver, or if a ballistic test was made, or if paraffin

tests were made, or if there were powder burns on the victim. Although exhibits were before

the magistrate, some of which were admitted in evidence, none accompanied the record to

this court. Except for the spontaneous statement of the accused and statements in the briefs

we find nothing to indicate the identity of the victim.

The death of a human being may be brought about by any one of four means: (1) natural

causes; (2) accident; (3) suicide; or (4) criminal means.

[Headnote 1]

In establishing the corpus delicti of murder two elements must be established (1) the fact

of death; and (2) the criminal agency of another responsible for that death. Beasley v. Lamb,

79 Nev. 78, 80, 378 P.2d 524 (1963).


[Headnote 2]

If a criminal complaint is filed charging a person with the death of another and a

preliminary hearing is held, (1) probable cause to believe that a crime has been committed;

and (2) probable cause to believe that the person charged committed it must be proved by

sufficient legal evidence. NRS 171.206.

[Headnote 3]

Here the fact of death is conceded by both parties. However, the appellant contends that

evidence is totally lacking to establish that the death was caused by the criminal agency of

another. The State's own witness testified that the gunshot wound could have been self

inflicted. The only connection, established by the prosecutor, between the accused and the

alleged homicide is the appellant's spontaneous statement. Even if we were to assume such

statement to be incriminating, standing alone, it does not meet the test. There must be

“sufficient evidence to establish the corpus delicti independent of confessions and possible

admissions, . . .” Azbill v. State, 84 Nev. 345, 351, 440 P.2d 1014, 1018 (1968); Hicks v.

Sheriff, 86 Nev. 67, 464 P.2d 462 (1970).

[Headnote 4]

Once the corpus delicti is determined to have been proved by sufficient evidence,

confessions and admissions may be considered in establishing probable cause to show that it

was the particular defendant charged who was the criminal agency causing the death. In re

Kelly, 28 Nev. 491, 83 P. 223 (1905). Here there is no evidence independent of the

appellant's spontaneous declaration to indicate that the criminal agency of another was

responsible for the death.

[Headnotes 5, 6]

Proof of the corpus delicti could have been established by direct evidence, People v.

Watters, 259 P. 442 (Cal. 1927); partially by direct and partially by circumstantial evidence or

totally by circumstantial evidence. State v. Ah Chuey, 14 Nev. 79 (1879); State v. Loveless,

17 Nev. 424, 30 P. 1080 (1883); People v. Clark, 233 P. 980 (Cal.App. 1925); Hartman v.

State, 206 S.W.2d 380 (Tenn. 1947); People v. Scott, 1 Cal.Rptr. 600 (Cal.App. 1959). None

of these avenues were utilized by the state. The evidence before the magistrate is insufficient

to establish probable cause of the corpus delicti of murder.

Accordingly we reverse the order of the lower court, and ��


order that appellant be freed from custody unless within a reasonable time the state elects to

bring a new charge.


____________

��89 Nev. 93, 93 (1973) Gulbranson v. City of Sparks��

ROBERT A. GULBRANSON, dba THE FUN MART, Appellant, v. THE CITY OF

SPARKS, and CHARLES A. DOYER, CHIEF LICENSE OFFICER OF THE CITY OF

SPARKS, Respondents.

No. 6871

March 9, 1973 506 P.2d 1264

Appeal from portion of judgment dismissing petition for writ of mandamus which denied

petitioner money damages. Second Judicial District Court, Washoe County; James J. Guinan,

Judge.

Bookstore owner brought petition for writ of mandamus to require city to restore his

license and to pay damages. The district court entered a judgment dismissing petition and the

owner appealed. The Supreme Court, Zenoff, J., held that where city informed court of return

of license after which court, although no answer had been filed and no hearing had been held

on petition, ordered petition dismissed, found no damages proved and awarded attorney fees,

court erred in failing to conduct a hearing on damages issue.

Reversed and remanded for a hearing in accordance with this opinion.

Thompson, C. J., and Mowbray, J., dissented.

Henry R. Gordon, of Las Vegas, for Appellant.

Paul Freitag, City Attorney, of Sparks, for Respondents.

1. Mandamus. Where bookstore owner sought alternative writ of mandamus against city to compel return of license, to

cease harassing him and to pay damages and when counsel appeared before court in chambers city

informed court of return of license after which court, although no answer had been filed and no hearing had

been held on petition, ordered petition dismissed, found no damages proved and awarded attorney fees,

court erred in failing to conduct a hearing on damages issue.


2. Mandamus.

Damages are properly requested in petition for writ of mandamus. NRS 34.270.

3. Mandamus. In view of statute providing that writ should not be granted by default, a recovery in damages could not

be had by petitioner because of city's failure to respond to petition for writ of mandamus to compel return

of license and to pay damages. NRS 34.200, 34.260.

OPINION


On August 13, 1971, through co-respondent Charles A. Doyer, Chief License Officer of

the City of Sparks, the City of Sparks revoked the business license of Robert A. Gulbranson,

doing business as The Fun Mart. Gulbranson petitioned for an alternative writ of mandamus

to compel return of his license, to cease harassing and arresting petitioner and his employees,

to pay damages of $800.00 per day from August 13 until the license be restored, and to pay

$9,000.00 as attorney's fees, or in the alternative to show cause why the city should not do so.

The alternative writ that issued from the court did not conform precisely to the petition but

commanded respondents to return Gulbranson's license, to cease the harassment and the

threatening of arrest, or in the alternative to show cause why respondents did not do so and

why they should not pay damages for such refusal. Immediately upon receipt of the writ the

city returned the business license.

[Headnote 1]

Counsel for both parties appeared before the court in chambers at the time set for the

hearing on the writ at which time counsel for the city informed the court of the return of the

license. Counsel for Gulbranson complained that he had not been informed of the license

return and that his client had suffered damages. Although no answer was filed and no hearing

was held on the petition the court ordered the petition dismissed, found that no damages were

proved and awarded petitioner attorney's fees in the amount of $500.00 together with his

costs. Gulbranson appeals to assert his right to damages.

The trial court should have conducted a hearing on the damage issue. We remand to it for

that purpose. Whether the co-respondent Chief License Officer exercised due care in the

execution of the city licensing ordinances, NRS 41.032(1), or performed his duties as a

discretionary function, NRS 41.032 >&?�� 6��+��)��


(2), was not raised for our determination on this appeal and these may be determining factors

at the future hearing, but for our present purposes the main concern is the matter of

Gulbranson's request for damages. In his petition Gulbranson demanded damages to

commence from the date his license was taken from him, but the writ prescribed damages in

the event the city refused to return the license when the writ was issued, a difference of

several days.

[Headnote 2]

Damages are a proper request in a petition for a writ of mandamus. NRS 34.270 provides

that: “If judgment be given for the applicant, he shall recover the damages which he shall

have sustained as found by the jury, or as may be determined by the court. . . .” It is not clear

whether judgment was given for the petitioner. The petition was dismissed after his license

was returned, yet he was awarded costs and attorney's fees and denied damages.

The city evidently believed that return of the license made all other questions moot and

filed no answer. In Nevada, although there is no rule, vintage cases require that it is the

petition and not the writ which must be answered. Whitman v. Moran, 54 Nev. 276, 277-78,

13 P.2d 1107 (1932); Flanigan v. Burritt, 41 Nev. 504, 507-08, 511, 173 P. 352, 353-54

(1918); State of Nevada v. McCullough, 3 Nev. 202 (3-4 Nev. Repub. 181, 191) (1867).

We therefore must proceed to decide the effect of the city's failure to file an answer or

return for petitioner insists that this should be treated as a default matter and damages be

awarded as prayed in his petition.

[Headnote 3]

NRS 34.200 prevents that result. NRS 34.200 provides in part that: “The writ shall not be

granted by default.” Thus, a recovery cannot be had by the city's failure to respond. That

section further provides: “The case shall be heard by the court, whether the adverse party

appear or not.” The kind of hearing required is prescribed in NRS 34.260 which states that if

no answer is made, as here, the case shall be heard on the “papers” of the applicant.

Petitioner's attorney, together with counsel for the city, appeared before the court at the

designated time in the writ and it was then that the petitioner's counsel first learned that the

city had obeyed the writ as soon as it was issued. He protested that he should have been

informed and pressed his case further that the issues of costs, attorney's fees and damages��


were still unresolved. He stated, “it is our contention . . . that there have been damages which

could have been mitigated.” Further, “I request . . . damages should be granted for the period

of time . . . between closure . . .” And also, “. . . the damages can be considered together with

costs of suit.” The city's attorney responded to the argument. Clearly, it was brought to the

attention of the court that damages must be considered as an issue but without calling for

presentation of evidence the court ruled that the question of damages was moot. Yet, later in

formal findings the court referred to the damages as having failed for lack of proof in spite of

a clear record that petitioner was not given the opportunity to present proof. He must be

allowed that opportunity. Counsel should not be required to press his case to the point of

contempt or be barred his remedy.

Reversed and remanded for a hearing in accordance with this opinion.

Gunderson and Batjer, JJ., concur.

Thompson, C. J., with whom Mowbray, J., agrees, dissenting:

This matter should not be remanded for a hearing on the issue of damages. The court did

not preclude proof on that issue. I would affirm the judgment in all respects.

The City of Sparks revoked the general business license it previously had granted to

Robert A. Gulbranson to operate a bookstore called The Fun Mart. Believing that the City's

action violated his constitutional rights, Gulbranson filed a petition for an alternative writ of

mandamus with the district court to compel the return of his license and also requesting

damages. 1 An alternative writ was issued commanding the City to return the license, or to

show cause on a specified day why it had not done so and why it should not pay damages for

such refusal. The alternative writ, together with the order that it issue and petition therefor,

were served upon the City.

The City obeyed the command of the writ and returned the license forthwith to Mr.

Gulbranson. The City, however, did not answer under oath, NRS 34.210, apparently believing

that such action was not required since it had obeyed the writ. In this, the City was mistaken.

Our cases contemplate that an answer shall be made to the petition, and not to the alternative��

____________________

1

NRS 34.270. “If judgment be given for the applicant, he shall recover the damages which he shall have

sustained. . . .”


writ. State of Nevada v. McCullough, 3 Nev. 202 (1867); Flanigan v. Burritt, 41 Nev. 504,

173 P. 352 (1918).

It is, of course, true that the portion of the proceeding seeking the return of the business

license was mooted by the return of that license. State v. Pitre, 209 So.2d 764 (La. 1968);

State v. Brotherhood of R.R. Trainmen, 166 N.E.2d 923 (Ohio 1966); State v. Criminal Court

of Marion County, 207 N.E.2d 632 (Ind. 1965); Carrier v. Gardner, 385 S.W.2d 75 (Ky.

1964); Ex parte Burton, 157 So.2d 226 (Ala. 1963). The issue of damages, however,

remained a viable issue in the case. 2

On the day designated for the City to show cause before the court, counsel for both parties

appeared. The attorney representing the petitioner announced that he was ready to proceed.

The City Attorney suggested that the entire matter was rendered moot by the return of the

license. Other discussion was had between court and counsel for both sides. Counsel for the

petitioner did not request an opportunity to present evidence in support of his client's claim

for damages, nor did he make an offer of proof. The court found that the issue of damages

was not moot and that no damages were proved by the petitioner. 3 �4��

��

____________________

2

It appears from the record that the City revoked Gulbranson's business license on August 13, 1971, and

returned it on August 31, 1971. Gulbranson sought to recover compensation for damages incurred during that

period of time.

3

“FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

“At the time set for hearing on the alternative writ of mandamus, Henry R. Gordon, Esq., appeared for

petitioner and Paul W. Feitag [sic], Esq., appeared for respondent. Counsel for respondent informed the Court

that respondent had reinstated petitioner's business license immediately upon receipt of the alternative writ.

Therefore, the case was moot as to all questions except damages, costs and attorneys' fees, and the Court ordered

the petition dismissed. No answer was served or filed and no hearing was held on the petition. The Court

permitted the parties to submit briefs on the question whether or not attorneys' fees could or should be awarded.

The Court, having considered the briefs submitted by the parties, makes the following findings of fact:

“FINDINGS OF FACT

“The business license of petitioner was reinstated as a result of the petition for a writ of mandamus.

“Counsel for petitioner either knew or should have known that the license had been reinstated.

“No damages were proved by petitioner.

“CONCLUSIONS OF LAW

“The Court concludes as a matter of law that:

“Only such damages as are proved may be awarded in a mandamus proceeding.

. . . .”


The proceeding was dismissed. This appeal is only from that part of the judgment which

denied damages.

Although the majority opinion is correct that a hearing on damages did not occur, it is

incorrect in the observation that a opportunity for such a hearing was precluded. Counsel for

Mr. Gulbranson simply did not ask that he be allowed to offer evidence on that issue. It was

counsel's obligation to proceed with his client's cause or at least request the opportunity to do

so. Consequently, I find no justification for returning this matter to the district court.

____________

��89 Nev. 98, 98 (1973) Sala & Ruthe Realty, Inc. v. Deneen��

SALA & RUTHE REALTY, INC., a Nevada Corporation, Appellant, v. CHARLES C.

DENEEN and ROBERT W. McMACKIN, Respondents.

No. 6836

March 12, 1973 507 P.2d 140

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Thomas J.

O'Donnell, Judge.

Suit by broker to recover an alleged fee earned for producing a willing purchaser. The

district court entered a judgment in favor of the property owners and the broker appealed. The

Supreme Court, Batjer, J., held that where listing agreement was signed by one of the joint

owners of property and it expired by its terms five days before broker presented a potential

purchaser to the joint owner who had signed listing agreement and who accepted offer

individually by execution of documents on which there were lines expressly preserved for the

signature of other joint owner who refused to consent to sale, broker was not entitled to a

commission.

Affirmed.

Boyd, Leavitt & Freedman, of Las Vegas, for Appellant.

W. Owen Hitz and Robert L. Gifford, of Las Vegas, for Respondents.

1. Principal and Agent. Evidence in action to recover broker's fee was sufficient to sustain finding of trial court that one of the

owners of property who executed exclusive listing agreement with broker did not act for other joint owner

under a prior recorded, unrevoked power of attorney that other owner had executed in connection with a

prior real estate transaction.


2. Brokers. Where listing agreement was signed by only one of the joint owners of property and it expired by its

terms five days before broker presented a potential purchaser to the joint owner who had signed listing

agreement and who accepted offer individually by execution of documents on which there were lines

expressly reserved for the signature of other joint owner who refused to consent to sale, broker was not

entitled to a commission.

3. Appeal and Error. If there is substantial evidence to support lower court's position, its findings of fact are binding on

appellate court even if there is a conflict in evidence.

4. Brokers. Where prospective buyer made an offer after expiration of listing agreement by its terms, broker was not

entitled to commission until valid agreement had been signed.

OPINION


The appellant brought suit in district court to recover an alleged broker's fee. The claimed

fee was based upon appellant's allegation that it had presented a ready, willing and able buyer

whose purchase was frustrated by acts of the sellers. After a trial before the court, sitting

without a jury, judgment was entered for the respondents and against the appellant and this

appeal follows.

Respondent, Robert W. McMackin, owned 85 percent and respondent, Charles C. Deneen,

owned 15 percent of certain real property located in Clark County, Nevada. On January 9,

1969, Deneen alone executed an exclusive listing agreement with the appellant for the sale of

that property. The agreement acknowledged the joint ownership of McMackin and Deneen in

the listed property. At the trial of this case Deneen testified that he informed the appellant's

agent that McMackin's signature would be required on all relevant documents.

Some five years earlier during an abortive attempt to sell the property to one P. L.

Schneider, and before Deneen was given a quitclaim deed to evidence his 15 percent interest,

McMackin, expecting to be out of the country gave Deneen a special power of attorney to

enable him to conduct business connected with a foreclosure. Both McMackin and Deneen

testified that they had forgotten about the recorded power of attorney which had never been

revoked. There is no evidence to indicate that the appellant relied upon the power of attorney

before or at the time Deneen signed any of the documents in question.


[Headnote 1]

The district court specifically found that Deneen did not act under the power of attorney

executed on June 12, 1964 in regards to any matters arising out of this case. This finding is

supported in the record since Deneen testified that he never signed any document for

McMackin under the authority of the power of attorney. Moreover, if Deneen had executed

any of the documents here involved pursuant to that power of attorney such action would

have been invalid, because a fair and reasonable interpretation of that instrument in the light

of the testimony of both Deneen and McMackin reveals that its scope was limited to matters

arising from the previous sale of the subject real property to P. L. Schneider.

[Headnote 2]

If it was ever binding on anyone, the listing agreement form as signed by Deneen expired

on April 9, 1969, and no attempt was made to renew it or to extend it. Five days later, on

April 14, 1969, the appellant presented to Deneen an offer from a potential buyer. Deneen

signed the offer and acceptance agreement but according to his testimony he did so

individually and not as an agent for McMackin. Later he individually signed escrow

instructions and an order to pay commissions. On these documents, prepared by the appellant,

were lines expressly reserved for the signature of McMackin. He refused to sign the offer and

acceptance or other documents and as a consequence no sale was made to the prospective

buyer nor to anyone else.

[Headnote 3]

Conflicting testimony was presented at the trial, however, it is well settled that the findings

of fact are binding on the appellate court even where there is conflict, if there is substantial

evidence to support the lower court's position. Allen v. Webb, 87 Nev. 261, 485 P.2d 677

(1971); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Lanigir v. Arden, 82 Nev.

28, 409 P.2d 891 (1966). Here there was substantial evidence presented to the trial court to

support its findings. Furthermore, if there is proper evidentiary support and no legal error, the

appellate court will regard the trial court's findings as conclusive. Lawry v. Devine, 82 Nev.

65, 410 P.2d 761 (1966); Austin v. Smith, 73 Nev. 155, 311 P.2d 971 (1957); Close v.

Redelius, 67 Nev. 158, 215 P.2d 659 (1950); Wolford v. Wolford, 65 Nev. 710, 200 P.2d 988

(1948).

[Headnote 4]

A new offer was made by the buyers on April 14, 1969. Under the rule laid down in Engel

v. Wilcox, 75 Nev. 323, 340 :�&� @�>� ( ?��


P.2d 93 (1959), without a written listing agreement the appellant was not entitled to a

commission until a valid written agreement had been signed. No such valid agreement was

ever executed.

Affirmed.

Thompson, C. J., and Gunderson and Zenoff, JJ., and Waters, D. J., concur.

____________

��89 Nev. 101, 101 (1973) Vandermark v. Sheriff��

JEFFREY JAY VANDERMARK, Appellant, v. SHERIFF,


No. 7117

March 14, 1973 507 P.2d 137

Appeal from an order denying pre-trial writ of habeas corpus, Eighth Judicial District

Court, Clark County; Howard W. Babcock, Judge.

Habeas corpus proceeding brought by petitioner who was indicted for identical offense of

sale of marijuana for which a previous prosecution had been dismissed. The district court

denied habeas corpus and the petitioner appealed. The Supreme Court held that where

subpoenaed witness did not appear at preliminary examination, prosecuting attorney reached

the witness by telephone and was advised that subpoena had been forgotten and that it would

take an hour to an hour and forty-five minutes for the witness to reach the court, prosecutor's

sworn oral testimony to that effect was substantial compliance with “Hill affidavit” in support

of request for continuance and prosecutor's seeking of continuance without the affidavit did

not amount to conscious indifference to the rights of the defendant in prosecution for sale of

marijuana.

Affirmed.

J. Forest Cahlan, of Las Vegas, for Appellant.


Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.

Criminal Law.

Where subpoenaed witness did not appear at preliminary examination, prosecuting attorney reached

the witness by telephone and was advised that subpoena had been forgotten and that it ��1� �� +�� 0� �� 2� ��)�� +��


would take an hour to an hour and forty-five minutes for the witness to reach the court, prosecutor's

sworn oral testimony to that effect was substantial compliance with “Hill affidavit” in support of request

for continuance and prosecutor's seeking of continuance without the affidavit did not amount to conscious

indifference to the rights of the defendant in prosecution for sale of marijuana. NRS 453.030,

453.210.

OPINION

Per Curiam:

A criminal complaint, filed in the justice court, charged that in May 15, 1971, appellant

sold marijuana in violation of NRS 453.030 and NRS 453.210. At the time set for the

preliminary examination the sole witness to be called by the state, a police undercover agent

who had made the purchase, although having been served with subpoena on May 17, 1972,

failed to appear. The prosecuting attorney reached the undercover agent by telephone and was

advised that the subpoena had been forgotten and that it would take an hour to an hour and

forty-five minutes for the witness to reach the court.

The prosecuting attorney took the witness stand, and under oath, testified to the above and

added that the subpoena had been served nineteen days previously and that he was

“surprised” that the witness had not appeared at the designated time.

The magistrate, stating that he was tired of this “casual disregard” of legal process and

exasperated with the “cavalier response” to subpoenas, denied the prosecutor's motion to

continue the matter until the arrival of the witness and granted appellant's motion to dismiss.

Seventeen days later the police undercover agent testified before the Clark County Grand

Jury and appellant was indicted for the identical offense. He then petitioned the district court

for pre-trial habeas relief and from a denial of that relief he appeals to this court contending

the state is barred from proceeding under the indictment. In support of his contention he

argues the state's willful failure to comply with the requirements of Hill v. Sheriff, 85 Nev.

234, 452 P.2d 918 (1969) and Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970). He also

argues the prosecuting attorney exhibited the “conscious indifference to rules of procedure

affecting appellant's rights” we condemned in State v. Austin, 87 Nev. 81, 482 P.2d 284

(1971). We do not agree.

In Hill the prosecutor had not caused a subpoena to be ��


issued and served. There is nothing in this record to suggest the “willful disregard” of the

rules that existed in Maes. There is nothing in this record to show the “conscious indifference

to the rights of the defendant” that was present in Austin.

“The problem posed here is one of time. The prosecutor did not learn that the witnesses

would not be present until he appeared for the hearing. Until that moment he had every

reason to believe that the subpoena would be obeyed. The prosecutor did not have time to

prepare a ‘Hill affidavit' in support of his request for a continuance. In these circumstances

the prosecutor need only be sworn and orally testify to the same factual matters that would

be stated in affidavit form were time available to prepare one.” [Emphasis added.] Bustos v.

Sheriff, 87 Nev. 622, 624, 491 P.2d 1279, 1280-1281 (1971).

In this case the prosecutor's testimony substantially complied with the required “Hill

affidavit” and justified the district court's determination that the state had not exhibited

conscious indifference to appellant's rights.

Affirmed.

____________

��89 Nev. 103, 103 (1973) Bratton v. Sheriff��

DOUGLAS BRATTON, Appellant, v. SHERIFF,


No. 7246

March 14, 1973 506 P.2d 1264



Affirmed.

George H. Spizzirri, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City, Roy A. Woofter, District Attorney, and Donald

K. Wadsworth, Deputy District Attorney, Clark County, for Respondent.

OPINION

Per Curiam:

This appeal from the denial of pre-trial habeas relief challenges the sufficiency and validity

of the evidence on which the �� $%��!(@�@&��$%��!(@��"��

��89 Nev. 103, 104 (1973) Bratton v. Sheriff��

grand jury indicted appellant for the sale of a controlled substance in violation of NRS

453.321 and NRS 453.161. The challenge does not possess merit.

Affirmed.

____________

��89 Nev. 104, 104 (1973) Stephens v. Southern Nevada Music Co.��

ADELE STEPHENS, aka ADELE STEPHENS KADANS, Appellant,

v. SOUTHERN NEVADA MUSIC CO., INC., Respondent.

No. 6896

March 14, 1973 507 P.2d 138

Appeal from judgment of Eighth Judicial District Court, Clark County; Clarence Sundean,

Judge.

Action against store owner by person who sought to recover for injuries sustained in slip

and fall accident occurring in owner's store. The district court entered judgment, and plaintiff

appealed. The Supreme Court held that denial of motion to amend complaint by plaintiff,

who made such motion following declaration of mistrial but who did not renew the motion or

make any effort to enlarge pleadings by any means, so as to increase amount of damages and

enlarge upon purported cause of plaintiff's fall did not result in any impairment of justice.

Affirmed.

Paul H. Lamboley, of Reno, for Appellant.

Beckley, DeLanoy & Jemison, Chtd., and A. Bill Maupin, of Las Vegas, for Respondent.

1. Pleading. While rule provides that leave to amend shall be freely given when justice so requires, trial judge may in

proper case deny a motion to amend. NRCP 15(a).

2. Appeal and Error; Pleading. Motion for leave to amend is addressed to sound discretion of trial court, and its action in denying the

motion should not be held to be error unless such discretion has been abused. NRCP 15(a).

3. Appeal and Error. Denial of motion to amend complaint by plaintiff, who made such motion following declaration of

mistrial but who did not renew the motion or make any effort to enlarge pleadings by any means, so as to

increase amount of damages and enlarge upon �� +��


purported cause of plaintiff's fall that had resulted in injuries for which plaintiff sought to recover from

store owner did not result in any impairment of justice.

OPINION

Per Curiam:

Adele Stephens, now known as Adele Stephens Kadans, commenced an action against

Southern Nevada Music Co., Inc., claiming injuries from a slip and fall accident within the

respondent's store which was operated by her son-in-law. The complaint was filed June 19,

1967. From the minutes of the trial court we learn that the trial was started on February 8,

1971, approximately 3 1/2 years after the action was started.

During or after the jury selection defendant's counsel moved for a mistrial in chambers

alleging certain conduct on the part of the plaintiff and her present husband, and further, that

appellant's attorney (not the attorney who commenced the case for plaintiff but a newly

substituted attorney) had asked questions of the jurors relative to insurance which, of course,

was blatant and flagrant if not intentional error. The court declared a mistrial, whereupon

appellant's counsel immediately moved for leave to amend the complaint to increase the

amount of damages and to enlarge upon the purported cause of appellant's fall, to wit, that if

she did not slip on a cigarette butt, she fell because of an accumulation of floor wax. The

motion was denied.

[Headnotes 1, 2]

Rule 15(a) of the Nevada Rules of Civil Procedure clearly provides that leave to amend

shall be freely given when justice so requires. This does not, however, mean that a trial judge

may not, in a proper case, deny a motion to amend. If that were the intent, leave of court

would not be required. A motion for leave to amend is addressed to the sound discretion of

the trial court and its action in denying the motion should not be held to be error unless that

discretion has been abused. Leggett v. Montgomery Ward & Co., 178 F.2d 436, 439 (10th

Cir. 1949); Nelson v. Sierra Construction Corp., 77 Nev. 334, 343, 364 P.2d 402, 406 (1961).

Cf. Nevada Bank of Commerce v. Edgewater, Inc., 84 Nev. 651, 653, 446 P.2d 990, 991

(1968).

[Headnote 3]

We have held that in the absence of any apparent or declared reason—such as undue delay,

bad faith or dilatory motive on ��E��


the part of the movant—the leave sought should be freely given. Foman v. Davis, 371 U.S.

178 (1962), cited in Adamson v. Bowker, 85 Nev. 115, 121, 450 P.2d 796, 800-01 (1969). It

is true that the trial court denied the motion without declaring its reason for the denial. Still,

although trial was not held a year later, appellant did not renew the motion nor make any

effort to enlarge her pleadings by any means. We have independently reviewed the record and

find it apparent that the conduct of appellant was dilatory. A close reading of the entire record

fails to reflect any impairment of justice occasioned by the trial court's denial of appellant's

motion for leave to amend.

Affirmed.

____________

��89 Nev. 106, 106 (1973) Bearden v. City of Boulder City��

WILLIAM MARVIN BEARDEN, Appellant, v. CITY OF BOULDER CITY, State of

Nevada; HORACE E. SMITH, Jr., as Police Officer of the City of Boulder City, State of

Nevada, and Individually, ROBERT GARN, as Police Officer of the City of Boulder City,

State of Nevada, and Individually, CITY OF HENDERSON, State of Nevada; and NICK

GRANA, as Reserve Police Officer of the City of Henderson, State of Nevada, Respondents.

No. 6795

March 21, 1973 507 P.2d 1034

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Thomas J.

O'Donnell, Judge.

Action by chief accountant of city against city and police officers, seeking to recover

damages for false imprisonment following a false arrest. The district court granted motion of

defendants for dismissal, and appeal was taken. The Supreme Court, Batjer, J., held that

assuming without deciding that chief accountant of city was not required to register as an

ex-felon because his California conviction had been expunged, and that he therefore was not

committing a misdemeanor in the presence of officers by not registering, officers were

protected from civil suit for false imprisonment following a false arrest by statute providing

that no action may be brought against any peace officer unless an act or omission amounts to

gross negligence or to willful and wanton misconduct, where ��


there was no showing of gross negligence or wanton misconduct since, inter alia, there was

no evidence that officers intended to do harm.

Affirmed.

Morton Galane and Don C. Tingey, of Las Vegas, for Appellant.

Wiener, Goldwater, Galatz & Raggio; James E. Ordowski; Beckley, DeLanoy & Jemison

and Harry M. Reid, of Las Vegas, for Respondents.

1. False Imprisonment. Assuming without deciding that plaintiff, who was chief accountant of city, was not required to register as

an ex-felon because his California conviction had been expunged, and that he therefore was not committing

a misdemeanor in the presence of officers by not registering, officers were protected from civil suit for

false imprisonment following a false arrest by statute providing that no action may be brought against any

peace officer unless an act or omission amounts to gross negligence or to willful and wanton misconduct,

where there was no showing of gross negligence or wanton misconduct since, inter alia, there was no

evidence that officers intended to do harm. NRS 41.034, 207.080- 207.150.

2. Municipal Corporations. There must be some overt act of perversity, depravity or oppression done to inflict injury in a malicious

manner in order to remove police officer from the protection afforded by statute providing that no action

may be brought against a peace officer, unless such act or omission amounts to gross negligence or to

willful and wanton misconduct. NRS 41.034.

OPINION


In 1949 the appellant plead guilty, in the state of California, to two counts of

embezzlement. On January 4, 1955, having fulfilled the terms of his probation, he changed

his plea to not guilty, pursuant to the provisions of California Penal Code § 1203.4 and his

conviction was expunged from the record. In April, 1965, he was appointed to the position of

chief accountant for the City of Boulder City. As a result of that employment his fingerprints

were submitted to the Federal Bureau of Investigation.

At about noon on July 23, 1965, the respondents, Smith and 6�� A�� $��6�� $�� A�� +��

�� #1��


Garn, police officers of Boulder City, Nevada, and respondent, Grana, a police trainee of

Henderson, Nevada, doing apprentice work with the Boulder City police force, went to

appellant's residence and arrested him for failing to register as an ex-felon. NRS 207.080 to

207.150. The information revealing his prior conviction had been gleaned by the officers

from the F.B.I. “rap sheet” furnished after his fingerprints had been submitted. The “rap

sheet” contained no information about the subsequent expungement. Before making the arrest

the officers checked with other officials in Boulder City, the Police Department of Las Vegas,

Nevada and the Clark County Sheriff's office to determine if the appellant had registered with

them. Facts of the expungement were discovered within a relatively short period of time after

the arrest and the appellant was released from custody.

[Headnote 1]

Thereafter he brought an action for false imprisonment following a false arrest. He

contends that because of the expungement in California he was not required to register as an

ex-felon in Nevada, and was, therefore, not violating any of the laws of this state. At the close

of the appellant's case the trial court granted the respondents' motion for dismissal pursuant to

NRCP 41 (b). On a motion for an involuntary dismissal made by a defendant pursuant to

NRCP 41(b), the truth of plaintiff's evidence and all reasonable inferences flowing from it

must be accepted by the trial court and all the evidence must be interpreted most strongly in

favor of the plaintiff and against the defendant. Bates v. Cottonwood Cove Corp., 84 Nev.

388, 441 P.2d 622 (1968). Assuming, without deciding, that the appellant was not required to

register as an ex-felon (NRS 207.080 to 207.150), and that he was therefore not committing a

misdemeanor in the presence of the officers by not registering, the respondents were protected

from a civil suit for false imprisonment following a false arrest by the provisions of NRS

41.034, 1 and the record in this case compels dismissal pursuant to NRCP 41 (b).

This case presents another instance where reliance upon a F.B.I. “rap sheet” has led to

difficulty. Boley v. State, 85 Nev. 466, 456 P.2d 447 (1969). Had the police officers been less

zealous, and instead used some caution, the unfortunate events ��

____________________

1

NRS 41.034 (Repealed Statutes of 1967, Chapter 368, page 993): “No action may be brought under NRS

41.031 or against the employee which is based upon an act or omission of any peace officer or fireman, unless

such an act or omission amounts to gross negligence or to willful and wanton misconduct.”


recounted here would probably not have arisen. The officers involved and their municipal

employees are indeed fortunate that at the time of the arrest NRS 41.034 provided

municipalities and their policemen and firemen with immunity from civil suits for their acts

in the course of their employment unless those employees acted with gross negligence or

were guilty of wilful and wanton misconduct. Chapman v. City of Reno, 85 Nev. 365, 455

P.2d 618 (1969).

The appellant contends that none of the respondents are protected by NRS 41.034 because

the act of arresting the appellant without a warrant amounted to gross negligence as well as

wilful and wanton misconduct.

There is no evidence that the officers were grossly negligent in performing their duties

leading up to the arrest. After receiving the F.B.I. “rap sheet” listing the appellant as an

ex-felon, they checked with officials in Boulder City, Las Vegas and Clark County to

determine if the appellant had registered pursuant to the statutory requirements. They found

no such registration.

In Hart v. Kline, 61 Nev. 96, 116 P.2d 672 (1941), this court adopted the following

language: “Gross negligence is substantially and appreciably higher in magnitude and more

culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise

even a slight degree of care. It is materially more want of care than constitutes simple

inadvertence. It is an act or omission respecting legal duty of an aggravated character as

distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the

absence of slight diligence, or the want of even scant care. It amounts to indifference to

present legal duty, and to utter forgetfulness of legal obligations so far as other persons may

be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.

The element of culpability which characterizes all negligence is, in gross negligence,

magnified to a higher degree as compared with that present in ordinary negligence. Gross

negligence is manifestly a smaller amount of watchfulness and circumspection than the

circumstances require of a prudent man. But it falls short of being such reckless disregard of

probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross

negligence differ in degree of inattention, while both differ in kind from willful and

intentional conduct which is or ought to be known to have a tendency to injure.”

Here the record reveals, that a reasonable man upon the particular circumstances of this

case could not conclude that �� #�� F��A��=/�$��""


the arrest of the appellant evidences a failure on the part of the officers to exercise even a

slight degree of care, nor such an aggravated act or omission absent of even slight diligence

nor want of even scant care nor utter forgetfulness of legal obligations so far as other persons

may be affected nor such heedless and palpable violation of legal duty respecting the rights of

others as to constitute gross negligence. Cf. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447

(1953).

The trial court also determined, as a matter of law, that the officers were not guilty of

either wilful or wanton misconduct. In Rocky Mountain Produce v. Johnson, 78 Nev. 44, 369

P.2d 198 (1962), this court analyzed “wanton misconduct,” and distinguished wilful

misconduct from gross negligence: “It [wanton misconduct] is most accurately designated as

wanton and reckless misconduct. It involves no intention, as does wilful misconduct, to do

harm, and it differs from negligence in that it does involve an intention to perform an act that

the actor knows or should know, will very probably cause harm.”

[Headnote 2]

The evidence clearly shows that the officers were not guilty of wilful misconduct. There is

no evidence that they intended to do any harm to the appellant. They were merely making

what they apparently believed to be a routine arrest. Neither did their conduct manifest any

intention to perform an act which they knew or should have known would very probably

cause harm. Every arrest causes some harm. An arrestee is deprived of his liberty, and at the

very least is mentally upset. Here there is no evidence of an intentional doing of an act, or the

intentional failure to do an act in such reckless disregard of the circumstances and conditions

as would cause these officers to know or have reason to know that such conduct would in a

high degree of probability result in substantial harm to the appellant. To be wanton such

conduct must be beyond the routine. There must be some overt act of perversity, depravity or

oppression done to inflict injury in a malicious manner. Such would be the type of

misconduct that would be necessary to remove a police officer from the protection afforded

by NRS 41.034 as it read when this arrest took place. Chapman v. City of Reno, supra. The

appellant presented no evidence to show wanton misconduct. There was no showing that the

officers had any reason for malice toward him. Southern Pacific Co. v. Harris, 80 Nev. 426,

395 P.2d 767 (1964); Rocky Mountain Produce v. Johnson, supra; Crosman v. Southern

Pacific Co., 44 Nev. 286, 194 P. 839 (1921). Reliance upon the F.B.I. “rap sheet” together

with the act of the officers in checking � �� A�� -��G��


with officials in Boulder City, Las Vegas and Clark County clearly removes their conduct

from the sphere of wantonness.

If reasonable minds cannot differ in drawing a conclusion from the facts presented, then

gross negligence and wilful or wanton misconduct become questions of law. Here these

questions of law were properly decided by the trial court. Rocky Mountain Produce v.

Johnson, supra; Garland v. Greenspan, 74 Nev. 88, 323 P.2d 27 (1958); Hart v. Kline, supra;

Mitrovich v. Pavlovich, 61 Nev. 62, 114 P.2d 1084 (1941).

The judgment of the district court is affirmed.

Thompson, C. J., and Mowbray and Zenoff, JJ., concur.


I concur in the result because, when the police officers undertook to arrest appellant for

failure to register as an ex-felon, he could have prevented any injury to himself by informing

them that his convictions had been expunged. In my view, our decision should be based on

that ground, rather than on the rationale that under NRS 41.034 a false arrest was no tort

unless performed with gross negligence.

____________

��89 Nev. 111, 111 (1973) Alex v. State��

WALTER ALEX, Appellant, v. STATE


No. 6914

March 22, 1973 507 P.2d 718

Appeal from an order denying petition for post-conviction relief; Eighth Judicial District


The Supreme Court held that trial court did not abuse its discretion in denying petition for

post-conviction relief on ground that another person had committed the crime where the other

person had come forward in like fashion for other convicted persons and the record of the

trial supported defendant's conviction.

Affirmed.


Robert List, Attorney General, Robert A. Groves, Deputy Attorney General, and Roy A.

Woofter, District Attorney, Clark County, for Respondent.

��89 Nev. 111, 112 (1973) Alex v. State��

Criminal Law.

Trial court did not abuse its discretion in denying petition for post-conviction relief on ground that

another person had committed the crime where the other person had come forward in like fashion for

other convicted persons and the record of the trial supported defendant's conviction.

OPINION

Per Curiam:

Walter Alex, through a post-conviction proceeding, seeks release from prison on the

ground that another person, one Alfred “Cat” Adams, committed the crime. Adams so

testified. The district court did not believe his testimony since he had come forward in like

fashion for other convicted persons, and since the record of the trial otherwise supports the

conviction of Alex. The court acted within its discretion.

Affirmed.

____________

��89 Nev. 112, 112 (1973) Bielling v. Sheriff��

JAMES FARRELL BIELLING, Appellant, v. SHERIFF,


No. 7129

March 27, 1973 508 P.2d 546

Appeal from an order denying pre-trial petition for a writ of habeas corpus, Eighth Judicial

District Court, Clark County; Leonard I. Gang, Judge.

The Supreme Court held that information charging defendant with involuntary

manslaughter on basis of vehicular homicide was fatally defective where it charged defendant

only with ordinary negligence.

Reversed.

Morgan D. Harris, Public Defender, and Thomas D. Beatty, Assistant Public Defender,




1. Automobiles. Information charging defendant with involuntary manslaughter on basis of vehicular homicide was fatally

defective where it charged defendant only with ordinary negligence. NRS 193.190, 200.070.

��89 Nev. 112, 113 (1973) Bielling v. Sheriff��

2. Homicide. In order to properly charge a defendant with the offense of involuntary manslaughter, the information

must specify acts of criminal negligence. NRS 193.190, 200.070.

OPINION

Per Curiam:

[Headnote 1]

In this appeal from the denial of pre-trial habeas relief appellant's sole contention is that

the information, charging him with involuntary manslaughter, a felony under NRS 200.070, is

fatally defective. We agree.

Respondent concedes that the information filed herein only charges appellant with

ordinary negligence. While many states have enacted legislation which permit convictions in

vehicular homicide cases without the showing of criminal negligence, Nevada has not done

so. “The authorities are agreed, in the absence of statutory regulations denouncing certain acts

as criminal, that in order to impose criminal liability for a homicide caused by negligence,

there must be a higher degree of negligence than is required to establish negligent default on a

mere civil issue.” People v. Penny, 285 P.2d 926, 937 (Cal. 1955). Cf. State v. Lewis, 59

Nev. 262, 91 P.2d 820 (1939).

[Headnote 2]

“In every crime or public offense there must exist a union, or joint operation of act and

intention, or criminal negligence.” NRS 193.190. In order to properly charge appellant with

the offense of involuntary manslaughter, the information must specify the acts of criminal

negligence upon which the state is relying to try to obtain a conviction. See Simpson v.

District Court, 88 Nev. 654, 503 P.2d 1225 (1972).

We reverse, without prejudice to a new and sufficient accusation.

____________

��89 Nev. 113, 113 (1973) Cairns v. Sheriff��

HENRY HOWARD CAIRNS, Jr., Appellant, v. SHERIFF,


No. 7154

March 29, 1973 508 P.2d 1015




The Supreme Court held that even if state failed to prosecute law violators who had agreed

to become informers, such fact did not constitute either an unlawful administration of subject

statute or evidence of intentional or purposeful discrimination against defendant, in violation

of equal protection guarantee; defendant could not be found to have been subjected to

unconstitutional discrimination because some persons charged with identical offenses were

granted immunity if they informed on three other narcotic offenders, in absence of allegation

and proof that defendant was a member of class being prosecuted solely because of race,

religion, color or the like, or that he alone was the only person who had been prosecuted

under statute. In addition, the Court held that initiation of prosecution for illegal sale of

narcotics by indictment, rather than by information, did not violate due process or equal

protection.

Affirmed.

George H. Spizzirri, of Las Vegas, for Appellant.



1. Constitutional Law. Even if state failed to prosecute law violators who had agreed to become informers, such fact did not

constitute either an unlawful administration of subject statute or evidence of intentional or purposeful

discrimination against defendant, in violation of equal protection guarantee; defendant could not be found

to have been subjected to unconstitutional discrimination because some persons charged with identical

offenses were granted immunity if they informed on three other narcotic offenders, in absence of allegation

and proof that defendant was a member of class being prosecuted solely because of race, religion, color or

the like, or that he alone was the only person who had been prosecuted under statute. NRS 173.045,

252.110, 453.030, 453.210, subd. 2; U.S.C.A. Const. Amend. 14.

2. District And Prosecuting Attorneys.

Matter of the prosecution of any criminal case is within the entire control of the district attorney. NRS

173.045, 252.110.

3. Constitutional Law; Indictment and Information. Felonies may be prosecuted by either indictment or information; the statutory provisions are amply

sufficient to protect an accused from unfounded accusations; an accused proceeded against by an

indictment is not denied due process or equal protection. NRS 173.015 et seq., 252.110, 453.200;

Const. art. 1, § 8; U.S.C.A.Const. Amend. 5.

4. Constitutional Law. It does not violate due process to initiate a prosecution by �� $%��=@�/�(��)��&(&��/��!(@�&//5��H�'


information rather than by indictment. NRS 173.015 et seq., 252.110, 453.200; Const. art. 1, § 8;

U.S.C.A.Const. Amend. 5.

5. Constitutional Law. Initiation of prosecution for illegal sale of narcotics by indictment, rather than by information, did not

violate due process or equal protection. NRS 173.015 et seq., 252.110, 453.200; Const. art. 1, § 8;

U.S.C.A.Const. Amends. 5, 14.

OPINION

Per Curiam:

The Clark County Grand Jury returned an indictment charging appellant with the sale of

narcotics, a violation of NRS 453.030 and NRS 453.210(2). He sought pre-trial habeas relief

in the district court contending a violation of his constitutional rights because (1) of the policy

of the law enforcement officers in granting immunity from prosecution to those arrested for

narcotic violations who became “informers,” and (2) the prosecution was initiated by

indictment rather than by information. From a denial of habeas relief, this appeal.

1. Appellant's contention that his Fourteenth Amendment rights of equal protection were

violated stems from the fact that some persons charged with the identical offense were

granted immunity from prosecution if they informed on three other narcotic offenders.

Appellant cites no authority to support this proposition.

[Headnotes 1, 2]

The contention is untenable. Seemingly, it is the thought of appellant that the offer of

immunity conditioned on becoming an informant operates as a purposeful discrimination

against him and thus deprives him an equal protection of the law. Even if we concede that the

state has failed to prosecute law violators who have agreed to become informers, this does not

either constitute an unlawful administration of the statute or evidence of intentional or

purposeful discrimination against appellant. The matter of the prosecution of any criminal

case is within the entire control of the district attorney, NRS 173.045, NRS 252.110, and the

fact that not every law violator has been prosecuted is of no concern to appellant, in the

absence of an allegation and proof that he is a member of a class being prosecuted solely

because of race, religion, color or the like, or that he alone is the only person who has been

prosecuted under the statute. Without such charges, his claim cannot come within the class of

unconstitutional discrimination which was found to exist in Yick Wo v. Hopkins, 118 U.S.

356 >�''"?��;�,��*��


(1886), and McFarland v. American Sugar Co., 241 U.S. 79 (1916). See Snowden v. Hughes,

321 U.S. 1 (1944) and cases cited therein.

2. Appellant's contention that he was denied due process and equal protection because the

prosecution was initiated by indictment rather than by information is equally without merit.

He argues that when an accused is charged by indictment that basic rights which are afforded

at a preliminary hearing, such as the right (a) to counsel, (b) to confront and cross examine

the witnesses who must be named on the information and (c) to present evidence, are lost. He

also urges there are no standards to guide the prosecutor in selecting between the two

alternative procedures.

[Headnotes 3-5]

The use of indictments in all cases warranting serious punishment was the rule at common

law, Smith v. United States, 360 U.S. 1 (1959), and is required in certain federal prosecutions

by the Fifth Amendment of the federal Constitution. It is the rule in this state, however, that

felonies may be prosecuted by either indictment or information. Nev. Const. art. 1, § 8; NRS

173.015 et seq., NRS 252.110; cf. NRS 453.200. The statutory provisions are amply

sufficient to protect an accused from unfounded accusations. United States v. Hocker, 268

F.Supp. 864 (D. Nev. 1967), aff. 394 F.2d 169 (9th Cir. 1968), cert. denied 392 U.S. 944

(1968). Although there are differences between the two procedures, an accused who is

proceeded against by an indictment is not denied due process or equal protection. It similarly

does not violate due process to initiate a prosecution by an information rather than a

indictment. Hurtado v. California, 110 U.S. 516 (1884); Morford v. Fogliani, 82 Nev. 79, 411

P.2d 122 (1966). See Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968).

Affirmed.

____________

��89 Nev. 117, 117 (1973) Fiman v. Sheriff��

RICK FIMAN, CURTIS FOX, JOEL WARD GARMAN, RANDY DAN HOPKINSON, aka

RANDY PETTY, RANDALL WILLIS HUDGINS, JOHN RUSSELL LOKEN, MIKE S.

LYSLE, GREG E. MARTINEZ, MIKE ROMERO, LOUIS JACKSON McCALLISTER, aka

JACK, STEVE D. SUTTON, DAN GEORGE DOIY, TOM ROBINSON Charged as TOM

ROBBINSON, JACK McCALLISTER, JAMES EDWARD HOOVER, MICHAEL GINES,

DAVID BUMGARDNER, RONNIE GOMEZ, ELROA LANE HANSEN, DONALD

STEVEN TUCKER, SALVATORE PATERNO, CAROL A. MERCADO, and HARVEY

DAVID RICH, Appellants, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.

Nos. 7155-7174 and 7176-7180

March 29, 1973 508 P.2d 1017

Appeals from orders denying pre-trial writ of habeas corpus, Eighth Judicial District


Affirmed.

George H. Spizzirri, of Las Vegas, for Appellants.



OPINION

Per Curiam:

The identical issues raised in these appeals were considered and rejected in Cairns v.

Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973), decided today.

Affirmed.

[Reporter's note: Identical opinions were filed in each of the above numbered cases. For

brevity they are consolidated herein.]

____________

��89 Nev. 118, 118 (1973) Gay v. Sheriff��

JIMMIE CLARK GAY, Appellant, v. SHERIFF, CLARK

COUNTY, NEVADA, Respondent.

No.7198

March 29, 1973 508 P.2d 1

Appeal from an order denying pre-trial petition for writ of habeas corpus, Eighth Judicial


Pre-trial petition for writ of habeas corpus brought by accused in prosecution for lewdness

with a minor. The district court denied the writ and the accused appealed. The Supreme Court

held that statement by alleged victim concerning her age which was made during voir dire

colloquy between magistrate and the victim prior to the time the oath was administered to her

was not competent to establish proof of age.


Morgan D. Harris, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark



Lawrence R. Leavitt, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. In cases where age of victim of crime is an issue, competent proof of age is essential.

2. Infants. Material elements of offense of “lewdness with a minor” are the acts of lewdness and the victim's age.

NRS 201.230.

3. Infants. In absence of competent proof of victim's age, defendant could not properly be convicted of lewdness

with a minor under the age of 14 years. NRS 201.230.

4. Infants. Statement by alleged victim concerning her age which was made during voir dire colloquy between

magistrate and the victim prior to the time the oath was administered to her was not competent to establish

proof of age in prosecution for lewdness with a minor.

5. Habeas Corpus. Where prosecuting attorney attempted to call victim's mother for announced purpose of showing the age

of the victim but the magistrate would not permit the mother to testify because he was satisfied that the

victim's age had been established, the state would be permitted 15 days from issuance of remittitur to take

further proceedings against the accused, who was charged with ��

��89 Nev. 118, 119 (1973) Gay v. Sheriff��

lewdness with a minor, otherwise the accused would be discharged for failure to establish the age of victim.

NRS 201.230.

OPINION

Per Curiam:

At the conclusion of a preliminary examination appellant was ordered to stand trial for

“lewdness with a minor,” a felony under NRS 201.230. He then sought habeas relief in the

district court and now appeals from the district court order denying habeas. His sole

contention is that he cannot be held for trial because the state failed to establish that the

victim of the alleged offense was under 14 years of age. The contention is well taken.

[Headnotes 1-3]

In cases where the age of a victim is an issue, competent proof of age is essential. The only

material elements of the crime charged are the acts of lewdness and the victim's age. The

record before us is barren of any document or sworn testimony that affixes the age of the

alleged victim.

[Headnote 4]

The only thing in this record that would indicate the age of the alleged victim appears in a

voir dire colloquy between the magistrate and the girl. In response to one of the questions

from the magistrate she stated that she was 11 years of age. The statement occurred after she

was called as a witness and prior to the time the oath was administered to her. That statement

is not competent to establish proof of age, a necessary element of NRS 201.230. 1 People v.

Adams, 47 P.2d 320 (Cal.App. 1935); People v. Levoy, 194 P. 524 (Cal.App. 1920). Cf.

Bennett v. Leypoldt, 77 Nev. 429, 366 P.2d 343 (1961); State v. Salgado, 38 Nev. 64, 150 P.

764 (1914).

[Headnote 5]

Since the age of the victim was not shown, as required by NRS 201.230, the order of the

district court cannot stand.

____________________

1


“Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting

the crime of rape and the infamous crime against nature, upon or with the body, or any part or member thereof,

of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions

or sexual desires of such person or of such child, shall be punished by imprisonment in the state prison for not

less than 1 year nor more than 10 years.” [Emphasis added.]

��89 Nev. 118, 120 (1973) Gay v. Sheriff��

However, because this record reflects that the prosecuting attorney attempted to call the

victim's mother for the announced purpose of showing the age of the victim and that the

magistrate would not permit the mother to testify because he [the magistrate] was satisfied

that “age” had been established, the state shall be allowed 15 days from the issuance of the

remittitur in this case to take further proceedings against appellant with respect to the charges

against him; otherwise he shall be discharged. Austin v. State, 87 Nev. 578, 491 P.2d 724

(1971).

Reversed and remanded for further proceedings in accordance with this opinion.

____________

��89 Nev. 120, 120 (1973) Hall v. Sheriff��

KEITH HALL, Appellant, v. SHERIFF, CLARK


No. 7138

March 29, 1973 507 P.2d 1039

Appeal from a pre-trial order denying a writ of habeas corpus, Eighth Judicial District

Court, Clark County; Carl J. Christensen, Judge.

Affirmed.

Douglas R. Pike, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H.

Leon Simon, Deputy District Attorney, Clark County, for Respondent.

OPINION

Per Curiam:

In this case, the district court correctly determined, contrary to appellant's contention, that

probable cause was established at the preliminary examination to show that embezzlement

had been committed by appellant. NRS 205.300; NRS 171.206; State v. Trolson, 21 Nev.

419, 32 P. 930 (1893). See State v.�;��(/�$��&=

��89 Nev. 120, 121 (1973) Hall v. Sheriff��

Monahan, 50 Nev. 27, 249 P. 566 (1926) and State v. Compton, 450 P.2d 79 (Idaho 1969).

Affirmed.

____________

��89 Nev. 121, 121 (1973) Junior v. State��

WILLIE JUNIOR, Appellant, v. THE


No. 6715

March 30, 1973 507 P.2d 1037

Appeal from conviction, of the Eighth Judicial District Court, Clark County; Howard W.

Babcock, Judge.

The district court found defendant guilty on charge of attempted murder and defendant

appealed. The Supreme Court, Zenoff, J., held that where State petitioned court to have

juvenile certified to stand trial as adult on charges of attempted robbery, robbery, and assault

with intent to kill, subsequent action by court which raised charge of assault with intent to kill

to charge of attempted murder was improper.

Affirmed as modified.





1. Infants. Charging a juvenile offender with crime more serious than that pending at time of his certification is

error.

2. Infants. Where State petitioned court to have juvenile certified to stand trial as adult on charges of attempted

robbery, robbery, and assault with intent to kill, subsequent action by court which raised charge of assault

with intent to kill to charge of attempted murder was improper.

3. Criminal Law. Where beauty salon located one-half block away from service station had been robbed within 15 minutes

of robbery of filling station giving rise to charge against defendant, and robberies were committed in same

fashion, admission, for purpose of establishing defendant's identity, of beauty salon owner's testimony

concerning robbery was not error.


4. Criminal Law. Where trial court erred in permitting charge against juvenile who had been certified for trial as adult to be

changed from assault with intent to kill to attempted murder, only difference was one of penalty and

reviewing court would correct sentence without remand.

OPINION


The facts which give rise to this appeal occurred on November 29, 1969 in Las Vegas.

Appellant, a 17-year-old juvenile, entered a service station with intent to commit robbery. He

forcibly took a service revolver from a policeman who happened to be in the service station

office and then went outside where he shot another policeman who was sitting in his patrol

car.

After his arrest the state petitioned the Clark County District Court to have appellant

certified to stand trial as an adult on three charges—attempted robbery, robbery and assault

with intent to kill.

The court, after a contested certification hearing, entered its order certifying appellant to

stand trial as a adult. Appellant does not challenge the certification proceedings. Instead, his

contention is that there was reversible error when subsequent to his certification to stand trial

as an adult, the charge of assault with intent to kill was elevated to the more serious charge of

attempted murder. The former charge, under NRS 200.400, bears a maximum penalty of 10

years while appellant was convicted and sentenced to serve 20 years for attempted murder.

[Headnotes 1, 2]

1. Charging a juvenile offender with a crime more serious than that pending at the time of

his certification is error. People v. Hoerle, 143 N.W.2d 593 (Mich. 1966). We held in A

Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 490 P.2d 1248 (1971), that a petition for

certification must adequately apprise the minor of the specific charges. As in that case Junior

was not apprised of the statute under which he was ultimately to be tried and convicted.

2. The trial court admitted the testimony of a Mrs. Smith concerning the robbery by two

Negro males of her beauty salon which was 1/2 block away from the service station involved

in this case and within 15 minutes of this crime. Both crimes were committed in similar

fashion.


[Headnote 3]

The testimony was received for the purpose of establishing the identity of the defendant,

and is admissible as an exception to the rule prohibiting evidence of a separate and distinct

offense. Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959).

[Headnote 4]

The record discloses no error other than already recited. As to that, the difference is one of

penalty and does not require remand to the trial court. The portion of appellant's sentence

which relates to the crime of attempted murder is hereby modified to bear the penalty of a

maximum of 10 years as if he were charged properly with the crime of assault with intent to

kill, a lesser included offense, Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966), instead of

attempted murder.


____________

��89 Nev. 123, 123 (1973) Jensen v. Sheriff��

WALTER PETE JENSEN, Appellant, v. SHERIFF,

WHITE PINE COUNTY, NEVADA, Respondent.

No. 7131

March 30, 1973 508 P.2d 4

Appeal from the denial of a pretrial writ of habeas corpus, Seventh Judicial District Court,

White Pine County; Joseph O. McDaniel, Judge.

The Supreme Court, Zenoff, J., held that evidence submitted at preliminary examination

established probable cause to hold defendant, who stopped his automobile along side road,

forcibly put 10-year-old girl into automobile, drove to and entered main road and traveled

short distance before ordering child to exit, for trial on charge of kidnapping, rather than false

imprisonment.

Affirmed.

Robert Gaynor Berry, of Carson City, for Appellant.

Robert List, Attorney General, Carson City; Merlyn H. Hoyt, District Attorney, and Rupert

C. Schneider, Deputy District Attorney, White Pine County, for Respondent.

1. Kidnapping. False imprisonment differs from kidnapping in that kidnapping is aggravated by removal of the

imprisoned person to some other place.


2. Kidnapping. “Kidnapping” is the carrying away of a person for a purpose, such as ransom or the committing of a

bodily offense. NRS 200.310.

3. False Imprisonment. “False imprisonment” is the withholding of the freedom of movement of a person for other reasons than

ransom or the committing of a bodily offense. NRS 200.460. subds. 1, 2.

4. Kidnapping.

“Kidnap” means to take and carry away any person by unlawful force or fraud and against his will. NRS

200.310, 200.310, subd. 1.

5. Kidnapping.

It is the fact, not the distance, of forcible removal of victim that constitutes kidnapping. NRS 200.310,

200.310, subd. 1.

6. Kidnapping. Dominating element of crime of kidnapping is the intent with which acts enumerated in kidnapping

statute are done, but the essential criminal intent is deemed included in the doing of the prohibited act.

NRS 200.310, 200.310, subd. 1.

7. Kidnapping.

Necessary intent for crime of kidnapping may be inferred from acts of the accused. NRS 193.200.

200.310, subd. 1.

8. Criminal Law. Intent, as an element of crime, may be inferred from series of acts and circumstances.

9. Criminal Law. Evidence submitted at preliminary examination established probable cause to hold defendant, who

stopped his automobile along side road, forcibly put 10-year-old girl into automobile, drove to and entered

main road and traveled short distance before ordering child to exit, for trial on charge of kidnapping, rather

than false imprisonment. NRS 171.206, 193.200, 200.310, 200.310, subd. 1, 200.460, subds. 1, 2.

OPINION


Appellant, charged with kidnapping in the first degree, a felony under NRS 200.310, was

ordered to stand trial for the offense at the conclusion of a preliminary examination. He then

petitioned the district court for habeas relief, which was denied, and now appeals.

The record shows, inter alia, that appellant drove his automobile along a side road near a

public swimming pool in White Pine County; that he stopped the car, invited a 10-year-old

girl into the car; that she declined his invitation; that he then placed one had over her mouth

and forcibly put her in the �� 5�� 0�� 2��# �5��


vehicle; that he drove to and entered the main road and, after traveling that artery a “short

distance,” he stopped the car and ordered her to exit; and that she was found a short time later

walking along the roadway toward the area from which she had been abducted. These events

were witnessed and reported to the authorities and appellant was arrested shortly thereafter.

Appellant concedes the confinement and detention of the young girl but strongly urges that

the recited events merely constitute “false imprisonment” because the short period of time

involved and the short distance traveled proscribe the finding of the “intent” necessary to

make the offense “kidnapping.” The argument is not persuasive.

“False imprisonment is a unlawful violation of the personal liberty of another, and

consists of confinement or detention without sufficient legal authority.” NRS 200.460 (1).

[Emphasis added.] Section 2 of that statute provides for civil damages and the criminal

sanction of a gross misdemeanor.

[Headnotes 1-3]

While kidnapping embraces the elements of false imprisonment the converse is not true.

False imprisonment differs from kidnapping in that the latter is aggravated by removal of the

imprisoned person to some other place. Samson v. State, 174 N.E. 162 (Ohio App. 1930).

Both offenses embrace different concepts. Kidnapping is generally understood to constitute

the carrying away of a person for a purpose, such as ransom or the committing of a bodily

offense. We think of a false imprisonment as the withholding of the freedom of movement of

a person for other reasons, such as when the person is caught in the purported act of

shoplifting or the like.

The applicable portion of our kidnapping statute reads: “[E]very person who leads, takes,

entices, or carries away or detains any minor with the intent to keep, imprison, or confine it

from its parents, guardians, or any other person having lawful custody of such minor, or with

the intent to hold such minor to unlawful service, or perpetrate upon the person of such minor

or unlawful act shall be deemed guilty of kidnapping in the first degree.” NRS 200.310(1).

[Emphasis added.] The statute spells out the several specific acts in the disjunctive, and any

one of them is sufficient to taint the act with criminality. State v. Berry, 93 P.2d 782 (Wash.

1939).

[Headnotes 4, 5]

Kidnap means to take and carry away any person by unlawful force or fraud and against

his will. We attach no other requirements such as a minimum distance of asportation. It is ��


the fact, not the distance, of forcible removal of the victim that constitutes kidnapping. State

v. Clark, 455 P.2d 844 (N.M. 1969). Convictions under kidnapping statutes similar to NRS

200.310 have been sustained on lesser asportations, i.e., People v. Enriquez, 11 Cal.Rptr. 889

(Cal.App. 1961), where the victim was moved 6 feet within a building; People v. Melendrez,

77 P.2d 870 (Cal.App. 1938), where the victim was moved 50 to 75 feet; and Cox v. State,

177 N.E. 898 (Ind. 1931), where the victim was moved 90 feet.

[Headnotes 6, 7]

The dominating element of the crime of kidnapping is the intent with which the acts

enumerated in the statute are done, but the essential criminal intent is deemed included in the

doing of the prohibited act. State v. Rosegrant, 93 S.W.2d 961 (Mo. 1936). The necessary

intent may be inferred from the acts of the accused. Brown v. State, 111 N.E.2d 808 (Ind.

1953). “Intention is manifested by the circumstances connected with the perpetration of the

offense, . . .” NRS 193.200; Wilson v. State, 85 Nev. 88, 450 P.2d 360 (1969); State v. Hall,

54 Nev. 213, 13 P.2d 624 (1932).

[Headnotes 8, 9]

We fully recognize the rule that intent, as an element of crime, is seldom susceptible of

proof by direct evidence, and that it may be inferred from a series of acts and circumstances.

Wilson v. State, supra; Rice v. United States, 149 F.2d 601 (10th Cir. 1945). In the factual

context of the record before us the element of intent was met. The evidence submitted at the

preliminary examination amply establishes probable cause to hold appellant for trial on the

charge of “kidnapping.” NRS 171.206; NRS 200.310(1).

The order of the district court is affirmed.


____________

��89 Nev. 126, 126 (1973) Davidson & Company v. Allen��

DAVIDSON & COMPANY, Limited, Appellant, v. JOHN

S. ALLEN and BERNICE J. ALLEN, Respondents.

No. 6928

March 30, 1973 508 P.2d 6

Appeal from summary judgment for defendants; Eighth Judicial District Court, Clark

County; Leonard I. Gang, Judge.


Action by judgment creditor against purported judgment debtors to recover upon default

judgment rendered by Canadian court. The district court entered summary judgment for the

purported judgment debtors and the judgment creditor appealed. The Supreme Court,

Thompson, C. J., held that where defendants were not domiciliaries of Canada when cause of

action arose, or at any other time, they were not present in Canada, nor did they commit acts

there giving rise to the cause of action asserted in Canada and they had no contact whatsoever

with the plaintiff or its representatives either in Canada or Nevada, essential minimum

contracts for the exercise of in personam jurisdiction by the Canadian court did not exist and

its default judgment against defendants would not be recognized.

Affirmed.

George L. Albright and William L. McGimsey, of Las Vegas, for Appellant.

Larry C. Johns, of Las Vegas, for Respondents.

1. Appeal and Error. On appeal from entry of summary judgment in favor of purported judgment debtors in judgment

creditor's action to recover on Canadian default judgment, reviewing court was required to state the facts

most advantageously to the judgment creditor.

2. Judgment. Before default judgment of foreign nation is recognized in the United States, the American court must be

convinced that the foreign court possessed jurisdiction.

3. Courts. The purpose of jurisdictional standards is to assure that it is fair to require the parties to litigate their

controversy in the court of given community.

4. Judgment. Supreme Court is free to review the jurisdictional basis of foreign judgment in action to recover on

foreign judgment.

5. Judgment. In determining whether Canadian court had in personam jurisdiction over defendants in order to render

default judgment, standards of judicial power of the United States, rather than those of Canada, governed.

6. Constitutional Law. Nondomiciliaries of the forum state may be subjected to personal jurisdiction of that state without

offending the demands of either procedural or substantive due process when there is appropriate

authorization for the acquisition of such jurisdiction in manner it was acquired, and sufficient contacts

between the defendant and the forum relevant to the cause of action existed to satisfy traditional notions of

fair play and substantial justice.


7. Judgment. Where defendants were not domiciliaries of Canada when cause of action arose, or at any other time, they

were not present in Canada, nor did they commit acts there giving rise to the cause of action asserted in

Canada and they had no contact whatsoever with the plaintiff or its representatives either in Canada or

Nevada, essential minimum contacts for the exercise of in personam jurisdiction by the Canadian court did

not exist and its default judgment against defendants would not be recognized.

OPINION


This action was instituted by Davidson & Company, Limited, a Canadian brokerage firm,

against the Allens to recover $12,604.23 allegedly due upon a default judgment for that

amount entered by a court of general jurisdiction in British Columbia, Canada. Our district

court found that the Canadian court lacked jurisdiction to render a valid in personam

judgment against the Allens. Accordingly, it entered summary judgment for the defendants,

from which this appeal is taken.

[Headnote 1]

Stating the facts most to the advantage of Davidson & Company, as we are bound to do

[Smith v. Hamilton, 70 Nev. 212, 213, 265 P.2d 214 (1953); Franktown v. Marlette, 77 Nev.

348, 352, 364 P.2d 1069 (1961); Pine v. Leavitt, 84 Nev. 507, 513, 445 P.2d 942 (1968)], it

appears that Robert Van Holten spoke with John Allen and six other persons about

purchasing stock in a Canadian mining company. Believing that he was authorized to do so,

Van Holten, by telephone, ordered the stock for Allen and the others through Davidson &

Company. Van Holten was not an agent for Davidson, nor did he have written authorization

to act for Allen. Allen never had an account with Davidson, nor any dealings with that firm.

The stock was purchased and the seven Nevada persons were billed separately for their shares

and all except Allen, apparently paid.

Davidson & Company commenced an action against the Allens in the appropriate court in

British Columbia, Canada, to recover the purchase price. Process was personally served upon

the Allens at Las Vegas, Nevada, pursuant to a rule of court of British Columbia authorizing

such service. The Allens did not appear in the Canadian action, and a judgment in default of

their appearance was thereafter entered.


[Headnotes 2-5]

1. Before a default judgment of a foreign nation is recognized in the United States, the

American court must be convinced that the foreign court possessed jurisdiction. Restatement

(Second), Conflict of Laws § 98, comment c (1969). This is only right, since the purpose of

jurisdictional standards is to assure that it is fair to require the parties to litigate their

controversy in the court of a given community. The potential for unfairness is much greater

when the adversary does not appear and a judgment by default is taken against him. It is for

this reason, that we are free to review the jurisdictional basis of the foreign judgment. The

Supreme Court in Griffin v. Griffin, 327 U.S. 220 (1946), noted “due process requires that no

other jurisdiction shall give effect, even as a matter of comity, to a judgment acquired

elsewhere without due process.” Id. at 229. 1 And, the standards of judicial power of the

United States govern, rather than those of Canada. Cherun v. Frishman, 236 F.Supp. 292

(D.D.C. 1964).

[Headnote 6]

2. In line with relevant holdings of the United States Supreme Court [International Shoe

Co. v. Washington, 326 U.S. 310 (1945); Travelers' Health Assn. v. Virginia, 339 U.S. 643

(1950); Perkins v. Benguet Mining Co., 342 U.S. 437 (1952); McGee v. International Life

Ins. Co., 355 U.S. 220 (1957); Hanson v. Denckla, 357 U.S. 235 (1958)], Nevada has

recognized that nondomiciliaries of the forum state may be subjected to the personal

jurisdiction of that state without offending the demands of either procedural or substantive

due process. Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968). The preconditions are the

existence of appropriate authorization for the acquisition of such jurisdiction in the manner it

was acquired, and sufficient contacts between the defendant and the forum relevant to the

cause of action to satisfy “traditional notions of fair play and substantial justice.” Mizner v.

Mizner, supra, at 271. This is the line of inquiry we must pursue in deciding whether to

recognize the Canadian default judgment, and to allow its enforcement in the courts of

Nevada.

____________________

1

Hilton v. Guyot, 159 U.S. 113 (1895), announced the doctrine that recognition will be denied unless the

rendering jurisdiction would recognize an analogous judgment by the requested forum. The decision rested

“upon the broad ground that international law is founded upon mutuality and reciprocity.” Id. at 228. The Hilton

opinion did not discuss whether its doctrine would be binding on state courts. It probably is not. Restatement

(Second), Conflict of Laws § 98, comment e (1969).

��89 Nev. 126, 130 (1973) Davidson & Co. v. Allen��

[Headnote 7]

The record does not show essential minimum contacts. The Allens were not domiciliaries

of Canada when the cause of action arose, or at any other time. They were not present in

Canada, nor did they commit acts there giving rise to the cause of action asserted in that

jurisdiction. Cf. Mizner v. Mizner, supra; Bates v. Bates, 53 Nev. 77, 292 P. 298 (1930).

Indeed, they had no contact whatsoever with Davidson & Company or its representative

either in Canada or Nevada. Cf. McGee v. International Life Ins. Co., supra, where a single

transaction of direct solicitation within the judgment rendering state was found to be

sufficient; cf. Cherun v. Frishman, 236 F.Supp. 292 (D.D.C. 1964), concerning a Canadian

transaction. In these circumstances, a predicate for the exercise of in personam jurisdiction by

the Canadian court does not exist.

Affirmed.


____________

��89 Nev. 130, 130 (1973) Sorg v. State��

EMMETT FRED SORG, Appellant, v. THE


No. 6950

March 30, 1973 507 P.2d 1038

Appeal from judgment of conviction and sentence of the First Judicial District Court,

Carson City; Frank B. Gregory, Judge.

Defendant was convicted in the district court of illegal possession of a cartridge or weapon

capable of emitting tear gas, and he appealed. The Supreme Court held that under the facts of

the case, the statutory definition and application of term “tear gas” was not unconstitutionally

vague.

Affirmed.


Robert List, Attorney General; Michael E. Fondi, District Attorney, Carson City, for

Respondent.

Criminal Law.

Under facts in prosecution for illegal possession of cartridge or weapon capable of emitting tear gas,

statutory definition and �� 0��2��

��89 Nev. 130, 131 (1973) Sorg v. State��

application of term “tear gas” was not unconstitutionally vague. NRS 202.370, subd. 2, 202.380.

OPINION

Per Curiam:

After a jury trial, the appellant was convicted of the illegal possession of a cartridge or

weapon capable of emitting tear gas (NRS 202.380), and was sentenced to pay a $500 fine.

The appellant contends that the definition of “tear gas,” as defined in NRS 202.370(2), and

as applied in NRS 202.380, is unconstitutionally vague. Under the facts of this case, we find

the contention to be unwarranted. Cf. Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970);

People v. Horner, 87 Cal.Rptr. 917, 920 (Cal.App. 1970). The record contains substantial

evidence to support the appellant's conviction and prove each and every element of the crime

with which he was charged. Marshall v. State, 87 Nev. 536, 490 P.2d 1056 (1971); Harris v.

State, 83 Nev. 404, 432 P.2d 929 (1967).

Affirmed.

____________

��89 Nev. 131, 131 (1973) Hartford Insurance Group v. Winkler��

THE HARTFORD INSURANCE GROUP, aka HARTFORD FIRE INSURANCE

COMPANY, aka HARTFORD ACCIDENT AND INDEMNITY COMPANY, an Insurance

Corporation, Appellant, v. EUGENE WINKLER, Individually; JACQUELINE WINKLER,

Individually; and JACQUELINE WINKLER, as Guardian and Litem For CONNIE

WINKLER, BLAKE WINKLER, and TERESA WINKLER, Minors, Respondents.

No. 6924

April 2, 1973 508 P.2d 8

Appeal from order of the Eighth Judicial District Court, Clark County, denying motion for

a judgment notwithstanding the verdict or, in the alternative, a new trial; Joseph S.

Pavlikowski, Judge.

Action by driver's judgment creditors against automobile insurer who had issued policy

covering driver's husband. The district court denied insurer's motion for judgment n.o.v. or

for new trial and insurer appealed. The Supreme Court, ;��8�� +�� +�� ) ��

�� +��


Mowbray, J., held that evidence supported finding that driver was named insured with respect

to accident which occurred after she had left husband's household and filed for divorce and

that fact that driver did not have key to parents' automobile and was required to obtain

permission to use it was sufficient to support finding that automobile was not available for

her regular use, for purpose of nonowned vehicle coverage in husband's policy.

Affirmed.

Rose, Norwood, and Edwards and Roger L. Hunt, of Las Vegas, for Appellant.

Beckley, DeLanoy & Jemison, of Las Vegas, for Respondents.

1. Insurance. Evidence, including evidence that husband had applied for insurance in name of husband and wife

although policy was issued in name of husband only and that wife was covered when policy was issued

while she was in husband's household supported finding that wife was named insured at time of accident

which occurred after she had left household and filed for divorce but before divorce was granted.

2. Insurance. Past use of automobile is relevant in determining whether automobile was regularly available to driver,

for purpose of nonowned vehicle coverage, but critical time period would be month in which accident

occurred.

3. Insurance. Fact that driver did not have key to parents' automobile and was required to obtain permission to use it

was sufficient to support finding that automobile was not available for her regular use, for purpose of

nonowned vehicle coverage in policy of driver's husband.

4. Insurance. Instruction relating to construction of policy in favor of insured was proper and insurer was not entitled to

requested amplification.

5. Trial. Insurer was not entitled to requested “formula” instructions which covered same ground as instruction

already given.

OPINION


This is an appeal from an order of the district court denying ��+��


appellant's motion for a judgment notwithstanding the verdict or, in the alternative, a new

trial. NRCP 50 (b). 1

The Winklers, who are the respondents on appeal and who were the plaintiffs below,

commenced this action against the appellant, the Hartford Insurance Group, as a second

insurer of Tonya Webb, to recover damages the Winklers suffered when the vehicle in which

they were riding was struck by an automobile driven by Tonya but owned by her parents, Mr.

and Mrs. Archie Hughes. The Winklers first sued Tonya. Her parents' insurer provided a

defense and later offered full policy limits in an effort to settle the case. Upon advice of her

counsel, Tonya stipulated that judgment be entered in favor of the Winklers and against her

and that the policy limits of her parents' insurer be accepted as partial satisfaction of the

judgment. Additionally, Tonya assigned to the Winklers whatever rights she had under the

policy of her former husband, Edward Webb, in exchange for the Winklers' agreement not to

levy execution on any of Tonya's property, but to look solely to the policy for recovery on the

judgment. 2

Hartford initially denied liability on the ground that Tonya was not a resident of her

husband's household at the time of the accident, and later upon the additional ground that

Tonya was not driving a “nonowned” vehicle when she struck the Winklers' car. A jury trial

was held on the issue of whether Tonya Webb was covered under her former husband's

policy. The jury found that Tonya was so covered and returned a verdict in favor of the

Winklers for $58,450.

After the jury's verdict was returned, appellant moved for a judgment notwithstanding the

verdict or, in the alternative, for ��

____________________

1

NRCP 50(b):

“(b) Motion for Judgment Notwithstanding the Verdict. Not later than 10 days after service of written notice

of entry of judgment, a party, whether or not he has moved for a directed verdict, may move to have the verdict

and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a

verdict was not returned, such party, within 10 days after the jury has been discharged, may move for judgment

in accordance with his motion. A motion for a new trial may be joined with this motion, or a new trial may be

prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen

the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been

directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had

been directed or may order a new trial.”

2

Edward and Tonya were still married at the time of the accident, but they were divorced soon thereafter.


a new trial. The motion was predicated upon Hartford's contentions that Tonya Webb was

barred as a matter of law from recovery under the policy because (1) Tonya was not a named

insured at the time of the accident, since she was not then a resident of her husband's

household and (2) if she were, she was precluded from recovery because she was not

operating a nonowned vehicle when the accident occurred.

Edward and Tonya were married on December 24, 1963, and they took up residence in

Arizona. During the latter part of March or early April 1965, Tonya visited her parents in

Mesquite, Nevada. While she was visiting her parents, she filed for a divorce in Nevada, on

May 13, 1965. On June 25, 1965, after the divorce action had been filed, but before the

divorce was granted, Tonya, while driving her parents' car in Utah, failed to heed a stop sign

at a highway intersection and collided with the Winkler vehicle. Tonya and Edward were

divorced on August 16, 1965.

After their marriage, Edward applied to Hartford for an insurance policy in his and Tonya's

names. The policy was issued on January 8, 1964, in the name of Edward only. 3 The policy

was purchased with funds of the community. It was Edward's intention to obtain coverage for

Tonya as well as for himself. The premium was the same whether or not Tonya was

specifically named therein as an insured. When the policy was issued, Tonya also received a

card from Hartford indicating she was insured under the policy, as did Edward. The definition

of the named insured as set forth in section 1, page 2, of the policy is as follows: “ ‘[N]amed

insured' means the individual or husband and wife named in Item 1 of the declarations, but if

only one individual is named the term ‘named insured' also includes his spouse, if a resident

of the same household.”

It would appear from the record that, even though Tonya was not specifically named as an

insured in the policy when issued, she was covered at that time. Mr. James Burns, Hartford's

expert witness, testified in substance that a wife would receive the same coverage as her

husband, whether or not she was named in the policy, providing she was a resident of her

husband's household at the time the policy was issued. Indeed, during oral argument, counsel

for Hartford, upon questioning by the court, conceded that Tonya was a named insured within

the provisions of the policy at the time of its issuance. It is only reasonable to assume that at

the time the policy was written the ��

____________________

3

The copy of the application produced by Hartford at trial indicated that Tonya's name had been crossed out,

but there is nothing in the record to indicate who did so.


parties who purchased it believed that both of them were covered by the policy. In this case,

the policy is silent as to when the wife had to be a resident of her husband's household. The

trier of fact could properly conclude that, when the wife was a resident of the household at the

time the policy was issued and the policy is silent as to the time the wife had to be a resident

of her husband's household, she qualified as a “named insured” as long as she remained the

husband's spouse. As the Arizona court declared in Eureka-Security Fire & Marine Ins. Co. v.

Simon, 401 P.2d 759, 762-763 (Ariz.App. 1965), rehearing denied June 10, 1965, review

denied July 6, 1965:

“. . . The courts have said:

“ ‘Contracts of insurance are not to be construed to relieve insurance companies that write

them from coverages broader than they intended and from coverages they would not

advisedly have taken, if to do so is to leave one without protection who might reasonably be

held to be within the policy's provisions. Contracts of insurance are always construed most

strongly against the insurance company. Garnsky v. Metropolitan Life Insurance Co., 232

Wis. 474, 287 N.W. 731, 124 A.L.R. 1489; 32 C.J. 1152; 29 Am.Jur., Secs. 166-167.'

Johnson v. Maryland Casualty Co., 4 Cir., 125 F.2d 337 at 340 (1942).

“Stated another way, a policy of insurance is to be construed liberally in favor of the

insured and strictly against the insurer. North British & Mercantile Ins. Co. v. San Francisco

Securities Corporation, 30 Ariz. 599, 249 P. 761 (1926), Maryland Cas. Co. v. Hoffman, 75

Ariz. 103, 252 P.2d 82 (1952). It has been stated that the reason for this rule is that the

insured usually has no choice in the selection or means employed in drafting insurance

contracts, and that because these contracts are drawn and selected with great care and

deliberation by expert legal advisers either employed by or acting exclusively in the interest

of the insurance company, any ambiguity or uncertainty therein is the fault of the insurer.

Berry v. Acacia Mutual Life Ass'n, 49 Ariz. 413, 67 P.2d 478 (1937).”

In this case the trial judge so instructed the jury, and properly so. 4 ��*��

��; ��&="�,��

____________________

4

Instruction 19 provided as follows:

“The language of an insurance policy should be considered not in accordance with what the insurer intended

the words to mean, but what a reasonable person in the position of insured would have understood them to mean.

If the contract was prepared by the insurer and contains provisions reasonably subject to different

interpretations, one favorable to the insurer and one advantageous to the insured, the one favorable to the insured

will be adopted.”


In Aetna Casualty and Surety Company v. Miller, 276 F.Supp. 341 (D.Kan. 1967), a policy

was issued only in the name of the husband. At the time of the accident a divorce was

pending between the husband and wife, and they were living in different states. In Aetna, the

court held as a matter of law, quoting from Cal-Farm Insurance Company v. Boisseranc, 312

P.2d 401 (Cal.App. 1957), that the term “resident” had no absolute meaning, and that the

meaning varied according to circumstances. Accordingly, the federal court in Kansas said that

the wife was a resident of the same household as her husband at the time of the accident. At

347, 348, the federal court stated:

“Other cases in point [besides Cal-Farm] are Olson v. Standard Marine Insurance Co., 109

Cal.App.2d 130, 240 P.2d 379; Mazzilli v. Accident & Casualty Ins. Co., 35 N.J. 1, 170 A.2d

800; Central Manufacturers' Mutual Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209

S.W.2d 102, 1 A.L.R.2d 557.

“The Court has no difficulty in concluding, as a matter of law under the factual situation

here posed and well-grounded court decisions, the particular provisions of the automobile

liability insurance policy before the Court are ambiguous, uncertain and equivocal in

phraseology, and thus incapable of uniform connotation.

“. . .

“One of the great shames of American society is the ever-increasing divorce rate and

breakup of families which lead to increased crime, social and economic irresponsibility, and a

lessening of the moral fiber of good citizenship. Couple this with the population explosion

and great increase in motor vehicle traffic in a mobile-minded nation. If it were necessary as a

condition precedent to driving an automobile on a public highway under the protection of the

Financial Responsibility law, to examine the marital status of every driver to find out whether

he was married, divorced or separated temporarily from his fireside, bed and spouse, by duty,

business, or a family quarrel, no citizen using the highway could ever reasonably expect to be

protected by the other motorists' compliance with the state laws requiring the carrying of

automobile liability insurance.

“This Court does not believe that an insurance company, doing business as a quasi-public

institution, can or should be able to avoid liability under ambiguous provisions of a

policy—by attempting to require the spouse of the policy owner as an I ��+�� # ��


‘insured' to remain under the same roof and in the same physical household during the legal

existence of a marriage. Neither does this Court believe it is incumbent upon a user of the

highways to conduct a ‘bed check' to see if another motorist is fully and safely insured by the

fact that conjugal bliss is present in his home at the time.”

[Headnote 1]

The jury could properly conclude that Tonya was a named insured under the provisions of

the policy at the time of the accident.

We turn to consider Hartford's contention that, even if Tonya was covered by her prior

husband's policy, she is barred from recovery in this case because she was not driving a

nonowned automobile at the time of the accident. The policy provided coverage for those

insured thereunder when operating a nonowned vehicle. A nonowned vehicle is described in

the policy as one not owned by, or furnished to, or available for the regular use of, either the

named insured or a resident of the same household.

Tonya had been living with her parents about 3 months when the accident occurred. Ann

Hughes, Tonya's mother, testified that Tonya seldom used the car. Tonya, on the other hand,

testified that she used the car often when in Mesquite prior to leaving for summer school in

Utah. There was only one key for the car. Tonya, if using the car other than about town in

Mesquite, had first to obtain her parents' permission. There was no testimony as to any usage

by Tonya during the month of June, when she and her mother attended summer school in

Utah. It was on their first trip home from summer school that Tonya, accompanied by her

mother, had the accident.

[Headnote 2]

While past use of an automobile is relevant in determining whether the automobile was

regularly available to Tonya, the critical time period would be the month of June. In

American Casualty Co. v. Lattanzio, 188 A.2d 637, 641 (N.J.App. 1963), the court stated:

“. . . Evidence as to the past history of the use of the automobile is of assistance in

determining whether there was such an arrangement, but it is the condition which obtained at

the time of the accident which governs, and evidence of the past use of the automobile must

be related to this date.”


[Headnote 3]

The single fact that Tonya did not have a key to the automobile and was required to obtain

permission to use the automobile is in itself sufficient to support a finding that the automobile

was not available for her regular use. American Casualty Co. v. Lattanzio, supra, continues,

at 641:

“. . . A requirement that specific authorization be obtained as a prerequisite to the use of

the vehicle would sustain a finding that it was not ‘furnished' for his regular use. Likewise,

evidence that the insured was without access to the vehicle or the keys required to operate it,

would constitute strong evidence to the same effect. Assuming that the vehicle was furnished

to him, it would remain to be determined whether it was furnished for his regular use. If the

use for which the vehicle was furnished was an irregular, infrequent or casual one, it would

not come within the exclusionary clause and hence would be covered by the policy.”

In the case of Motorists Mutual Ins. Co. v. Sandford, 221 N.E.2d 596, 597 (Ohio App.

1966), the court defined “regular”:

“‘Regular,' as defined by Webster's New International Dictionary, means constant,

systematic. It has been defined as steady, methodical.”

The term “regular use” also has been defined by the Arizona court in Travelers Indemnity

Company v. Hudson, 488 P.2d 1008, 1012 (Ariz.App. 1971):

“. . . The phrase ‘regular use' is undefined in the policy. However, the term denotes

continuous use; uninterrupted normal use for all purposes; without limitation as to use; and

customary use as opposed to occasional use or special use. . . .”

In the instant case, it cannot be said as a matter of law that Tonya was not driving a

nonowned vehicle at the time of the accident and thus was barred from recovery. We

conclude, therefore, that the trial judge's finding that Tonya was not precluded from recovery

under the policy as a matter of law was proper and correct.

Hartford next complains that the trial judge improperly instructed the jury. Although

conceding the propriety of Instruction 19, supra, appellant urges that that instruction should

have been amplified by Proposed Instruction D-2, which provided as follows:

“However, if you determine that the language of the insurance policy is clear and

unambiguous, then the policy of insurance must be construed according to the ordinary, plain

meaning as would to any type of contract. You must then �� # �� 2


determine the facts as they exist in this case and apply them to the contract as you find it.”

[Headnote 4]

We do not agree. Instruction 19 properly stated the law governing the issue involved.

Eureka-Security Fire & Marine Ins. Co. v. Simon, 401 P.2d 759 (Ariz.App. 1965), supra.

Proposed Instruction D-2 added nothing thereto, and it was proper to reject it.

Additionally, appellant argues that the trial judge erred in refusing to give Proposed

Instructions D-3 through D-7. 5 The judge did give, without objection, Instruction 19-B,

which read as follows: 0��:�� :�� 8��&(�� "(�� 3 �� 4��3�� 1�� 2

____________________

5

Proposed Instruction No. D-3:

“In considering this case, you must consider all facts to determine whether or not Tanya [sic] Hughes Webb

Cromer fits within the policy definitions as set forth in the policy of insurance present in this case. If you find

that on June 25, 1965 she did not qualify under certain of the policy definitions, then in that event you must find

for the Defendant.”


“In considering this case, you must determine whether or not Tanya [sic] Hughes Webb [Cromer] was the

insured as set forth by the definition of the policy. You must further determine whether the automobile she was

driving on the day of the accident, July [sic] 25, 1965, was a non-owned vehicle as defined by the policy. If you

determine under the facts that Tanya [sic] Hughes Webb [Cromer] was not a named insured or was not driving a

non-owned automobile as defined by the terms of the policy of insurance issued by the Defendant, Hartford

Insurance Group, then you must find for the Defendant.”


“In considering this case, you must determine whether or not Tanya [sic] Hughes Webb Cromer fits within

the policy definitions of a named insured and was driving a non-owned automobile as defined by the said policy.

If after considering the facts you find that the policy of insurance does not cover her with respect to either or

both of the said definitions, then your determination must be for the Defendant.”


“You are instructed that the definition of ‘non-owned automobile' is as follows:

“ ‘ “Non-Owned automobile” means an automobile not owned by or furnished or available for the regular

use of either the named insured or any resident of the same household, and includes, while used

therewith, a home trailer not owned by the named insured or a utility trailer, but “non-owned automobile”

does not include a temporary substitute automobile.'

“If you find that Tanya [sic] Hughes Webb Cromer was not driving a vehicle within the above definition of

‘non-owned automobile', then you must find for the Defendant.”


“In considering this case, you must determine whether Tanya [sic] Hughes Webb Cromer fits within the

policy definition of ‘named


“In order for the Plaintiffs to recover in the present action, Plaintiffs must establish that on

June 25, 1965, the time of the Winkler accident, Tonya Webb was entitled to the insurance

coverage afforded to a named insured operating a non-owned vehicle within the meaning of

the Hartford policy admitted into evidence.”

[Headnote 5]

Proposed Instructions D-3 through D-7 covered in general the same ground as Instruction

19-B. It is not error for a trial judge to refuse additional instructions that cover the same

ground as an instruction already given. Eikelberger v. State ex rel. Dep't of Hwys., 83 Nev.

306, 311, 429 P.2d 555, 558 (1967). Further, Proposed Instructions D-3 through D-7 are

couched in the language of “formula” instructions. The use of formula instructions is

described in Ivie v. Richardson, 336 P.2d 781, 786 (Utah 1959):

“. . . This kind of instruction, sometimes referred to as a ‘formula' instruction, which

makes a recital in accordance with the contention of a party and ends with the conclusion: ‘*

* * and if you so find, then your verdict must be for [the party]' is not generally a good type of

instruction to give. This is so because it lends itself to the error just noted [it fails to take into

account the possible contributory negligence of the party] and also because it tends to be

argumentative rather than to set out the principles of law applicable to the issues impartially

as to both parties. For such reasons it is better to avoid giving instructions of that type.”

(Footnote omitted.)

The jury had before it the insurance policy which was received in evidence. The policy,

read in connection with Instructions 19, 19-A, and 19-B, fully advised the jury as to the issues

and the burden of proof involved in the case.

We find no error in the manner in which the trial judge instructed the jury.

The remaining assignments of error have been fully considered, and we find them wholly

lacking in merit. NRS 178.598.

The order of the district judge, denying appellant's motion ��

____________________

insured'. Such definition reads as follows: ‘“named insured” means the individual or husband and wife named in

Item 1 of the declarations, but if only one individual is named, the term “named insured” also includes his

spouse, if a resident of the same household'. ‘Item 1 of the declarations' reads as follows, ‘Webb, Edward M.,

Box 639, Taylor, Arizona'.

“Whether Tanya [sic] Hughes Webb Cromer falls within the above definition is for you to determine. If you

determine that she does not, you must find for the Defendant.”


for a judgment notwithstanding the verdict or, in the alternative a new trial, is affirmed.


____________

��89 Nev. 141, 141 (1973) Timmons v. Sheriff��

ROYCE DALE TIMMONS, Appellant, v. SHERIFF,


No. 7197

April 2, 1973 507 P.2d 1039

Appeal from an order denying a pre-trial writ of habeas corpus, Eighth Judicial District


Affirmed.





OPINION

Per Curiam:

The issue raised in this appeal was considered and rejected in Vandermark v. Sheriff, 89

Nev. 101, 507 P.2d 137 (1973).

Affirmed.

____________

��89 Nev. 141, 141 (1973) Reed v. Warden��

TYRONE MELTON REED, Appellant, v. WARDEN,


No. 6885

April 9, 1973 508 P.2d 2

Appeal from an order denying post-conviction relief. Eighth Judicial District Court, Clark


��89 Nev. 141, 142 (1973) Reed v. Warden��

The Supreme Court held that where defendant was not charged with offense until after the

second police station lineup at which he was positively identified, lack of counsel at the

lineups did not infringe upon defendant's constitutional rights.

Affirmed.

Gary A. Sheerin, State Public Defender, and Richard Bennett, Deputy Public Defender,




1. Criminal Law. Where defendant was not charged with offense until after the second police station lineup at which he

was positively identified, lack of counsel at the lineups did not infringe upon defendant's constitutional

rights.

2. Constitutional Law. While there is no constitutional right to counsel at identification lineup conducted before commencement

of any prosecution, due process forbids a lineup that is unnecessarily suggestive and conducive to

irreparable mistaken identification. U.S.C.A.Const. Amends. 5, 14.

OPINION

Per Curiam:

This appeal is taken from an order of the district court denying post-conviction relief to

Tyrone Melton Reed who, on October 15, 1968, had been convicted of robbery and sentenced

to a 15 year term in the state penitentiary. No appeal was ever taken from the judgment of

conviction.

The thrust of appellant's contention on appeal is that his constitutional rights were violated

because he was not afforded counsel at two “lineups” which were conducted before he was

charged with the offense.

On June 13, 1967, four persons, described at trial as “colored” males, robbed a Stop and

Go market in Las Vegas. The manager of the store, and his wife, victims of the robbery, gave

police the descriptions of the suspects who were in the store 10 or 15 minutes shortly before

closing time, and of the automobile they were driving. Based on the descriptions the vehicle

was stopped by the police and its occupants were taken to the police station where a lineup

was conducted. For reasons not apparent in the record only one of the victims viewed the first

lineup. The following day another lineup was conducted for � ��

��89 Nev. 141, 143 (1973) Reed v. Warden��

viewing by the other victim. Reed was positively identified at each lineup, at the preliminary

examination and at the trial. He was not charged with the offense until after the second

lineup.

[Headnote 1]

1. In view of the decision in Kirby v. Illinois, 406 U.S. 682 (decided June 7, 1972), and

our opinion in Baker v. State, 88 Nev. 369, 498 P.2d 1310 (decided June 21, 1972), the lack

of counsel at the lineups did not infringe upon appellant's constitutional rights.

[Headnote 2]

2. Although Kirby and Baker establish that there is no constitutional right to counsel at an

identification lineup conducted before commencement of any prosecution whatever, both

cases recognize that under Stovall v. Denno, 388 U.S. 293 (1967), the Due Process portion of

the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and

conducive to irreparable mistaken identification. This record contains no suggestion that

either lineup was conducted within the proscription of Stovall.

The judgment is affirmed.

____________

��89 Nev. 143, 143 (1973) Washoe County v. Pershing County��

WASHOE COUNTY, a Political Subdivision, ex rel. WASHOE MEDICAL CENTER, a

Public Hospital Organized and Existing Under and by Virtue of the Laws of the State of

Nevada, County of Washoe, Appellant, v. PERSHING COUNTY, a Political Subdivision of

the State of Nevada, and ARTHUR B. JOHNSON, ROBERT MAHER, DANIEL “BILL”

MILICH, County Commissioners of Pershing County, State of Nevada, Respondents.

No. 6929

April 11, 1973 508 P.2d 1013

Appeal from an order of the First Judicial District Court, Carson City, granting motion to

dismiss for failure to state a claim upon which relief can be granted. Frank B. Gregory, Judge.

One county filed suit against another county and its county commissioners for medical

services rendered to indigent resident of defendant county. The district court granted

defendants' motion to dismiss for failure to state claim upon which �� 4��J��8�� ) � �� "��


relief could be granted, and plaintiff appealed. The Supreme Court, Zenoff, J., held that

compliance with claim statutes providing that no person shall sue county unless he first

presents his claim to the board of county commissioners and county auditor for allowance and

approval and requiring that all unaudited claims be presented to board within 6 months from

time claim becomes due was not a condition precedent to suit by one county against another

county to recover for medical services rendered by hospital in plaintiff county to indigent

resident of defendant county.

Reversed.

Robert E. Rose, District Attorney, and William L. Hadley, Chief Deputy District Attorney,

Washoe County, for Appellant.

Roland W. Belanger, District Attorney, and Richard A. Wagner, Deputy District Attorney,

Pershing County, for Respondents.

Counties.

Compliance with claim statutes providing that no person shall sue county unless he first presents his

claim to the board of county commissioners and county auditor for allowance and approval and requiring

that all unaudited claims be presented to board within 6 months from time claim becomes due was not a

condition precedent to suit by one county against another county to recover for medical services rendered

by hospital in plaintiff county to indigent resident of defendant county. NRS 244.245-244.250,

450.400, 450.400, subd. 4.

OPINION


The complaint alleges that Peter A. Davidson, a resident of Pershing County, fell sick or

was injured in Pershing County on November 4, 1969 and was admitted to Humboldt General

County Hospital. On November 20, 1969 he was transferred to Washoe Medical Center. The

following day, November 21, 1969, appellant notified Pershing County pursuant to NRS

450.400 that the privileges and use of Washoe Medical Center were extended to Mr.

Davidson, and that since the patient was an indigent and entitled to care from Pershing

County, Washoe Medical Center looked to Pershing County to be responsible for his bill.


The patient was discharged on January 1, 1970 on which date the account of $6,636.20 for

his care became due and payable.

On August 20, 1970, almost 8 months after the patient's release from Washoe Medical

Center, appellant submitted a claim to respondents for hospitalization in the amount of

$6,636.20. This claim was denied on September 8, 1970 and on April 26, 1971 appellant filed

suit against respondents.

The trial court granted respondents' motion to dismiss for failure to state a claim upon

which relief can be granted because in the view of the trial court compliance with the claim

statutes NRS 244.245-50 is a condition precedent to bringing an action against a county under

NRS 450.400 and the complaint did not allege compliance with the claim statutes.

In this appeal we are presented with the question whether compliance with NRS

244.245-50 is a condition precedent to a suit by one county against another for recovery for

medical services rendered by plaintiff county to an indigent resident of defendant county.

The extension of hospital services by a county hospital to an indigent resident of another

county is governed by NRS 450.400 which provides as follows:

“1. When the privileges and use of the hospital are extended to a resident of another

county who is entitled under the laws of this state to relief, support, care, nursing, medicine,

medical or surgical aid from such other county, or to one who is injured, maimed or falls sick

in such other county, the governing head shall immediately notify the board of county

commissioners of such county.

“2. The notice shall be in writing and addressed to the board of county commissioners of

such county.

“3. The board of county commissioners receiving the notice shall cause such person to be

removed immediately to that county, and shall pay a reasonable sum to the hospital for the

temporary occupancy, care, nursing, medicine, and attendance, other than medical or surgical,

furnished such persons.

“4. If the board of county commissioners shall neglect or refuse to remove such person, or

if in the opinion of the attending physician it is not advisable to remove such person, the

governing head shall have a legal claim against the county, for all occupancy, nursing, care,

medicine, and attendance, other than medical or surgical attendance, necessarily furnished,

and may recover the same in a suit at law.” (Emphasis added.)

Subsection 4, above, clearly grants a legal claim which is recoverable in a suit at law. NRS

450.400 does not, by its ��) ��


terms, require compliance with the claim statutes. We conclude that such compliance was not

intended since NRS 450.400 was enacted subsequent to the claim statutes and quite

independently thereof.

Accordingly, the order granting respondents' motion to dismiss is reversed and the matter

is remanded for trial.


____________

��89 Nev. 146, 146 (1973) Innis v. Sheriff��

CHARLES D. INNIS, Appellant, v. SHERIFF,


No. 7271

April 12, 1973 508 P.2d 1017



Affirmed.

Thomas F. Kummer, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City, Roy A. Woofter, District Attorney, and Donald


OPINION

Per Curiam:

The identical issues raised in this appeal were considered and rejected in Cairns v. Sheriff,

89 Nev. 113, 508 P.2d 1015 (1973), decided March 29, 1973.

Affirmed.

____________

��89 Nev. 147, 147 (1973) Sahara Realty Corp. v. Adelson��

SAHARA REALTY CORP., dba SAHARA REALTY, a Nevada Corporation; GILBERT S.

SCHWARTZ; and EMANUEL SCHWARTZ, Appellants, v. MERVYN ADELSON, IRWIN

MOLASKY, MOE DALITZ, HARRY LAHR, ALLARD ROEN, BERNARD ROTHKOPF,

a co-Partnership dba STAR INVESTMENT CO.; and PARADISE HOMES, a Nevada

Corporation, Respondents.

No. 6843

April 13, 1973 508 P.2d 1210

Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.

Mendoza, Judge.

Action by real estate agents against property owners seeking to collect broker's

commission for their efforts to sell shopping center complex. The district court dismissed the

complaint, and plaintiffs appealed. The Supreme Court, Mowbray, J., held that where one

plaintiff who had nonexclusive, oral listing brought together owners and potential buyer, and

extensive negotiations took place between one owner and potential buyer, but where such

potential buyer never accepted proposed contract of sale which had been prepared by owner

pursuant to tentative, oral agreement to consummate the sale, plaintiffs did not qualify for

broker's commission.

Affirmed.

Jones, Jones, Close, Bilbray & Kaufman, of Las Vegas, for Appellants.

Lionel, Sawyer, Collins & Wartman, of Las Vegas, for Respondents.

1. Brokers. Where broker who had nonexclusive, oral listing brought together owners and potential buyer, and

extensive negotiations took place between one owner and potential buyer, but where such potential buyer

never accepted proposed contract of sale which had been prepared by owner pursuant to tentative, oral

agreement to consummate the sale, such broker did not qualify for broker's commission.

2. Brokers. Evidence was insufficient to support claim of real estate agents seeking broker's commission that

wrongful acts of the property ��


owners precluded consummation of sale or that the proposed sale was obstructed by an act of fraud or by

bad faith.

OPINION


Appellants, Las Vegas real estate agents, commenced this action in the district court to

collect a broker's commission for their efforts to sell the Commercial Center, a shopping area

complex located in Clark County. After a bench trial, the court dismissed the complaint.

In this appeal, several peripheral issues are presented; however, the central issue urged by

appellants is that they are entitled to a commission because “the wrongful acts of respondents

precluded appellants from consummating the sale.” We do not agree.

The record reflects that in December 1965 Gilbert Schwartz, one of the principals of

Sahara Realty Corp., obtained from Irwin Molasky, one of the partners who owned the

Commercial Center, an oral listing to sell the property for a stated price. Schwartz offered the

property to Jack Resnick of New York, who made an offer to buy. The offer was rejected by

Molasky. For the next 2 months there were numerous offers and counter offers to buy and sell

between Resnick and Molasky, and in early February 1966 they reached a tentative, oral

agreement to consummate the sale. It was understood that Molasky would have his California

counsel prepare a contract covering the sale and a proposed leaseback agreement. Thereafter,

on February 18, Molasky, Schwartz, and Resnick met in Las Vegas. At that meeting Molasky

delivered the proposed contract of sale and allied papers to Resnick, who took them to New

York for his attorney's approval. It was agreed that Resnick's attorney and Molasky's

accountant would meet in New York on February 23 to put the documents in final form. That

meeting did not take place. Molasky kept pressing Schwartz for some action on the sale, as

the respondents were in need of the cash down payment, and they wished to conclude the

sale, if Resnick wanted the property. Finally, on March 4, Molasky advised Schwartz that

something had to be done to complete the transaction. Schwartz replied to the effect, “First

come, first served.” That is precisely what happened, for on March 7 or 8 the respondents

commenced negotiations to sell the Center to a third party, and the sale was consummated on

March 22. It is true that Resnick on March 10 called Molasky and stated �� -��G��;��'�� K��


that he was coming to Las Vegas on March 18 to finalize the sale. Prior to that meeting,

however, Molasky advised Resnick that the property had been sold to another party and that

the Resnick sale was off.

In Engel v. Wilcox, 75 Nev. 323, 326, 340 P.2d 93, 94 (1959), this court, quoting Cochran

v. Ellsworth, 126 Cal. App.2d 429, 272 P.2d 904, 909 (1954), laid down the rule:

“ ‘Generally speaking, a real estate broker has earned his commission when he has brought

to the vendor a purchaser who is ready, willing and able to buy the property upon the terms

on which the agent is authorized to sell, or when a written contract upon any terms acceptable

to the seller has been entered into with a purchaser originally brought to the vendor by the

agent. Alison v. Chapman, 36 Cal.App. 759, 173 P. 389 [1918]. . . .' . . .” Cf. Nolan v. State

Dep't of Commerce, 86 Nev. 428, 470 P.2d 124 (1970). See also, DiGregorio v. Marcus, 86

Nev. 674, 677, 475 P.2d 97, 99 (1970), where we said: “The right of a real estate broker to

collect his fee is to be measured by the terms of his commission agreement.”

[Headnote 1]

In this case, the broker had a nonexclusive, oral listing to sell the respondents' property,

and nothing more. The broker at no time brought to the respondents a buyer who was ready,

willing and able to buy the Center. True, extensive negotiations took place between Molasky

and Resnick, but Resnick never accepted the written contract to sell the property that had

been submitted to him, and until he did so the appellants had failed to qualify for their

broker's commission.

[Headnote 2]

The record demonstrates, in fact, that at the proposed March 18 meeting Resnick was not

even then prepared to go forward and consummate the sale, as his attorney, Mr. Katz,

intended to negotiate, further, numerous matters upon which the sale of the property turned.

There is nothing in the record to support appellants' claim of “wrongful acts” or that the

proposed sale to Resnick was obstructed by an act of fraud, Ramezzano v. Avansino, 44 Nev.

72, 189 P. 681 (1920), or by bad faith, Humphrey v. Knobel, 78 Nev. 137, 369 P.2d 872

(1962).



____________

��89 Nev. 150, 150 (1973) Tacchino v. State ex rel. Dep't Hwys.��

ANDREA TACCHINO and MARIA TACCHINO, Husband and Wife, Reputed Owners of

Record, et al., Appellants, v. THE STATE OF NEVADA, on Relation of Its Department of

Highways, Respondent.

No. 6793

A. TACCHINO, Also Known as Andrea Tacchino, Reputed Owner of Record,

Appellant, v. THE STATE OF NEVADA, on Relation of its Department of Highways,

Respondent.

No. 6794

April 18, 1973 508 P.2d 1212

Appeal from judgments entered in two condemnation cases consolidated at trial and on

appeal. Second Judicial District Court, Washoe County; John W. Barrett, Judge.

Actions by State in eminent domain to condemn real estate. The district court entered

judgments and condemnees appealed. The Supreme Court, Thompson, C. J., held that where

condemnees, planning to subdivide property in industrial zone, had prepared tentative map

for subdivision into lots and had employed engineer-surveyor to prepare tentative plat which

had been approved by the Regional Planning Commission and final subdivision map had

received the approval of the Commission and city and streets had been cut and graded and

some sewers and storm drains installed, condemnees should have been permitted to show

value of the condemned property on a lot basis which would have established a higher market

value than that shown by evaluating the property as a whole.


[Rehearing denied June 12, 1973]

Zenoff and Batjer, JJ., dissented.

Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellants.

Robert List, Attorney General, and Melvin L. Beauchamp, Deputy Attorney General,

Assistant Counsel, Department of Highways, Carson City, for Respondent.

1. Eminent Domain. The word “just,” in constitutional provision requiring just compensation for private property taken for

public use, conveys the idea that the equivalent to be rendered for the property taken shall be real,

substantial, full and ample. Const. art. 1, § 8.


2. Eminent Domain. The constitutional command for the payment of just compensation for private property taken for public

use can be obeyed only by assuring the property owner that courts will receive all evidence fairly bearing

upon value.

3. Eminent Domain. Where condemnees, planning to subdivide property in industrial zone, had prepared tentative map for

subdivision into lots and had employed engineer-surveyor to prepare tentative plat which had been

approved by the Regional Planning Commission and final subdivision map had received the approval of the

Commission and city and streets had been cut and graded and some sewers and storm drains installed,

condemnees should have been permitted to show value of the condemned property on a lot basis which

would have established a higher market value than that shown by evaluating the property as a whole.

Const. art. 1, § 8.

4. Evidence. Qualified witness should be allowed to testify to the different factors which a well-informed buyer would

use in arriving at a price he would pay for land.

5. Eminent Domain. The potential income to be derived from sale of subdivided lots, properly discounted to show present

value, is a factor and relevant to a determination of market value.

OPINION


The State commenced separate actions in eminent domain to condemn property owned by

Andrea and Maria Tacchino. The actions were consolidated for trial and the jury returned its

verdict for $396,402.28 in one case, and for $182,976.98 in the other. By this appeal the

Tacchinos contend that the district court committed prejudicial error when, by pretrial order,

it precluded them from offering certain evidence bearing upon fair market value. In our view

the preclusive ruling should not have been made, and since it strikes the very heart of the

cases, we reverse the judgments and remand for a new trial. Other assigned errors need not be

considered.

The property to be condemned consists of all of Blocks “A” and “D” comprising 9.838

acres, and a portion of Block “E” comprising 4.205 acres, and is located within the Tacchino

Industrial Park. The property is zoned M-1 which is industrial type zoning and may be used

for almost any purpose except single family residences. The Tacchinos acquired the property

many years ago and used it as farm land. In 1953 they decided to subdivide their property and

contacted the Regional :��


Planning Commission and were assisted by one of its staff in the preparation of a tentative

map for subdividing the property into lots. An engineer-surveyor was then employed to

prepare a tentative plat of the subdivision showing boundaries, topography, streets, blocks

and lots. That plat was approved by the Regional Planning Commission in April 1954. A final

subdivision map was then prepared for recordation. It received the approval of the

Commission and the City of Reno and was filed with the County Recorder of Washoe County

on January 15, 1955. Streets have been cut and graded, and some sewers and storm drains

installed. The highest and best use of the property to be condemned is conceded to be for

industrial purposes.

The Tacchinos wished to show the value of the condemned property on a lot basis which

would have established a higher market value than that shown by evaluating the property as a

whole. That approach to the ascertainment of value was ruled out by the district court as to

speculative and conjectural. It is to this point that we address this opinion.

[Headnote 1]

1. Private property shall not be taken for public use without just compensation having

been first made or secured. Nev. Const. art. 1, § 8. The word “just” is used to intensify the

meaning of the word “compensation” and conveys the idea that the equivalent to be rendered

for the property taken shall be real, substantial, full and ample. Virginia and Truckee R. R.

Co. v. Henry, 8 Nev. 165, 171, 172 (1873); Urban Renewal Agency v. Iacometti, 79 Nev.

113, 128, 379 P.2d 466 (1963); Dep't of Highways v. Campbell, 80 Nev. 23, 32, 388 P.2d 733

(1964).

In line with this underlying concept we have ruled that prejudgment interest must be paid

to the condemnee when the taking occurs before judgment. Saunders v. State, 70 Nev. 480,

485, 273 P.2d 970 (1954). And, in State v. Shaddock, 75 Nev. 392, 398, 344 P.2d 191 (1959),

the court wrote: “In determining value and just compensation, evidence of the market value

of the property taken is properly received. This is conceded by both appellant and

respondents. That this is so does not preclude the court or jury from considering other

elements that can fairly enter into the question of value and which an ordinarily prudent

business man would consider before forming judgment in making a purchase.” The standard

just quoted was reaffirmed in Clark Co. School Dist. v. Mueller, 76 Nev. 11, 19, 348 P.2d

164 (1960), a case where the trial court received per-lot appraisal evidence of residential

property ��


concerning which preliminary engineering work had been done looking to a formal

subdivision.

[Headnote 2]

One inevitably must conclude that the constitutional command for the payment of just

compensation can be obeyed only by assuring the property owner that our courts will receive

all evidence fairly bearing upon value. 1

2. The State persuaded the district court that expert witnesses should not be permitted to

arrive at their opinions of the fair market value of the property by carving it up into lots,

estimating the value of each lot, and then estimating the value of all lots together. This,

because valuation must be based upon what a willing purchaser will pay for the whole at the

time of the taking and not on what a number of purchasers might be induced to pay in the

future for the land in small parcels.

There is solid support for this rule when the land is undeveloped and the subdivision is

imaginary or hypothetical. Department of Highways v. Schuloff, 445 P.2d 402 (Colo. 1968).

Indeed, some courts so limit expert testimony when the owner has had a subdivision plat

prepared or filed for record, or has been systematically developing the tract in parcels or

units. City of Caldwell v. Roark, 437 P.2d 615 (Idaho 1968), and Continental Development

Corporation v. State, 337 S.W.2d 371 (Tex.Civ.App. 1960), are illustrative.

[Headnote 3]

In our view, those cases and others from several jurisdictions applying the same rule,

improperly restrict and limit testimony of qualified appraisers, and are not compatible with

the conceptualistic expressions of our court in Virginia and Truckee R. R. Co. v. Henry, Dep't

of Highways v. Campbell, State v. Shaddock and Clark Co. School Dist. v. Mueller, to which

we have already referred.

____________________

1

In Almota Farmers Elevator & Whse. Co. v. U.S., 409 U.S. 470 (1973), the question was: “Whether, upon

condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market

value of its improvements without regard to the remaining term of its lease, because of the expectancy that the

lease would have been renewed.” Held: The concept of “just compensation” is measured by what a willing buyer

would have paid for the improvements, taking into account the possibility that the lease might be renewed as

well as that it might not. The Court of Appeals decision was reversed because it failed to recognize the

possibility of a renewal of the lease; a factor which a willing buyer would have considered.

Our Nevada decisions are, we think, in harmony with the philosophy of the Almota case.


[Headnotes 4, 5]

A qualified witness should be allowed to testify to the different factors which a

well-informed buyer would use in arriving at a price he would pay for the land. Iske v.

Metropolitan Utilities District of Omaha, 157 N.W.2d 887 (Neb. 1968). The potential income

to be derived from the sale of subdivided lots, properly discounted to show present value, is a

factor and relevant to a determination of market value, since sophisticated investors make

decisions on the basis of income capitalization. Dash v. State, 491 P.2d 1069 (Alaska 1971);

Iske v. Metropolitan Utilities District of Omaha, supra; In re Appropriation for Hwy.

Purposes of Lands, 239 N.E.2d 110 (Ohio App. 1968); State Highway Commission v. Lee,

485 P.2d 310 (Kan. 1971). The reasoning of these cases accommodates the constitutional

concept of just compensation and tends to assure the property owner that he will receive a full

and fair trial of that issue.


Mowbray and Gunderson, JJ., concur.

Zenoff, J., with whom Batjer, J., agrees, dissenting:

The property involved was best suited for industrial uses and had been divided into a

number of “blocks” for industrial subdivision purposes. During the trial the Tacchinos

presented evidence tending to show their intention to further subdivide the “blocks” into

“lots” and the initial steps taken in pursuance of that plan. They contend that they had an

active subdivision, that the use of their land for subdivision purposes was not remote or

speculative and that therefore evidence as to the number and value of the lots into which the

property could be divided is admissible. The Tacchinos readily admitted that industrial

property, such as theirs, is not conducive to being subdivided into equal lots because of the

varying requirements of prospective industrial purchasers. In light of this admission it is

curious that they now contend they should have been allowed to present evidence of valuation

based upon the number of lots into which the property could have been divided.

The Tacchinos, in spite of the order preventing such evidence, were somehow successful

in getting into evidence their Exhibit No. 2 which was a tentative plat prepared in 1953

showing a possible plan to develop the property and their Exhibit No. 3 which likewise was a

tentative plat. Both of these exhibits showed how the blocks in question could have been��


broken down into lots for purposes of the proposed subdivision. In addition there was much

testimony that smaller parcels command a greater price per square foot than larger parcels.

Evidence of the possible breakdown of the parcels into lots may be viewed as offered for

two possible purposes: (1) to show the adaptability of the land for subdivision use, or (2) to

assist the jury in arriving at the valuation of the condemned property.

1. When the land involved is readily adaptable to subdivision purposes that fact may be

taken into consideration in fixing its market value, City of Medina v. Cook, 418 P.2d 1020

(Wash. 1966), but the uses to which the land may thus be adapted must be reasonably

probable and not entirely remote or speculative. People ex rel. Dept. Pub. Wks. v. Silveira,

236 Cal.App.2d 604 (1965). If, however, as in this case, the parties agree as to the highest and

best uses to which the property is adaptable, such evidence is merely cumulative and could

create substantial danger of undue prejudice. People ex rel. Dept. Pub. Wks. v. Princess Park

Estates, Inc., 270 Cal. App.2d 876 (1969). In this case there is no dispute that the land is

adaptable and suitable for an industrial subdivision and evidence thereof was properly

excluded because the adaptability of the land for such use was not in issue. People v.

Chevalier, 340 P.2d 598, 604 (Cal. 1959); Lower Nueces River Water Supply District v.

Collins, 357 S.W.2d 449, 452 (Tex. 1962).

2. We feel the offered evidence was properly excluded if viewed as offered for the

purpose of assisting the jury in arriving at the valuation of the condemned property. Evidence

of what the owner might plan to do with his property is not to be considered by the jury as

enhancing its market value. Redwood City Elementary School Dist. v. Gregoire, 276 P.2d 78,

83 (Cal. 1954). The owners of the land sought to be condemned are entitled to recover the

value of the land at its highest and best use, but where the entire parcel of land is taken as a

unit as of the time the action is commenced the proper measure of compensation is what a

willing purchaser would be willing to pay for the parcel at the time of the taking, in its then

condition and not what a number of purchasers might, in the future, be induced to pay for the

land as divided into lots. Department of Highways v. Schulhoff, 445 P.2d 402 (Colo. 1968);

City of Caldwell v. Roark, 437 P.2d 615 (Ida. 1968). If such evidence were allowed, the jury

would be carried far too deeply into the realm of speculation. The jury is not to speculate as to�� K�� ) ��


the kind and number of prospective industrial purchasers or the size of the lots each might

require. Nor may it conjecture as to how the land could best be divided into building lots,

how fast they could be sold or at what price per lot. Lower Nueces River Water Supply

District v. Collins, supra.

Such improper speculation and conjecture by the jury was effectively prevented by the

preliminary order entered by the trial judge. The majority's bland idioms such as “[p]rivate

property shall not be taken for public use without just compensation having been first made

or secured” and “[i]n line with this underlying concept we have ruled that prejudgment

interest must be paid to the condemnee when the taking occurs before judgment” (citing

Saunders v. State, 70 Nev. 480, 485, 273 P.2d 970 (1954)) find no disagreement in us if they

are relevant to the main issue, but this case does not deal with prejudgment interest. It

concerns itself solely with the propriety of certain evidence of a proposed industrial

subdivision for its prospective value on a per lot basis, the admission of which amounts to

nothing more than outright speculation.

Our protest is founded on cases which even Dash v. State, 491 P.2d 1069 (Alaska 1971),

relied upon as authority by the majority, acknowledges as the weight of authority. See also 4

Nichols, Eminent Domain, Sec. 12.312[2] (rev. 3d. ed. 1971), referring to the cases

supporting our position as being the law of the overwhelming number of jurisdictions. The

majority relies on a small handful of cases which strike only a glancing blow to this issue. In

fact, of the Nevada cases referred to in the majority opinion none raised our problem as an

issue. In Clark County School Dist. v. Mueller, 76 Nev. 11, 19, 348 P.2d 164 (1960), while

per lot and per acre valuation were presented to the trial court the propriety of the evidence

was not contested.

Only Dash v. State, supra, from Alaska, can be called a true authority and in that case there

was an indication that the court had available as an aid in valuation some already subdivided

industrial property in the area immediately adjacent to the property in question. Justice Batjer

and I resist the departure of this court from a well-settled line of authorities that would keep

the complex problems of evaluation in condemnation cases within the bounds of

reasonableness.

For the foregoing reasons we would affirm the judgment of the trial court.

____________

��89 Nev. 157, 157 (1973) Whitaker v. Olsson��

FRANCES YVONNE WHITAKER, Appellant, v. HENRY T.

and RUBY I. OLSSON, Respondents.

No. 6940

April 18, 1973 508 P.2d 1014

Appeal from a judgment terminating parental rights; Second Judicial District Court,

Washoe County; John E. Gabrielli, Judge.

The Supreme Court held that substantial evidence supported the judgment.

Affirmed.

Charles Zeh, Washoe County Legal Aid Society, for Appellant.

Robert E. Rose, District Attorney, and William L. Hadley, Deputy District Attorney,

Washoe County, for Respondents.

Infants.

Where judgment terminating parental rights was supported by substantial evidence, reviewing court

was required to affirm.

OPINION

Per Curiam:

We are requested to annul a discretionary judgment of the district court terminating

parental rights. Since there is substantial evidence supporting that judgment, we must affirm.

Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970).

____________

��89 Nev. 157, 157 (1973) Jay Gee Commerce, Inc. v. Havas��

JAY GEE COMMERCE, INC., a Nevada Corporation, Appellant, v. VICTOR HAVAS,

Individually, and ACE HI, INC., a Nevada Corporation, Respondents.

No. 7039

April 20, 1973 508 P.2d 1015

Appeal from judgment for defendants in unlawful detainer action; Eighth Judicial District

Court, Clark County; William P. Compton, Judge.

��89 Nev. 157, 158 (1973) Jay Gee Commerce, Inc. v. Havas��

The Supreme Court held that exercise of lease renewal option was not accomplished by

lessee's writing the words “call me about the lease” on a telephone pad at lessor's office.

Reversed with directions.

[Rehearing denied May 9, 1973]

Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Appellant.

Raymond E. Sutton, of Las Vegas, for Respondents.

1. Landlord and Tenant. Although the written exercise of a lease renewal option need not be a formal document, the writing must

contain a concise statement of definite and unequivocal intent to exercise the option according to the terms

of the lease.

2. Landlord and Tenant. Exercise of lease renewal option was not accomplished by lessee's writing the words “call me about the

lease” on a telephone pad at lessor's office.

OPINION

Per Curiam:

In this unlawful detainer action the issue is whether the lessee effectively exercised its

option to renew a lease. The lease required the lessee to give written notice of renewal within

60 to 90 days prior to the lease termination date. The lessee contends that the option was

exercised by writing the words “call me about the lease” on a telephone pad at the lessor's

office.

[Headnotes 1, 2]

Although the written exercise of a lease renewal option need not be a formal document,

Marjer v. Layfmen, 53 A.2d 187 (N.J. Eq. 1947), the writing must contain a concise

statement of definite and unequivocal intent to exercise the renewal option according to the

terms of the lease. Robert v. E. C. Milstead Ranching Inc., 469 S.W.2d 429 (Tex.Civ.App.

1971); Jones v. Dexter, 292 P.2d 369 (Wash. 1956); United States v. 70.39 Acres of Land,

164 F.Supp. 451 (D.C.S.D. Calif. 1958). The phrase “call me about the lease” is not such a

statement.

The judgment below is reversed and the district court is directed to enter judgment

restoring the leased premises to the lessor. Other issues are to be tried anew unless that court

is satisfied that a proper determination can be made on the record before it.

____________

��89 Nev. 159, 159 (1973) Rhoads v. Sheriff��

GARY ORDELL RHOADS, Appellant, v. SHERIFF,


No. 7152

April 26, 1973 509 P.2d 287


Court, Clark County; James D. Santini, Judge.

The Supreme Court held that state met its burden at preliminary hearing of showing

probable cause that arson was committed and that defendant committed it.

Affirmed.

James L. Buchanan II, of Las Vegas, for Appellant.



Criminal Law.

State met its burden at preliminary hearing of showing probable cause that arson was committed and

that defendant committed it. NRS 171.206, 205.010.

OPINION

Per Curiam:

Appellant, charged with first degree arson, a felony under NRS 205.010, contends the trial

court erred in failing to grant habeas because there was insufficient evidence adduced at the

preliminary hearing to establish probable cause. The record before us reflects that the state

met its burden of showing probable cause that the offense was committed and that appellant

committed it. NRS 171.206. See O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956).

Affirmed.

____________

��89 Nev. 160, 160 (1973) Yeslinek v. Sheriff��

DONALD YESLINEK, Appellant, v. SHERIFF,


No. 7059

May 3, 1973 508 P.2d 1211

Appeal from an order denying habeas corpus, Eighth Judicial District Court, Clark County;

Howard W. Babcock, Judge.

Affirmed.

Alfred Becker, of Las Vegas, for Appellant.



OPINION

Per Curiam:

The order of the trial court which denied appellant's application for habeas corpus is

affirmed.

____________

��89 Nev. 160, 160 (1973) Sheriff v. Benson��

SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.

JOHNNY BENSON, Respondent.

No. 7028

May 9, 1973 509 P.2d 554

Appeal from a pre-trial order granting a writ of habeas corpus, Eighth Judicial District


The Supreme Court, Batjer, J., held that presence of a man with his sleeve rolled up with a

syringe in one hand and the bottle cap with a residue identifiable as heroin in the other was

sufficient to establish the necessary intent to possess controlled substance.

Reversed.


Leon Simon, Deputy District Attorney, Clark County, for Appellant.


Morgan D. Harris, Public Defender, and Brian L. Greenspun, Deputy Public Defender,

Clark County, for Respondent.

1. Drugs and Narcotics. The quantity of controlled substance to support intent necessary to establish crime of possession is vital

only in absence of other evidence of intent and when there is in record other evidence of intent to commit

an offense prohibited by statute then all that is needed to sustain a conviction is that amount of controlled

substance necessary for identification. NRS 193.190, 453.570.

2. Drugs and Narcotics. Where there is a total absence of other evidence to establish any intent to commit an offense prohibited

by statute relating to possession of controlled substances, then the intent necessary to establish crime of

possession does not exist if the amount of contraband is so minute as to be incapable of being applied to

any use even though chemical analysis may identify trace of narcotic. NRS 193.190, 453.570.

3. Drugs and Narcotics. Presence of a man with his sleeve rolled up with a syringe in one hand and the bottle cap with a residue

identifiable as heroin in the other was sufficient to establish the necessary intent to possess controlled

substance. NRS 193.190, 453.570.

OPINION


The respondent, Johnny Benson, successfully petitioned the district court for habeas

corpus and in this appeal the state's sole contention is that the trial court erred in its

interpretation of the law that was in effect at the time of the alleged offense.

At approximately 11:15 p.m. on February 4, 1972, Las Vegas police officer Eugene Jones,

accompanied by several other officers, made a routine check of the Friendly Liquor Store in

Las Vegas, Nevada. The record reveals that when Jones entered the store a man came out of

the ladies rest room. Upon seeing the police officers this man, who was well known to them,

attempted to make a hasty exit from the liquor store but was apprehended. Meanwhile officer

Jones, together with officer Mouliot, entered the ladies rest room. Upon entry they saw a man,

with one sleeve rolled up, and Benson, who was holding a syringe in one hand and a “very

small” black bottle cap, which contained a little cotton ball, in the other hand. The syringe

and bottle cap which were dropped to the floor, were confiscated by the officers and turned

over to Richard Renner, a police chemist. Benson was arrested and charged with the�� $%��!(@


possession of a controlled substance in violation of NRS ch. 453.

At the preliminary examination Renner, whose qualifications were stipulated, testified that

by pouring alcohol into the bottle cap he dissolved the residue caked therein and from the

tests made on the dissolved solution he was able to identify diacetylmorphine, commonly

known as heroin. At the conclusion of the preliminary examination Benson was ordered to

stand trial for the offense charged.

Benson argued at the habeas proceeding, and, again in this court, that he did not possess a

useable amount of the controlled substance and therefore the intent required by NRS 193.190

is lacking. The trial judge agreed and when the charges were dismissed ruled that “[t]he

holding of Watson v. State [88 Nev. 196, 495 P.2d 365 (1972)] . . . that the intent necessary

to commit the crime of possession does not exist where the amount is so minute as to be

incapable of any use even though chemical analysis may identify a trace of narcotics, has not

been altered by NRS 453.570, which legislates not to the amount necessary for intent, but as

to the amount necessary for the act of possession.”

Effective January 1, 1972, the Uniform Narcotic Drug Act, Stats. of Nev. 1937, ch. 23,

was supplanted by the Uniform Controlled Substances Act, Stats. of Nev. 1971, ch. 667, p.

1999 et seq. In Watson v. State, 88 Nev. 196, 495 P.2d 365 (1972) we construed the Uniform

Narcotic Drug Act, (repealed effective January 1, 1972) and held that “[t]he intent necessary

to establish the crime of possession simply does not exist when the amount [of contraband] is

so minute as to be incapable of being applied to any use, even though chemical analysis may

identify a trace of narcotics.” In Beutler v. State, 88 Nev. 707, 504 P.2d 699 (1972), we

applied the same rationale. However, in both Watson and Beutler the offenses charged

predated the enactment of Stats. of Nev. 1971, ch. 250, p. 359. 1 Here the charged offense

occurred February 4, 1972. The law applicable in this case provides that “[t]he amount of a

controlled substance needed to sustain a conviction of a person for an offense prohibited by

this chapter is

____________________

1

Stats. of Nev. 1971, ch. 250, p. 359, effective April 9, 1971, was codified as NRS 453.345 and made a part

of the Uniform Narcotic Drug Act. The enactment was recodified as NRS 453.570 and placed with the Uniform

Controlled Substances Act, effective January 1, 1972. Our opinions in Watson v. State, 88 Nev. 196, 495 P.2d

365 (1972), and Beutler v. State, 88 Nev. 707, 504 P.2d 699 (1972), noted the statutory �� changes.


that amount necessary for identification as a controlled substance by a witness qualified to

make such identification.” [Emphasis added] NRS 453.570.

“In every crime or public offense there must exist a union, or joint operation of act and

intention, . . .” NRS 193.190. In this case we need not decide if, pursuant to NRS 453.570,

the mere possession of an identifiable amount of contraband is sufficient to supply the intent

required by NRS 193.190.

[Headnotes 1-3]

The quantity of controlled substance to support the intent necessary to establish the crime

of possession is vital only in the absence of other evidence of intent. Watson v. State, supra

and Beutler v. State, supra. When there is present in the record other evidence of intent to

commit an offense prohibited by NRS ch. 453, then all that is needed to sustain a conviction

is that amount of controlled substance necessary for identification. Where there is a total

absence of other evidence to establish the intent to commit an offense prohibited by NRS ch.

453 then the rule announced in Watson is controlling. Here the presence of the man with his

sleeve rolled up and Benson there with a syringe in one hand and the bottle cap with a residue

identifiable as heroin in the other, is sufficient, to establish the necessary intent to support the

order of the magistrate to hold Benson for trial.

The trial court misapplied the rule of Watson. The order of the trial court dismissing the

charges against Johnny Benson is reversed.


____________

��89 Nev. 163, 163 (1973) Anstedt v. State��

RICHARD A. ANSTEDT, Appellant, v. STATE


No. 6945

May 14, 1973 509 P.2d 968

Appeal from judgment of conviction and sentence of the Second Judicial District Court,

Washoe County; Emile J. Gezelin, Judge.

The district court found defendant guilty of assault with a deadly weapon, and he appealed.

The Supreme Court, 6��8�� 1�� +�� 5�� 0��2


Gunderson, J., held that evidence which showed that defendant raised a knife and, voicing an

aggressive utterance, moved within one and one-half feet of his alleged victim, whereupon

defendant's friends intervened and pushed him away, justified jury determination that

defendant had proceeded beyond mere menace and had engaged in an actual effort to inflict

bodily harm; accordingly, the evidence was sufficient to establish an “assault.”

Affirmed.

Robert A. Grayson, of Carson City, for Appellant.

Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and

Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for

Respondent.

1. Assault and Battery. Mere menace is not enough to establish an assault; rather, there must be an effort to carry the intention

into execution. NRS 200.471.

2. Assault and Battery. Evidence which showed that defendant raised a knife and, voicing an aggressive utterance, moved within

one and one-half feet of his alleged victim, whereupon defendant's friends intervened and pushed him

away, justified jury determination that defendant had proceeded beyond mere menace and had engaged in

an actual effort to inflict bodily harm; accordingly, the evidence was sufficient to establish an “assault.”

NRS 200.471.

3. Criminal Law. On appeal, the issue is not whether the Supreme Court would have found defendant guilty, but whether

the jury properly could.

4. Criminal Law. Allegedly improper remarks of prosecutor directed primarily to two prosecution witnesses, to the effect

that the state's case would be weak if it had to rely only on them, where not prejudicial to defendant; in any

event, except on one occasion when an objection was properly overruled, defense counsel made no

objection whatever to the prosecutor's remarks and their assignment as error therefore would not be

considered on appeal.

OPINION


Appealing his conviction for the crime of assault with a deadly weapon as defined in NRS

200.471, appellant contends:

(1) that the evidence was as a matter of law insufficient to establish an “assault”; >&?�� 5��


(2) that remarks of the prosecutor during summation to the jury were improper and

prejudicial; and

(3) that the court erred in limiting cross-examination of a prosecution witness.

We affirm appellant's conviction and sentence.

[Headnote 1]

1. Under NRS 200.471, an “assault” is “an unlawful attempt, coupled with a present

ability, to commit a violent injury on the person of another.” As we said in Wilkerson v.

State, 87 Nev. 123, 482 P.2d 314 (1971): “Mere menace is not enough. There must be an

effort to carry the intention into execution.” Id. at 126.

[Headnotes 2, 3]

In this case, evidence showed that appellant raised a knife and, voicing an aggressive

utterance, moved within one and one-half feet of the alleged victim, whereupon defendant's

friends intervened and pushed him away. In our view, this evidence justified the jury in

determining that appellant had proceeded beyond mere menace, and had engaged in an actual

effort to inflict bodily harm. On appeal, the issue is not whether this court would have found

appellant guilty, but whether the jury properly could. Collins v. State, 87 Nev. 436, 488 P.2d

544 (1971); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).

[Headnote 4]

2. The assertedly improper remarks of the prosecutor were directed primarily to two

prosecution witnesses, Schultz and Adams, to the effect that the state's case would be weak if

it had to rely only on them. So far as we can perceive, these remarks cannot have prejudiced

appellant. In any event, except on one occasion, when the objection was properly overruled,

defense counsel made no objection whatever to the prosecutor's remarks, and their

assignment as error therefore will not be considered on appeal. Sorce v. State, 88 Nev. 350,

497 P.2d 902 (1972).

3. We perceive no prejudicial abuse of discretion in the trial court's action, limiting

cross-examination. Cf. Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972).

The judgment of conviction and sentence is affirmed.


____________

��89 Nev. 166, 166 (1973) Tertrou v. Sheriff��

CHIZUKO TERTROU, Appellant, v. SHERIFF,


No. 7127

May 14, 1973 509 P.2d 970



The Supreme Court, Batjer, J., held that fact that a portion of preliminary examination had

been conducted when indictment was returned neither invalidated nor proscribed the

indictment.

Affirmed.

Jerry J. Kaufman, of Las Vegas, for Appellant.



1. Indictment and Information. Felonies may be prosecuted by either indictment or information.

2. Constitutional Law. An accused who was proceeded against by indictment is not denied due process or equal protection.

3. Constitutional Law. To initiate a prosecution by indictment rather than by information does not violate due process.

4. Indictment and Information. Fact that a portion of preliminary examination had been conducted when indictment was returned neither

invalidated nor proscribed the indictment.

5. Homicide. In establishing corpus delicti of murder, fact of death and criminal agency of another responsible for the

death must be established.

6. Habeas Corpus. For indictment to withstand a challenge by habeas corpus, the sufficient legal evidence presented to grand

jury must show probable cause to believe that crime has been committed and probable cause to believe that

the person charged committed the crime. NRS 172.155.

7. Criminal Law. Once corpus delicti has been established by sufficient evidence, confessions and admissions may be

considered in determining probable cause to show that defendant was criminal agency causing death.


8. Criminal Law. Where fact of death was established, and there was ample independent evidence to establish criminal

agency, defendant's statements were admissible to establish her responsibility for the death. NRS

172.155.

OPINION


A criminal complaint was filed in the justice court charging the appellant with the murder

(NRS 200.010) of her 15 month old adopted daughter. While a preliminary examination was

in progress on April 6, 1972, the magistrate recessed it until April 17, 1972. On April 13,

1972, the grand jury indicted the appellant upon the charged offense. A pre-trial habeas

challenge to that indictment resulted in a remand to the grand jury. Thereafter, on June 29,

1972, a second indictment, again charging the identical offense, was returned by the grand

jury. Immediately thereafter the justice court proceedings were dismissed.

This appeal is from the denial of a pre-trial habeas challenge to the second indictment.

Appellant claims that the trial court should have granted habeas because (1) the grand jury

deprived her of due process by indicting her while a preliminary examination was in recess;

and (2) the state failed to prove the corpus delicti of the crime charged.

Shortly before 4:00 p.m. on February 2, 1972, Kenneth Bird, of the Las Vegas Fire

Department Rescue Squad, was dispatched to appellant's residence. He was met at the

entrance by the appellant who was holding the little girl in her arms and stated “my child isn't

breathing.”

An emergency resuscitator was applied but would not function until Bird removed a piece

of meat lodged in the child's throat. The machine then took over the “breathing” and the child

was subsequently removed to a hospital. Resuscitation failed and the child died.

During the time Bird was administering to the child the appellant stated that the child did

not like the highchair and that she was feeding the youngster on the sofa and while so doing,

the baby fell from the sofa and struck her head on the coffee table.

On February 11, 1972, Las Vegas police detective, Lt. John D. McCarthy, together with an

interpreter, [appellant is of oriental ancestry and the officer thought there might be a�� D�� ) ��; ��*� K��@'!�L��!@"�>� ""?�


language barrier] met the accused and recited the warning required by Miranda v. Arizona,

384 U.S. 436 (1966). Appellant acknowledged the warning, indicated that she understood her

rights, and declined to have an attorney present, or the use of the interpreter. She then

voluntarily gave the detective a detailed narrative of the events that led to the death of the

child. After restating her colloquy with Bird, she went on to say that after the child struck her

head on the coffee table that she took her to the bathroom and splashed cold water in her face.

Unable to revive the child she telephoned her doctor and was advised to call an ambulance.

The call for the ambulance was unsuccessful, but she was able to contact the fire department.

Then she stated that her prior story had not been entirely truthful and she admitted that she hit

the baby on the head with a “spoon” because it was not cooperating in the feeding. At this

stage the appellant began to cry and stated that the child was “fussy” and wouldn't eat and she

became angry, picked up the child and “I threw her very hard into the play pen . . . I didn't

mean to kill her.” She also related that previously, in a fall against the water heater, a couple

of the baby's front teeth were knocked out and that the baby had also received a slight grease

burn through an accident in the kitchen. These latter two injuries had been related to her

doctor. Earlier in the tragic day, appellant admitted that she had spanked the child with a

plastic ruler because it had pulled down some knitting.

The final witness before the grand jury was Dr. John Wallace Graham, the pathologist

who, on February 5, 1972, performed an autopsy on the body of the dead child. His external

examination revealed several contusions and abrasions on the forehead and nose and a bruise

on the upper back. Internally, he found a piece of food in the right lung. He testified that none

of the above findings related to the fatality. He found an “extensive hemorrhage” over the

right side of the brain and stated that the cause of death was a “cranial cerebral injury” which

could be caused by falling out of a one or two story window, or down a steep flight of stairs,

or by “slamming the head against a solid surface.” It was Dr. Graham's opinion that such a

severe injury could not have been caused by a fall from a couch to a coffee table. He also

found a healed fracture of the right base of the baby's skull.

We first consider appellant's challenge to the indictment.

[Headnotes 1-3]

1. It is the rule in this state that felonies may be prosecuted by either indictment

or information. An accused who is proceeded against by an indictment is not denied due

process or �)��


equal protection. Similarly, to initiate a prosecution by an information rather than an

indictment does not violate due process. Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015

(1973).

The question of whether an indictment could be returned, while a criminal complaint

covering the same offense was outstanding, was raised sua sponte by this court in Tellis v.

Sheriff, 85 Nev. 557, 459 P.2d 364 (1969). After considering the question we said “we find

no jurisdictional defect in such a dual proceeding in a criminal matter.” 85 Nev. at 561, 459

P.2d at 366.

[Headnote 4]

The fact that a portion of the preliminary examination had been conducted when the

indictment was returned neither invalidates nor proscribes the indictment. See Hall v. Sheriff,

86 Nev. 456, 470 P.2d 422 (1970), where we held that an indictment was permissible even

though an information had already been filed in the district court.

2. Having concluded that the indictment was permissible we now consider the challenge

to the sufficiency of the evidence adduced before the grand jury.

[Headnote 5]

The death of a human being may be brought about by any one of four means: (1) natural

causes; (2) accident; (3) suicide; or (4) criminal means. In establishing the corpus delicti of

murder two elements must be established: (1) the fact of death; and (2) the criminal agency of

another responsible for that death. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).

[Headnote 6]

For the indictment to withstand a challenge by habeas corpus the sufficient legal evidence

presented to the grand jury must show (1) probable cause to believe that a crime has been

committed, and (2) probable cause to believe that the person charged committed the crime.

NRS 172.155.

Here the fact of death is conceded by both parties. However, the appellant contends that

evidence is totally lacking to establish that the death was caused by the criminal agency of

another. Relying upon Azbill v. State, 84 Nev. 345, 440 P.2d 1014 (1968), and Hicks v.

Sheriff, 86 Nev. 67, 464 P.2d 462 (1970), the appellant contends there must be “sufficient

evidence to establish the corpus delicti independent of confessions and possibly admissions.”

Although the law is correctly stated by appellant, it is inapposite to the facts.


A similar argument was raised and rejected by us in Simpson v. Sheriff, 86 Nev. 803, 476

P.2d 957 (1970), where there was a total lack of independent medical evidence of traumatic

abuse that exists in this record. In Simpson we said: “Such a contention is not tenable where

the victim is a child one year of age, under the circumstances that existed here. At such age a

child is almost totally dependent upon the person having its care and custody, and what might

reasonably be found to be a natural cause of death in an adult can just as reasonably be found

to be . . . death by a criminal agency, where the victim is a child so dependent upon others.”

86 Nev. at 805-806, 476 P.2d at 958.

[Headnotes 7, 8]

Once the corpus delicti has been established by sufficient evidence, confessions and

admissions may be considered in determining probable cause to show that the defendant was

the criminal agency causing the death. In re Kelly, 28 Nev. 491, 83 P. 223 (1905). Here there

is ample independent evidence to establish the criminal agency. Appellant's statements were

admissible to establish her responsibility for the death.

Affirmed.


____________

��89 Nev. 170, 170 (1973) Thoma v. Gasper��

EARL H. THOMA and BARBARA E. THOMA, Husband and Wife, Appellants, v. AL

GASPER, BILL STREMMEL, TRANSAMERICAN INSURANCE AGENCY, INC., and

BILL STREMMEL MOTORS, INC., Respondents.

No. 6951

May 14, 1973 509 P.2d 967

Appeal from judgment notwithstanding verdict; Second Judicial District Court, Washoe

County; John W. Barrett, Judge.

Fraud and deceit action was brought against individual and corporate defendants. After

jury verdict for plaintiffs assessing damages against corporate defendants and finding in favor

of individual defendants the district court entered corporate defendants' motion for judgment

notwithstanding the verdict and the plaintiffs appealed. The Supreme Court held that where

claim for relief rested squarely on proposition that conduct of individual defendant agent

fixed his liability and that of his principals, the codefendant corporations, but jury was never��


advised that if agent was found not liable his principals must be absolved or that if agent was

found liable his principals must also be found liable, form of verdict submitted to jury

permitted the inconsistent conclusions that individual defendant was not liable but that

corporate defendants were liable, and case was remanded for new trial.


Erickson & Thorpe, of Reno, for Appellants.

Frank R. Petersen, of Reno, for Respondents.

Appeal and Error; Trial.

Where claim for relief rested squarely on proposition that conduct of individual defendant agent fixed

his liability and that of his principals, the codefendant corporations, but jury was never advised that if

agent was found not liable his principals must be absolved or that if agent was found liable his principals

must also be found liable, form of verdict submitted to jury permitted the inconsistent conclusions that

individual defendant was not liable but that corporate defendants were, and case was remanded for new

trial.

OPINION

Per Curiam:

This is a fraud and deceit action commenced by Earl H. Thoma and his wife, Barbara,

against Al Gasper individually and as agent for the other defendants, Bill Stremmel, Bill

Stremmel Motors, Inc., and Transamerican Insurance Agency, Inc.

A jury, upon conflicting evidence, found for the plaintiffs and assessed damages against

the corporate defendants, Bill Stremmel Motors, Inc., and Transamerican Insurance Agency,

Inc., but also found in favor of the individual defendants, Gasper and Stremmel.

Consequently, the corporate defendants moved for judgment notwithstanding the verdict on

the premise that liability could not be imposed upon them if their agent, Gasper, was absolved

from liability. The plaintiffs also filed a motion for judgment n.o.v. seeking judgment against

the individual defendants for the identical sums assessed against the corporate defendants.

The motion of the corporate defendants was granted. The motion of the plaintiffs was denied

as not timely filed. This appeal followed.

The plaintiffs' claim for relief rested squarely on the proposition that the conduct of the

agent, Gasper, fixed his liability as well as the liability of his principals and codefendants.

However, the jury was never advised that if Gasper was found not � ��


liable, his principals likewise must be absolved. Missouri, Kansas & Texas Railroad Co. v.

Stanley, 372 P.2d 852 (Okl. 1962). Neither was the jury instructed that if Gasper was found

liable, his principals also must be found liable. The form of verdict submitted to the jury

permitted the inconsistent conclusions which it reached. Since there is evidence to support

each conclusion, and since the jury obviously was confused as to the law, we set aside the

order entered upon the respective motions for judgment n.o.v. and remand for a new trial.

____________

��89 Nev. 172, 172 (1973) Zehring v. Piper Aircraft Corp.��

JOHN W. ZEHRING, AVIATION INSURANCE MANAGERS, INC., a Delaware

Corporation, and TRANSIT CASUALTY COMPANY, a Missouri Corporation, Appellants,

v. PIPER AIRCRAFT CORPORATION, a Pennsylvania Corporation, Respondent.

No. 6939

May 14, 1973 509 P.2d 825

Appeal from judgment dismissing complaint, and from order denying motion for new trial,

Eighth Judicial District Court, Clark County; Leonard I. Gang, Judge.

Suit involving aircraft accident. The district court entered judgment dismissing complaint

and denied motion for new trial, and appeal was taken. The Supreme Court held that trial

court's resolution in respondent's favor of conflict in evidence, as to whether an exhaust stack

defect caused the aircraft accident, was not clearly erroneous.

Affirmed.

Harry J. Mangrum, Jr., of Las Vegas, for Appellants.

Paul C. Parraguirre, of Las Vegas, for Respondent.

Appeal and Error.

Trial court's resolution in respondent's favor of conflict in evidence, as to whether an exhaust stack

defect caused the aircraft accident, was not clearly erroneous. NRCP 52(a).

OPINION

Per Curiam:

The evidence at trial was in conflict regarding whether an exhaust stack defect caused the

aircraft accident in question.

��89 Nev. 172, 173 (1973) Zehring v. Piper Aircraft Corp.��

The trial court resolved such conflict in respondent's favor. Since it is not clearly erroneous,

the judgment is affirmed. Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624

(1972); Sherman Gardens Co. v. Longley, 87 Nev. 558, 491 P.2d 48 (1971); NRCP 52(a).

____________

��89 Nev. 173, 173 (1973) York v. Board of Co. Comm'rs of Storey Co.��

IRENE YORK, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF

STOREY COUNTY; and GINO DEL CARLO, CLINT SALMON, and HENRY BLAND,

Members of the BOARD OF COUNTY COMMISSIONERS OF STOREY COUNTY,

Respondents.

No. 7037

May 14, 1973 509 P.2d 967

Appeal from judgment of the First Judicial District Court, Storey County, denying petition

for writ of mandamus; Frank B. Gregory, Judge.

The Supreme Court held that business for which applicant sought a license, i.e., a brothel,

was of a privileged nature, subject to discretionary control of board of county commissioners,

and absent a showing of bad faith, or an otherwise impermissible exercise of discretion by

board in denying application, mandamus was not available to applicant.

Affirmed.

Robert E. Berry, of Reno, for Appellant.

Virgil A. Bucchianeri, District Attorney, Storey County, for Respondents.

Mandamus.

Business for which applicant sought a license, i.e., a brothel, was of a privileged nature, subject to

discretionary control of board of county commissioners, and absent a showing of bad faith, or an

otherwise impermissible exercise of discretion by board in denying application, mandamus was not

available to applicant.

OPINION

Per Curiam:

Respondents denied appellant's application for a business license, which she sought in

order to operate a brothel. The �� +� ��

��89 Nev. 173, 174 (1973) York v. Board of Co. Comm'rs of Storey Co.��

contemplated business was at best, we think, of a privileged nature, subject to respondents'

discretionary control. After inquiry and investigation, they determined not to issue such a

license to the appellant. The record contains no showing of bad faith, or otherwise

impermissible exercise of discretion by the county board, and under such circumstances

mandamus is not available to the appellant. Douglas Co. Board v. Pederson, 78 Nev. 106, 369

P.2d 669 (1962); cf. State v. Curler, 26 Nev. at 356, 67 P. at 1077 (1902).

Affirmed.

____________

��89 Nev. 174, 174 (1973) City of N. Las Vegas v. Kornfield et al��

CITY OF NORTH LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v.

ROBERT KORNFIELD, GATEWAY ENTERPRISES, INC., BRENDA WILLIAMS and

BERNARD HAFT, Respondents.

No. 7316

May 14, 1973 509 P.2d 554

Appeal from an order granting a writ of habeas corpus; Eighth Judicial District Court,

Clark County; Leonard I. Gang, Judge.

Affirmed.

Carl E. Lovell, Jr., City Attorney, and Paul H. Schofield, Chief Deputy City Attorney,

North Las Vegas, for Appellant.

Henry R. Gordon, of Las Vegas, for Respondents.

OPINION

Per Curiam:

This appeal is without merit. The order of the district court is affirmed.

____________

��89 Nev. 175, 175 (1973) Jones v. Sheriff��

BENJAMIN DAVIS JONES, Jr., EDDIE LEE BAYMAN, Appellants, v. SHERIFF,

WASHOE COUNTY, NEVADA, Respondent.

No. 7303

May 14, 1973 509 P.2d 824

Appeal from a order denying pre-trial writ of habeas corpus, Second Judicial District

Court, Washoe County; Emile J. Gezelin, Judge.

Proceeding on pre-trial petition for habeas corpus by petitioners claiming right to be

admitted to bail. The district court denied the writ and petitioners appealed. The Supreme

Court held that petitioners charged with murder, robbery, and burglary were not entitled to be

admitted to bail as a matter of right on theory that only capital offenses were nonbailable and

because of proscription of death penalty capital offenses no longer exist.

Affirmed.

Seymour H. Patt, of Reno, for Jones, and Joseph Reynolds, of Reno, for Bayman, for

Appellants.

Robert List, Attorney General, Carson City, Robert E. Rose, District Attorney, and


Bail.

Petitioners charged with murder, robbery, and burglary were not entitled to be admitted to bail as a

matter of right on theory that only capital offenses were nonbailable and because of proscription of death

penalty capital offenses no longer exist. NRS 200.030, 200.380, 205.060.

OPINION

Per Curiam:

In a three count indictment returned by the Washoe County Grand Jury, appellants were

charged with murder (NRS 200.030), robbery (NRS 200.380) and burglary (NRS 205.060).

This appeal 1 is from an order denying their pre-trial petition for habeas relief in the district

court and their sole contention is, �� ,��6�� !/'�L��&@'�>� =&?��

____________________

1

In Bayman v. Sheriff, 89 Nev. 86, 506 P.2d 1259 (1973), we affirmed a district court order denying habeas

relief where the same parties challenged the grand jury indictment.

��89 Nev. 175, 176 (1973) Jones v. Sheriff��

that since the decision in Furman v. Georgia, 408 U.S. 238 (1972), they are, as a matter of

right, entitled to be admitted to bail.

The thrust of their argument is that only capital offenses were non-bailable and that since

Furman proscribes the imposition of the death penalty, capital offenses no longer exist. We

reject their contention. 2

People v. Anderson, 493 P.2d 880 (Cal. 1972), decided several months before Furman,

proscribed the imposition of the death penalty in California. The Anderson court, in

considering the effect of its decision on the question of bail said: “[t]he underlying gravity of

[capital] offenses endures and the determination of their gravity for the purpose of bail

continues unaffected by this decision . . . we hold they remain as offenses for which bail

should be denied . . . when the proof of guilt is evident or the presumption thereof great.” 493

P.2d at 900. Cf. State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948). We adopt the California

view and affirm the order of the trial court.

____________________

2

We are aware that such argument has been accepted in two jurisdictions. See Ex Parte Contella, 485 S.W.2d

910 (Tex.Crim.App. 1972), and Edinger v. Metzger, 290 N.E.2d 577 (Ohio App. 1972). We also note that it has

been rejected in several other jurisdictions. See State v. Flood, 269 So.2d 212 (La. 1972); Hudson v. McAdory,

268 So.2d 916 (Miss. 1972); Donaldson v. Sack, 265 So.2d 499 (Fla. 1972). See also, Commonwealth v.

Truesdale, 296 A.2d 829 (Pa. 1972), which holds that bail may be denied under certain circumstances and State

v. Johnson, 294 A.2d. 245 (N.J. 1972), where the amount of bail may be increased in more serious cases. Cf.

People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo. 1972).

____________

��89 Nev. 176, 176 (1973) Weinstein v. Sheriff��

JACK WEINSTEIN, Appellant, v. SHERIFF, CLARK


No. 7084

May 21, 1973 509 P.2d 825

Appeal from an order denying pre-trial habeas corpus, Eighth Judicial District Court,

Clark County; Howard W. Babcock, Judge.

Affirmed.

James L. Buchanan, II, of Las Vegas, for Appellant.

��89 Nev. 176, 177 (1973) Weinstein v. Sheriff��



OPINION

Per Curiam:

This appeal from the denial of pre-trial habeas relief challenges the sufficiency and validity

of the evidence on which the grand jury indicted appellant for the fraudulent use of credit

cards in violation of NRS 205.760. The challenge is without merit.

Affirmed.

____________

��89 Nev. 177, 177 (1973) McCabe v. Pearson��

MARGUERITE L. McCABE and MARY ANN SMITH, Appellants,

v. MARY JANE PEARSON, Executrix, et al., Respondents.

No. 6805

May 30, 1973 510 P.2d 875

Appeal from judgment dismissing petition of contestants to revoke the probate of a will;

Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.

Will contest by two disfavored daughters of testatrix. The district court entered judgment

dismissing petition of contestants to revoke probate of the will, and they appealed. The

Supreme Court, Thompson, C. J., held that substantial evidence sustained findings that

decedent was competent to execute her last will, and that it was neither the product of fraud

nor undue influence.

Affirmed.

Pursel & Pursel, of Las Vegas, and John E. McHugh, Jr., of Hawthorne, California, for

Appellants.

Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents.

1. Wills. Substantial evidence sustained findings that decedent was competent to execute her last will, and that it

was neither the product of fraud nor undue influence.


2. Appeal And Error. Where offer of proof was not tendered in regard to certain conversations with a decedent, new trial would

not be granted on basis of wrongful exclusion of such testimony under statute enacted before judgment

providing that conversations with a deceased person are admissible if supported by corroborative evidence.

NRS 48.064.

OPINION


By her Last Will, Edna Irene Fossler gave $1,000 to each of her daughters, Marguerite

McCabe and Mary Ann Smith, and the balance of her estate worth more than $100,000 to her

daughter, Mary Jane Pearson, whom she also named executrix. After the will was admitted to

probate the disfavored daughters contested the same and sought to revoke the probate thereof.

NRS 137.080. They alleged that their mother was incompetent to execute the will, and also,

that she was induced to execute the same by reason of fraud and undue influence. The district

court dismissed the contest and this appeal followed.

[Headnote 1]

1. Although the appellants contend otherwise, there is substantial evidence to support the

findings of the trial court that Edna Fossler was competent to execute her Last Will, and that

it was neither the product of fraud nor undue influence. Consequently, we deny this claim of

error peremptorily.

[Headnote 2]

2. During the trial the contestants attempted to offer evidence of conversations with their

mother. Objection thereto was made on the basis of NRS 48.010 which precluded such

testimony “when the other party to the transaction is dead.” Cf. In Re Golding's Estate, 58

Nev. 274, 76 P.2d 1099 (1938). The court sustained the objection. After the contest had been

fully tried and but one day before the court made its findings of fact and entered judgment,

NRS 48.010 was repealed and NRS 48.064 took its place. The new law provides that

“transactions or conversations with or actions of a deceased person are admissible if

supported by corroborative evidence.” 1 This change of law was not called to the attention of

the trial court before it entered judgment or at any time ��

____________________

1

The new law became effective July 1, 1971. Judgment below was entered July 2, 1971.


thereafter. We are asked to set aside the judgment and remand for a new trial because of the

new law.

The same problem was considered in Staudter v. Elter, 166 A.2d 394 (Sup.Ct.N.J. 1960),

which we cited in Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307 (1972). Since the change

involved only the admissibility of evidence and did not create new rights or affect vested

ones, the court ruled that the new law controlled appellate disposition. We agree with that

general proposition. In Staudter, however, the appellant made a record for appellate review by

submitting an offer of proof to the trial court. Consequently, the appellate court was able to

evaluate the excluded evidence in the light of the record as a whole. Such an offer of proof

was not tendered in the matter at hand and we choose not to speculate as to the possible

weight such unknown testimony may have carried had the trial court received it. NRCP 43(c);

Eikelberger v. State ex rel. Dep't Hwys., 83 Nev. 306, 310, 429 P.2d 555 (1967); Foreman v.

Ver Brugghen, 81 Nev. 86, 90, 398 P.2d 993 (1965); Charleston Hill v. Clough, 79 Nev. 182,

190, 380 P.2d 458 (1963); Alamo Airways, Inc., v. Benum, 78 Nev. 384, 391, 374 P.2d 684

(1962). We, therefore, deny this claim of error.

3. Other assigned errors are without merit.


____________

��89 Nev. 179, 179 (1973) Pearson v. Clucas��

STEPHEN MARK PEARSON and ALLSTATE INSURANCE

COMPANY, Appellants, v. FRANK CLUCAS, Respondent.

No. 6962

May 30, 1973 510 P.2d 629

Appeal from summary judgment for defendant. Eighth Judicial District Court, Clark

County; Carl J. Christensen, Judge.

Action to recover compensation for damage to automobile, wherein defendant

counterclaimed for damages in form of attorneys' fees necessarily incurred. The plaintiffs

offered to dismiss their complaint with prejudice and to pay costs incurred by defendant who

did not accept the offer. The district court entered summary judgment for defendant and

awarded attorneys' fees in form of damages, and plaintiffs appealed. The�� 1��+�� 0��2��

��89 Nev. 179, 180 (1973) Pearson v. Clucas��

plaintiffs-appellants' contention, the “offer of judgment” rule, preclude the award to

defendant.

Affirmed.

Robert K. Dorsey, of Las Vegas, for Appellants.

Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent.

Damages.

Where plaintiffs, realizing that defendant was not liable as matter of law, offered to dismiss their

complaint with prejudice and to pay costs incurred by defendant, the “offer of judgment” rule did not

preclude attorneys' fees in form of damages from being awarded to defendant. NRCP 68.

OPINION

Per Curiam:

Pearson, as subrogor, and Allstate Insurance, as subrogee, commenced a spurious action

against Frank Clucas to recover compensation for damage to an automobile. Clucas was

forced to defend or suffer default. He engaged attorneys to represent him who filed an answer

pointing out that he was not liable as a matter of law, and counterclaimed for damages in the

form of attorneys' fees necessarily incurred. American Fed. Musicians v. Reno's Riverside, 86

Nev. 695, 699, 475 P.2d 220 (1970).

Realizing that Clucas was not liable, the plaintiffs then offered to dismiss their complaint

with prejudice and to pay the costs incurred by Clucas. That offer was not accepted.

Subsequently, summary judgment was entered for Clucas and attorneys' fees in the form of

damages awarded. Contrary to plaintiffs-appellants' contention, the “offer of judgment” rule,

NRCP 68, does not preclude that award.

Affirmed.

____________

��89 Nev. 180, 180 (1973) Harrison v. Rice��

ED HARRISON, Appellant, v. JACK and GUITHRUN

RICE, Respondents.

No. 6932

May 30, 1973 510 P.2d 633

Appeal from summary judgment for defendant Guithrun Rice, and from involuntary

dismissal with prejudice in favor of defendant Jack Rice; Eighth Judicial District Court, Clark

County; William P. Compton and Michael J. Wendell, Judges.


California resident brought suit in equity against other California residents for specific

performance of an agreement in form of escrow instructions prepared and signed in California

for sale of a mobile home park in Nevada. The district court applied California law requiring

wife to join husband in sale of community property and granted summary judgment to

defendant wife, who had not joined in execution of escrow instructions, and thereafter

dismissed case against defendant husband with prejudice at close of plaintiff's case, and

plaintiff appealed. The Supreme Court, Thompson, C. J., held that plaintiff was seeking to

compel recognition of his equitable right in the land itself, and Nevada law, which did not

require wife to join in execution of instrument by which community property was sold, rather

than California law, governed the case.

Reversed in each instance and remanded for trial.

Anthony Earl, of Las Vegas, for Appellant.

John Peter Lee, of Las Vegas, for Respondents.

1. Contracts. Generally, if a contract creating a title interest is made in one state concerning land in another, its validity

is to be governed by the law of the state where the land is located, especially if theory of plaintiff's case is

to enforce an equitable right in the land itself, but if theory of the case is not to enforce an equitable right in

land itself, the controlling law will be that which governs a contract as a contract.

2. Conversion. An equitable conversion occurs when a contract for sale of real property becomes binding upon the

parties; the purchaser is deemed to be equitable owner of land and vendor is considered to be owner of

purchase price.

3. Husband and Wife. Where California resident brought Nevada suit against other California residents for specific performance

of an alleged executory contract in form of escrow instructions prepared and signed in California for sale of

real property in Nevada, plaintiff was seeking to compel recognition of his equitable right in the land itself,

and Nevada law, which did not require wife to join in execution of instrument by which community

property was sold, rather than California law, which did require such joinder, governed the case. NRS

123.230; Cal.Civ.Code § 172a.

4. Husband and Wife. Where vested rights and liabilities would be involved if escrow instructions governing sale of community

property were found to constitute a contract, statutory amendment, effective as of July 1, 1973, which

required both husband and wife to join in conveyance of community property, would not control upon

retrial of case ��8�� =@�� +�� ) �� 18�� =@��


after July 1, 1973, following remand of plaintiff's suit in equity for specific performance of pre-July 1,

1973, agreement in form of escrow instructions for sale of property. NRS 123.230.

OPINION


This is a suit in equity for specific performance of an agreement in the form of escrow

instructions to sell a mobile home park located in Clark County, Nevada. The property is

owned by Jack and Guithrun Rice, husband and wife, as community property. Jack Rice

signed the escrow instructions as did Ed Harrison who wishes to purchase the property.

Guithrun Rice did not sign. Harrison and the Rices are California residents. The escrow is

Continental Title Co. of Fresno, California. That company prepared escrow instructions for

the sale and purchase at the direction of Jack Rice. When the Rices refused to consummate

the sale, Harrison commenced this suit in the Eighth Judicial District Court of Nevada.

Sometime before trial, the defendant wife presented a motion for summary judgment on

the ground that California law requires her to join with her husband in the execution of any

instrument by which community real property, or any interest therein, is sold. 1 Under

Nevada law the wife's joinder is not required. 2 It was the wife's contention that since all

parties are residents of California, the escrow instructions were prepared in that state, signed

there, and were in the main, to be performed in that jurisdiction, California law must govern

the resolution of this dispute. Harrison contended that Nevada law should control since the

land is within this state. The district court granted the wife's motion.

____________________

1

Cal. Civil Code § 172(a): “The husband has the management and control of the community real property,

but the wife, either personally or by duly authorized agent, must join with him in executing any instrument by

which such community real property or any interest therein is leased for a longer period than one year, or is sold,

conveyed or encumbered. . . .”

2

NRS 123.230: “The husband shall have the entire management and control of the community property, with

a like absolute power of disposition thereof, except as provided in this chapter, as of his own separate estate; . .

.”

Nixon v. Brown, 46 Nev. 439, 214 P. 524 (1923), concerning a voluntary gift of community real property by

the husband which the wife did not sign, nor consent thereto.


Thereafter, the case proceeded to trial against her husband and was dismissed with

prejudice at the close of the plaintiff's case. The court reasoned that specific performance was

impossible since the co-owner wife possessed a judgment in her favor and could not be

compelled to execute required documents. 3

It is apparent that the merits of the controversy were never reached since the lower court

believed that the mentioned California law barred relief under any circumstances. We,

therefore, limit this opinion solely to the choice of law issue.

[Headnote 1]

1. As a general proposition, if a contract creating a title interest is made in one state

concerning land in another, its validity is to be governed by the law of the state where the

land is located, especially if the theory of the plaintiff's case is to enforce an equitable right in

the land itself. Meylink v. Rhea, 98 N.W. 779 (Iowa 1904); Kryger v. Wilson, 242 U.S. 171

(1916); Hotel Woodward Co. v. Ford Motor Co., 258 F. 322 (2nd Cir. 1919). 4 On the other

hand, if the theory of the case is not to enforce a equitable right in the land itself, the

controlling law will be that which governs a contract as a contract. Davis v. Jouganatos, 81

Nev. 333, 339, 402 P.2d 985 (1965).

It is sometimes difficult to ascertain whether a particular action is upon an in personam

chose in action, or upon an asserted right in the land created by the same instrument. Once

that determination is made the choice of law issue falls into proper context and its resolution

is reasonably predictable.

[Headnote 2]

2. An equitable conversion occurs when a contract for the sale of real property becomes

binding upon the parties. The purchaser is deemed to be the equitable owner of the land and

the seller is considered to be the owner of the purchase price. This, because of the maxim that

equity considers as done that which was agreed to be done. Panushka v. Panushka, 349 P.2d

450 (Ore. 1960); Shay v. Penrose, 185 N.E.2d 218 (Ill. 1962); Parr-Richmond Industrial

Corp. v. Boyd, 272 P.2d 16 (Cal. 1954); In re Wiley's Estate, 36 N.W.2d 483 (Neb. 1949).

____________________

3

The wife's pretrial motion for summary judgment and the later trial were before different judges of the

Eighth Judicial District Court.

4

In announcing the rule, the federal cases of Kryger and Hotel Woodward, supra, acknowledged that the

choice of law issue is to be controlled by the state law of the forum.


[Headnote 3]

This action was brought to specifically enforce an alleged executory contract for the sale of

real property. It is evident that the plaintiff seeks to compel recognition of his equitable right

in the land itself and that Nevada law should govern this case.

We express no opinion as to whether an executory contract was in fact made, nor do we

otherwise consider the merits of this litigation. Those questions are to be resolved in the first

instance by the trial court in the light of applicable Nevada law.

[Headnote 4]

We reverse the summary judgment for the defendant Guithrun Rice and the dismissal with

prejudice in favor of the defendant Jack Rice, and remand this cause for a new trial. 5


____________________

5

The 1973 Legislature amended NRS 123.230 to provide that no deed of conveyance or mortgage of any real

property held as community property shall be valid for any purpose whatever unless both the husband and the

wife execute and acknowledge the same, except that either, by written power of attorney, may give the other the

complete power to sell, convey or encumber any real property held as community property. The amendment is

effective July 1, 1973.

Although the retrial of this case probably will come after July 1, 1973, the amendment will not control since

vested rights and liabilities are involved if, indeed, the escrow instructions are found to constitute a contract.

Milliken v. Sloat, 1 Nev. 573 (1865); Virden v. Smith, 46 Nev. 208, 210 P. 129 (1922); Cf. Holloway v. Barrett,

87 Nev. 385, 487 P.2d 501 (1971). In such circumstances the new law is not to be retrospectively applied. Cf.

Staudter v. Elter, 166 A.2d 394 (N.J. 1960), cited in Weaks v. Mounter, 88 Nev. 125, 493 P.2d 1307 (1972),

where the change of law concerned procedure and did not affect vested rights.

____________

��89 Nev. 184, 184 (1973) Southdown, Inc. v. McGinnis��

SOUTHDOWN, INC., a Louisiana Corporation, Appellant and Cross-Respondent, v.

CLARA L. McGINNIS, et al., Respondents and Cross-Appellants.

No. 6991

May 30, 1973 510 P.2d 636

Appeal and cross-appeal from a judgment confirming appraisal and denying pre-judgment

interest; Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.

Dissenting stockholders filed petition to have appraisers ��


appointed to determine fair cash value of each share of stock owned and held by them in

merged corporation. The district court confirmed appraisal and denied pre-judgment interest,

and appeal and cross-appeal were taken. On the main appeal, the Supreme Court, Thompson,

C. J., held that fact that surviving corporation, which had assumed control prior to merger,

ceased paying dividends several months prior to merger did not work to diminish intrinsic

value of dissenter's shares where capacity to pay dividends still existed. On cross-appeal, the

Supreme Court, Gunderson, J., held that dissenting minority shareholders were entitled to

pre-judgment interest on fair cash value of their stock interest from date they were taken by

merger.

Appeal, affirmed. Cross-appeal, reversed.

Thompson, C. J., and Mowbray, J., dissented on cross-appeal.


Baker & Botts, and Alvin M. Owsley, Jr., of Houston, Texas, and Foley Brothers, of Las

Vegas, for Appellant and Cross-Respondent.

Coleman & O'Connell, of Los Angeles, California, Lionel Sawyer Collins & Wartman, and

McNamee, McNamee & Rittenhouse, of Las Vegas, for Respondents and Cross-Appellants.

1. Corporations. Report rendered by appraisers assigned to value dissenting shareholders' interests on corporate merger

was not subject to objection that it failed to assign specific weights to the three elements of valuation, that

is, market, cost and income elements or approaches to value where proposed instruction requiring

appraisers to weigh each element was rejected in favor of charge, as approved by both parties, requiring

appraisers to detail factors considered in reasoning leading to conclusion of valuation. NRS

78.507-78.510.

2. Corporations. When reviewing court confirmation of report appraising value of a dissenting shareholder's stock on

corporate merger, findings of the appraisers are not to be disturbed unless clearly wrong. NRS

78.507-78.510.

3. Corporations. Words “fair cash value,” as used in statute providing for recovery of fair cash value by shareholders

dissenting from corporate merger, mean the intrinsic value of dissenting shareholder's interest determined

from the assets and liabilities of the corporation considered in the light of every factor bearing on value.

NRS 78.510.


4. Corporations. Fact that several months prior to merger the surviving corporation, which had assumed direction and

control of the assumed corporations, elected to cease payment of annual dividends on assumed

corporation's common stock did not require appraisers to conclude that termination of dividend payments

worked to diminish intrinsic value of dissenting shareholder's holdings where capacity to pay dividends had

not diminished. NRS 78.057, 78.510.

5. Corporations. Report rendered by appraisers assigned to value dissenting shareholder's interest on merger was not

unreliable, for failure to consider and give effect to market price of stock of assumed corporation and its

two closely held subsidiaries, where there was neither an active nor public market in stock of assumed

corporation or subsidiaries and shortly prior to merger surviving corporation, which had controlling

interest, issued a no-dividend policy; appraisers, which adopted hypothetical market price, were not

required to value dissenter's shares by reference to market price of survivor's shares, which at time of

merger was depressed below price at which notes received by certain selling stockholders could be

converted.

6. Corporations. When stock of a merged corporation has not been actively traded the appraisers, in valuing a dissenting

shareholder's interest by use of the “willing-seller willing-buyer” standard, may adopt a hypothetical market

price, allowing consideration of all relevant factors bearing on value; such standard may involve a

comparison of the merged corporation to similar corporations whose stocks are actively traded. NRS

78.507, 78.510.

On Cross-Appeal

7. Interest. Dissenting minority shareholders were entitled to pre-judgment interest on fair cash value of their stock

interest from date they were taken by merger, since it was at that point in time that they achieved creditor

status; fact that amount due was not yet judicially determined was immaterial. NRS 78.515, subd. 1,

99.040, subd. 1.

OPINION


Clara L. McGinnis, et al., the dissident stockholders of C. Leonardt Improvement

Company (CLI) who hold 581 common shares of the stock of that company, filed a petition

with the district court to have appraisers appointed to determine the fair cash value of each

share of stock owned and held by them in CLI. 1 Three appraisers were appointed, and an��

____________________

1

NRS 78.507. “If all of the stock of a subsidiary Nevada corporation party to a merger effected under NRS

78.486 is not owned by the parent corporation immediately prior to the merger, the surviving corporation shall,

within 10 days after the effective date of the merger, notify each stockholder of such Nevada corporation that the

merger


appraisal report was filed with the court which it confirmed. It was the opinion of the

appraisers that the fair cash value of each $100 par value common share of CLI, as of

November 18, 1970, was $12,650 and that the fair cash value of the 581 common shares

owned by Clara L. McGinnis, et al. on that date was, therefore, $7,349,650. Judgment was

entered accordingly. Pre-judgment interest was denied. Southdown, Inc., has appealed,

challenging the court's confirmation of the valuation of the appraisers. Clara L. McGinnis, et

al. have cross-appealed contending that the district court committed error in denying

pre-judgment interest.

____________________

has become effective. The notice shall be sent by certified or registered mail, return receipt requested, addressed

to the stockholder at his address as it appears on the records of the corporation. Any such stockholder may,

within 20 days after the date of mailing of the notice, demand in writing from the surviving corporation payment

of the value of his stock exclusive of any element of value arising from the expectation or accomplishment of the

merger.”

NRS 78.510. “1. If within 30 days after the date written demand is served upon the surviving or

consolidated corporation, the stockholder and the surviving or consolidated corporation fail to come to an

agreement as to the fair cash value of the shares, the stockholder, provided he has complied with the conditions

set forth in NRS 78.505 or 78.507, may appeal by petition to the district court of the county in which the

principal office of the surviving or consolidated corporation is located, if such corporation is a corporation

organized under the laws of this state, or to the second judicial district court of this state, if such corporation is a

corporation organized under the laws of any state other than the laws of this state or under the laws of any

foreign country, to appoint three appraisers to appraise the fair cash value of such stockholder's shares.

“2. The appraisers shall proceed forthwith to determine the fair cash value per share of the stock, and the

appraisers, or a majority of them, shall make a report within the time fixed by the court and shall file the report

in court. The report of the appraisers as to the fair cash value of the shares, if not opposed within 10 days after

the report shall have been filed in court, shall be confirmed by the court, and when confirmed shall be final and

conclusive; but if the report is opposed, the opposition shall be tried summarily and judgment rendered thereon

by the court.

“3. If the appraisers or a majority of them fail to make and file a report within 10 days, or within such further

time as may be allowed by the court, the court shall determine the fair cash value of the shares and render

judgment therefor.

“4. The costs of the proceeding, including reasonable compensation to the appraisers to be fixed by the

court, shall be assessed or apportioned, as the court may consider equitable, but if the appraisal exceed the price

offered by the surviving or consolidated corporation, the corporation shall pay such costs.

“5. Any party shall have the right to appeal according to existing laws and rules of court, provided the

appeal be taken within 10 days after the signing of the judgment.”


Southdown, Inc., the appellant and cross-respondent, is the successor corporation to CLI

by reason of two corporate mergers. Southdown is a publicly held Louisiana corporation

based in Houston, Texas. By February of 1970 it had acquired control of CLI and two of

CLI's closely held subsidiary companies, Southwestern Cement Associates (SWCA) and

Southwestern Portland Cement Company (SWPCC). 2

In November 1970, Southdown incorporated 1034 Wilshire Corporation, a Nevada

corporation, with an authorized capital of 1000 outstanding shares of common stock. It was

proposed that the 1034 Wilshire Corporation be merged into CLI through an exchange of

common stock. This merger was effected on November 19, 1970. Thereafter, on December 4,

1970, CLI was merged into Southdown.

The proposed exchange of common stock between 1034 Wilshire Corporation and CLI

was refused by Clara L. McGinnis, et al. representing 581 common shares on the ground that

it was not a fair offer for their stockholdings in CLI. On January 9, 1971, Southdown offered

McGinnis, et al. $7,725 per share for the 581 common shares, which offer was refused, and

this proceeding ensued.

On the day prior to the merger of 1034 Wilshire into CLl, that is, on November 18, 1970,

Southdown owned 1530 common shares of CLI or 58.84 percent of the total, McGinnis, et al.

owned 581 shares or 22.34 percent of the total, and others owned 489 shares or 18.82 percent

of the total. The court instructed the appraisers to value the CLI stock as of that date. That

date was selected in order to avoid any element of value arising from expectation of the

merger. NRS 78.505.

The court's instructions to the appraisers, approved by counsel for the respective parties,

advised that (a) fair cash value is the amount of money at which property (shares of capital

stock) would most probably exchange between a buyer, willing to buy, and a seller, willing to

sell, both buyer and seller being fully knowledgeable about the enterprise but under no

compulsion to buy or sell, and both buyer and seller contemplating the retention of all

facilities involved at their present locations for a continuation as a part of the existing

business enterprise (b) the basic concept of the appraisal is �� >�?�� #��

____________________

2

CLI was a privately owned holding company with investment interests in marketable securities, real estate

and two closely held subsidiary companies, SWCA and SWPCC. CLI had a direct 12.12 percent interest in the

latter company and through its direct 80 percent interest in the former, had a total 55.92 percent effective interest

in the common stock of SWPCC.


that the dissenting stockholders are to be paid for that which has been taken from them, that

is, their proportionate interest in a going concern and (c) the appraisers were to consider and

weigh as they deem fit in their expert opinion, all factors which bear upon fair cash value as

defined by the court.

The appraisers utilized the three commonly recognized approaches for developing fair

cash value, the market, cost, and income methods. The market approach produces an estimate

of value of property by comparing it with similar properties of the same character which have

been sold recently or are currently offered for sale in the same or competing areas. The cost

approach develops the cost to acquire in like kind or replacement in like utility the property of

replaceable character discounted for all factors that affect value, as physical deterioration,

functional and economic obsolescence, and to which is added the value of the land. The

income approach concerns itself with the present worth of the future benefits of a property.

This is generally measured by net income which is capitalized to an estimate of value.

The appraisers' task was a large one. As already indicated, CLI's principal assets included

investment in marketable securities, two closely held subsidiary companies (SWCA and

SWPCC), and real estate consisting of a shopping center in Sunnyvale, California. Except for

the shopping center rental income, most of its income was derived from dividends.

Southwestern Cement Associates (SWCA) owned no real estate or any other assets except

for its investment in Southwestern Portland Cement Company. Its income was derived from

dividends from that investment.

Southwestern Portland Cement Company is a closely held West Virginia corporation,

owning quarries and manufacturing facilities in California, Ohio and Texas for the production

and marketing of cement. SWPCC also owned two subsidiary companies—Vortec Products

Company, a California corporation which manufactures particle classifying equipment, and

Mojave Northern Railroad Company, a corporate private carrier owning a certain right of

way. SWPCC also owns a 25 percent interest in Black River Mining Company joint venture,

a limestone mining operation.

All of these major properties were inspected by the appraisers and all relevant data

secured.

[Headnote 1]

Southdown's objections to the court conformation of the appraisal report are three. First, it

complains that the report ��


did not assign specific weights to the three elements of valuation, that is, the market, cost and

income elements or approaches to value. We summarily reject this complaint. One of the

proposed instructions submitted to the court would have required the appraisers to weigh each

element. That instruction was rejected and changed to read that the appraisers “shall detail the

factors considered and the reasoning leading to the conclusion of valuation.” This change was

approved by both parties.

Second, Southdown asserts that the appraisal report is unreliable since it failed to consider

and give weight to the consequence of the termination of dividend payments on the common

stock of CLI, SWCA, and SWPCC.

Third, Southdown contends that the appraisal report is unreliable since it failed to consider

and give effect to the market price of the stock of CLI, SWCA and SWPCC. We turn to

consider the second and third contentions in the light of the relevant facts appearing from the

record before us.

[Headnote 2]

1. Certain preliminary observations may be useful. When reviewing court confirmation of

an appraisal report, the findings of the appraisers are not to be disturbed unless clearly wrong.

Application of Delaware Racing Association, 213 A.2d 203, 207 (Del. 1965); Jeffrey v.

American Screw Company, 201 A.2d 146, 152 (R.I. 1964); American General Corporation v.

Camp, 190 A. 225, 230 (Md. 1937). This standard is not dissimilar to that governing an

ordinary trial before a court where we are not to set aside the findings made unless they are

clearly erroneous. NRCP 52(a).

[Headnote 3]

The words “fair cash value” as used in NRS 78.150 have been construed by courts

elsewhere to mean the intrinsic value of the dissenting shareholder's interest determined from

the assets and liabilities of the corporation considered in the light of every factor bearing on

value. Roessler v. Security Savings & Loan Co., 72 N.E.2d 259, 260 (Ohio 1947); Lucas v.

Pembroke Water Co., 135 S.E.2d 147, 150 (Va. 1964); Porter v. C. O. Porter Machinery Co.,

58 N.W.2d 135, 136 (Mich. 1953); Adams v. United States Distributing Corporation, 34

S.E.2d 244, 250 (Va. 1945). We so construe NRS 78.510. The instructions of the court

herebefore mentioned appear to have had this general concept in mind.

a) Southdown asks that we reject the appraisal report as unreliable since it failed to

consider and give weight to the ��)�� -��3�*��3:��


consequence of the termination of divided payments on the common stock of CLI, SWCA

and SWPCC.

In March of 1970, Southdown assumed the direction and control of those companies, and

elected no longer to pay regular dividends on the common stock thereof. It is Southdown's

position that such decision was the responsibility of the directors; that shareholders do not

have a vested right to receive dividends. Perhaps this is true. Southwestern Portland Cement

Co. v. Latta & Happer, 193 S.W. 1115 (Tex.Civ.App. 1917). It does not inevitably follow,

however, as Southdown contends, that the failure to pay dividends on common stock reflects

a diminished value of that stock. Low dividends, or even the absence of dividends, are not

necessarily a sign of financial weakness. Perhaps the directors preferred to retain earnings in

the business for the purpose of expansion, or for a variety of other reasons, rather than to pay

dividends. Funds paid out in dividends are not available for corporate growth. On the other

hand, continued corporate earnings without the payment of dividends would increase the

equity value of the stock. Thus, it would seem that the capacity of the company to pay

dividends would carry greater weight in valuing the shareholder's interest than would

consideration of whether dividends were paid. Laird v. Commissioner of Internal Revenue,

85 F.2d 598, 601 (3 Cir. 1936); Blackard v. Jones, 62 F.Supp. 234, 236, Note. 2 (D.C.W.D.

Okla. 1944). This is especially true when valuing the interest of stockholders in a closely held

company.

[Headnote 4]

The record shows that CLI had paid dividends every year from 1923 through 1969. There

is nothing to suggest that it lacked the capacity to do so thereafter. The appraisal report shows

that for the years 1965 through 1969, the consolidated earnings and dividends paid per share

were as noted below. 3 The appraisers' comment: “while C. L. I.'s consolidated earnings have

fluctuated yearly, its dividends payout has increased and averaged slightly more the 74

percent for the five years, 1965 through 1969. The trend of dividends payments indicates a

prospective payout level of $500 per share.” In the view of ��

�� # ��

____________________

3

Year Earnings per Share Dividends per Share

1965.................................................... $652.63 $407.00

1966.................................................... 542.28 405.00

1967.................................................... 379.05 410.00

1968.................................................... 669.81 420.00

1969.................................................... 570.13 450.00

Average.............................................. $562.78 $418.40


the appraisers the capacity to pay dividends apparently existed, notwithstanding the decision

of the directors not to do so. In these circumstances it was permissible for the appraisers to

conclude that the termination of dividend payments did not work to diminish the intrinsic

value of the 581 common shares of CLI held by Clara L. McGinnis, et al.

b) The reliability of the appraisal report next is challenged upon the ground that it failed to

accord appropriate significance to the market price of CLI, SWCA and SWPCC stock. The

market price at which a stock is selling is most reliable when regular published quotations are

available. Levin v. Midland-Ross Corporation, 194 A.2d 50, 53, 54, (Del. Ch. 1963). It is

much less reliable when the trading is irregular. Sporborg v. City Specialty Store, Inc., 123

A.2d 121, 124 (Del. Ch. 1956); American General Corp. v. Camp, 190 A. 225 (Md. 1937).

CLI and SWCA were holding companies, their principal asset being their investment in

SWPCC. There was neither an active nor a public market in CLI or its two subsidiaries. None

of the companies had ever been listed on the exchange or sold over the counter.

Moreover, the market price of stock is less reliable when affected by manipulation and

outside pressure, Sporborg v. City Speciality Store, Inc., supra, or rumor of impending

merger, Bache & Co. v. General Instrument Corp., 198 A.2d 759 (N.J. 1964). Here,

Southdown controlled CLI, had issued a no-dividend policy, and a merger was forthcoming.

It was permissible for the appraisers to consider all of these circumstances.

[Headnotes 5, 6]

It is true that Southdown acquired CLI's common stock at a price of $12,600 per share

pursuant to privately negotiated agreements with the respective selling stockholders. Certain

trusts negotiated for and received payment in cash. The other selling stockholders received

payment in the form of Southdown's 7 1/2 percent notes which were convertible into

Southdown stock. Southdown contends that its stock at that time was depressed below the

conversion price and that the market price of its stock should be the measure of the value of

the notes and, hence, the value of the CLI stock. The appraisers were not obliged to value

CLI's common stock in the manner now asserted by Southdown.

The court instructed the appraisers to utilize the willing-seller, willing-buyer standard in

arriving at fair cash value. Counsel for the parties approved that instruction. When a �� 0�� 2��


stock is not actively traded, as here, that standard may contemplate a “hypothetical” market

price, which allows the consideration of all relevant factors bearing upon value. Vought v.

Republic-Franklin Insurance Company, 192 N.E.2d 332, 334, (Ohio App. 1962). This may

involve a comparison of the company (in this instance SWPCC, the main asset of CLI) to

similar corporations in the cement producing business whose stocks are actively traded. The

appraisers utilized this recognized technique in the appraisal before us, and cannot be faulted

for doing so. Accordingly, this challenge to the appraisal does not mandate a reversal.

2. Other attacks upon the appraisal report are denied out-of-hand. The appraisers did

adhere to the instructions of the court; they made adequate financial investment analysis; and

the report demonstrates that the appraisers fully understood the events leading up to the need

for an appraisal.

The order of the district court confirming the appraisal report is affirmed.


OPINION ON CROSS—APPEAL


[Headnote 7]

Concerning the cross-appeal, Justice Batjer, Justice Zenoff and I believe the minority

shareholders are entitled to prejudgment interest on the “fair cash value” of their stock

interests from the date they were taken by merger. Our brethren believe, to the contrary, that

Nevada law allows a corporation to assume minority shareholders' stock interests through a

merger, offer payment almost 40% less than “fair cash value,” and have no liability whatever

to pay interest on the value of the stock taken until such time as the minority shareholders can

force a court adjudication of value.

It is critical to notice that, under Nevada law, the interests and rights of minority

shareholders are divested, and they attain creditor status, as soon as they demand payment.

NRS 78.515(1). 1 Thus, our statutory law is consistent with what ��B�� +��+��

____________________

1

Hence, cases cited by our brother Thompson, decided under quite different statutory schemes, seem

inapposite. For example, in Pittston Co. v. O'Hara, 63 S.E.2d 34 (Va. 1951), the controlling statute provided that

a shareholder's rights would continue until his interests were adjudicated, and the amount of the judgment

therefor was deposited in court.


the common law has long declared: that the taking of another's property for one's own use

implies a contractual obligation to pay therefor. 1 Corbin Contracts, § 18 et seq.

When there is no express contract in writing fixing a different rate of interest, Nevada law

provides that interest “shall be allowed at the rate of 7 percent per annum upon all money

from the time it becomes due . . . [u]pon contracts, express or implied, other than book

accounts.” NRS 99.040(1). As aforesaid, “fair cash value” became due to the minority

shareholders at that point in time when they achieved “creditor status.” The fact that the

amount due was then not yet judicially determined is quite immaterial. Paradise Homes v.

Central Surety, 84 Nev. 109, 437 P.2d 78 (1968); Close v. Isbell Construction Co., 86 Nev.

524, 471 P.2d 257 (1970); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); State

Farm Mut. Auto. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972).

To the extent that it denied pre-judgment interest from the date of the merger, the district

court's judgment is reversed, and the case is remanded with instructions to amend the

judgment to include appropriate interest.

Batjer and Zenoff, JJ., concur.

Thompson, C. J., dissenting:

The cross-appellants contend that the district court erred in denying prejudgment interest

on the appraisal award of $7,439,650. They claim entitlement to such interest from November

19, 1970, the date of the merger of CLI into Southdown, to May 8, 1972, the date of court

confirmation of the appraisal.

The appraisal and court confirmation statute is silent as to interest. The cross-appellants

urge that the statute should be construed to allow prejudgment interest in order to

accommodate its underlying purpose. Moreover, they suggest that NRS 99.040(1) providing

for interest “upon contracts” upon “all money from the time it becomes due” covers the issue

before us. Finally, they argue that constitutional due process commands such allowance.

1. Shareholders dissenting to the merger lose ownership rights in the corporation and

become creditors. 1 They may not thereafter vote, nor may they receive dividends. By reason

of �� 1�� 1�� +��

��

____________________

1

NRS 78.515(1): “On the making of the demand in writing as provided in NRS 78.505, or 78.507, any such

stockholder shall cease to be a stockholder in the surviving or consolidated corporation and shall


this circumstance, the cross-appellants argue that it would be unfair to allow the corporation

to enjoy interest-free use of the dissenters' money pending appraisal and court action thereon.

This, they suggest, would encourage the corporation to offer a low price for the dissenters'

shares and thereby frustrate reaching an agreement upon fair cash value.

A New York court, considering a Delaware statute which did not provide for interest,

ruled that “simple justice” requires the payment of interest on the value of the dissenters'

stock from the time they are deprived of it. Skipwith v. Federal Water and Gas Corporation,

56 N.Y.S.2d 804, 807 (Sup.Ct. N.Y. 1945). And, in Jones v. Missouri-Edison Electric Co.,

233 F. 49, 53 (8th Cir. 1916), the court allowed interest from the date of the merger. The

Skipwith “simple justice” approach has been flatly rejected by other courts. Meade v. Pacific

Gamble Robinson Co., 51 A.2d 313, 317, 320 (Del. Ch. 1947); In re Erlanger, 142 N.E. 571,

573 (N.Y. 1923); In re Janssen Dairy Corporation, 64 A.2d 652, 665 (Sup.Ct.N.J. 1949). See

also: Pittston Co. v. O'Hara, 62 S.E.2d 34, 39 (Va. 1951); American General Corp. v. Camp,

190 A. 225, 231 (Md. 1937). Those courts would not read into the merger and appraisal

statutes, rights and obligations not fairly expressed therein.

Nevada permits an award of interest only when authorized by statute. Paradise Homes v.

Central Surety, 84 Nev. 109, 116, 437 P.2d 78, 83 (1968). 2 That authorization cannot be

found in our merger and appraisal statutes, and it would be inappropriate to assume its

presence under the guise of “construction.”

2. Subordinately, the cross-appellants suggest that we may consider NRS 99.040(1) as

statutory authorization for prejudgment interest. Briefly stated, their contention is that the

stock certificates of the dissenters are “contracts” and carry interest at the rate of seven

percent per annum “upon all money from the time it becomes due.”

We have sometimes construed that statute to allow prejudgment interest. Paradise Homes

v. Central Surety, supra; Dodd �� '(�$��=/(��=�=��!"@�:�&�!'&��! /�>� " ?5��

____________________

have no rights with respect to such shares, except as hereinafter provided in this section and except the right as a

creditor to receive payment therefor as aforesaid, and upon payment of the agreed fair cash value of the shares or

of the value of the shares under final judgment the stockholder shall transfer his shares to the surviving or

consolidated corporation.”

2

Legislatures elsewhere have provided for prejudgment interest. Note: 50 B.U.L. Rev. 57, 76 (1970).


v. Cowgill 85 Nev. 705, 717, 463 P.2d 482, 490 (1969); Close v. Isbell Construction Co., 86

Nev. 524, 529, 471 P.2d 257, 265 (1970); Brandon v. Travitsky, 86 Nev. 613, 616, 472 P.2d

353, 355 (1970); State Farm Mutual Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d

552, 553, 554 (1972). In each instance, however, a legal wrong was visited upon the

prevailing party to whom prejudgment interest was awarded. Here, the merger did not

constitute a legal wrong to the dissenting shareholders. There was full statutory authority to

do precisely what was done. Meade v. Pacific Gamble Robinson Co., 58 A.2d 415 (Del.

1948). The cited Nevada cases, therefore, are inapposite. Moreover, the stock certificates or

“contracts” include the statutes governing corporations, Seaborn v. Wingfield, 56 Nev. 260,

48 P.2d 881 (1935), and our merger and appraisal statutes do not provide for prejudgment

interest. For these reasons, I would reject the cross-appellants' argument that NRS 99.040(1)

provides for prejudgment interest in this case.

3. The final argument offered for the allowance of prejudgment interest rests upon

constitutional due process. It is suggested that the eminent domain requirement of just

compensation should apply, by analogy, to a private corporate merger.

When private property is taken for public use through an exercise of the power of eminent

domain, the requirement that the condemnor pay just compensation for the taking includes

prejudgment interest where the taking occurs before judgment. Seaboard Air Line Ry. v. U.S.,

261 U.S. 299, 306 (1923); Saunders v. State, 70 Nev. 480, 485, 273 P.2d 970, 972;

Fibreboard Paper Products Corporation v. United States, 355 F.2d 752, 754 (9th Cir. 1966).

In this circumstance, interest is a matter of constitutional right, since the requirement that just

compensation be paid is written in the Constitutions, federal and state. U.S. Const. amend. V;

Nev. Const. art. 1, § 8. Petersen v. School District of Bellevue, 196 N.W.2d 511, 512 (Neb.

1972). Statutory authorization is not necessary. Seaboard Air Line Ry. v. U.S., supra. I am not

aware of any case, however, requiring the payment of interest in private actions as a matter of

constitutional due process.

A private corporate merger is dissimilar to condemnation. A dissenter is not required to

seek a fair cash value appraisal, but may elect to go along with the merger. In eminent

domain, the taking is at the election of the condemnor. In a merger, the stockholder has

agreed to be governed by the controlling ��


statutes. There is no contractual relationship between the condemnor and the property owner.

Neither are the standards of fair cash value and just compensation necessarily synonymous.

These substantial dissimilarities caused the court in Meade v. Pacific Gamble Robinson Co.,

51 A.2d 313, 320 (Del. Ch. 1947), to reject the dissenters' contention that they were entitled

to prejudgment interest as a matter of constitutional right. I would affirm the denial of

prejudgment interest.

Mowbray, J., concurs.

____________

��89 Nev. 197, 197 (1973) Jacobson v. State��

NATHAN S. JACOBSON and THOMAS JOSEPH BRUNO,

Appellants, v. THE STATE OF NEVADA, Respondent.

No. 7113

May 30, 1973 510 P.2d 856

Appeal from an order denying a pretrial petition for a writ of habeas corpus; Second

Judicial District Court, Washoe County; James J. Guinan, Judge.

Petition for habeas corpus challenging existence of probable cause to hold petitioners for

trial. The district court denied the petition, and appeal was taken. The Supreme Court,

Thompson, C. J., held, inter alia, that president of hotel and gambling casino, and bodyguard,

did not possess lawful authority to confine and detain casino employee by reason of statute

which, subject to limitations, gives a gaming licensee or his agents the right to take any

individual suspected of cheating into custody and to detain him in the establishment and

question him, where employee did not violate and was not suspected of violating any

provision of statute relating to cheating, which latter statute specifies unlawful acts and

conduct “for any person playing in a licensed gambling game.”

Affirmed.

Zenoff and Gunderson, JJ., dissented.


Thomas R. Sheridan, of Los Angeles, California, and Frank R. Petersen, of Reno, for

Appellants.


Robert List, Attorney General; Robert E. Rose, District Attorney, Larry R. Hicks, Chief

Criminal Deputy District Attorney, and Calvin R. X. Dunlap, Deputy District Attorney,

Washoe County, for Respondent.

1. Habeas Corpus. Remedy of habeas corpus may be utilized by one who is released on bail and who challenges probable

cause to hold him for trial, even though he does not seek to test the constitutionality of the law under which

he is charged. NRS 34.360.

2. Criminal Law. Magistrate who is attempting to determine whether accused should be held to answer is not concerned

with the sufficiency of the evidence to justify conviction; sufficient cause is shown to order those charged

to stand trial if the evidence received will support a reasonable inference that they committed crimes. NRS

171.206.

3. Criminal Law. It was permissible for magistrate to conclude that second degree kidnaping was shown to have occurred

where victim was confined for 16 hours in rooms, under guard, he was interrogated, beaten, his life was

threatened, and he was precluded from seeking help, which circumstances showed a secret confinement and

also that victim was detained against his will. NRS 200.310, subd. 2.

4. Kidnaping. Movement of victim is only one of several methods by which statutory offense of second degree

kidnaping may be committed. NRS 200.310, subd. 2.

5. Criminal Law. Since it was permissible for magistrate to conclude that there was sufficient confinement or detention to

support probable cause for second degree kidnaping, such confinement or detention would support

probable cause for false imprisonment. NRS 200.460.

6. Criminal Law. Probable cause existed to hold petitioners for committing crime of coercion where record showed that

petitioners physically abused victim and forced him to confess. NRS 207.190.

7. Arrest. President of hotel and gambling casino, and bodyguard, did not possess lawful authority to confine and

detain casino employee by reason of statute which, subject to limitations, gives a gaming licensee or his

agents the right to take any individual suspected of cheating into custody and to detain him in the

establishment and question him, where employee did not violate and was not suspected of violating any

provision of statute relating to cheating, which latter statute specifies unlawful acts and conduct “for any

person playing in a licensed gambling game.” NRS 465.080, 465.101.

8. False Imprisonment. If one has reasonable grounds to believe that another is stealing his property he may be justified in

detaining such person for a reasonable time in order to investigate, and such common law privilege, if

properly exercised, is a defense to an action for false imprisonment.


9. False Imprisonment. Common law privilege permitting the detaining of a person for a reasonable time in order to investigate,

where a party has reasonable grounds to believe that such person is stealing his property, was not a defense

to prosecution of petitioners for, inter alia, false imprisonment, where the record did not suggest that

petitioners believed that their property had been stolen, but where, giving full credit to petitioners' theory of

the case, they knew only of an effort to perpetrate a fraud, and where there was no probable cause to

believe that fraud had occurred.

OPINION


Nathan S. Jacobson and Thomas Joseph Bruno, who are charged with having committed

the crimes of second degree kidnaping, false imprisonment and coercion, appeal from the

denial of their petition for a writ of habeas corpus challenging probable cause to hold them

for trial. Subordinately, they claim to have possessed lawful authority, either by reason of

statute or the common law, to have detained Ray M. Landucci, the alleged victim of their

conduct, in the manner they did. 1 We are asked to set aside the district court decision on the

basis that the evidence upon which the State relies to establish probable cause is insufficient

and, that the court's view of the law is incorrect.

Initially, however, we must rule upon a point raised by the State as to the availability of the

remedy of habeas corpus to Jacobson and Bruno who have been released on bail pending

trial.

[Headnote 1]

1. The Remedy. A majority of the cases from other jurisdictions appear to hold that one at

large on bail already enjoys the liberty he seeks by the writ of habeas corpus and that it is

futile to direct the jailer to produce in court or release a prisoner he does not have in custody.

Annot., 77 A.L.R.2d 1307. In this State, however, we have adopted a contrary view by

statute, and by decision as well. NRS 34.360 grants the ��0�� 2

____________________

1

This appeal, No. 7113, is consolidated with appeals Nos. 7111 and 7112. Appeal No. 7111 is from a district

court denial of habeas corpus following a grand jury indictment, and has been superseded by this appeal from a

district court denial of habeas corpus following a subsequent criminal complaint and preliminary examination.

Appeal No. 7112 is from an order denying a motion to change venue, and has since been dismissed without

prejudice by this court on the ground that the motion and appeal were premature.


remedy of habeas corpus “to every person unlawfully committed, detained, confined or

restrained of his liberty, under any pretense whatever.” And, in Ex Parte Philipie, 82 Nev.

215, 414 P.2d 949 (1966), and In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967), we held that

the remedy of habeas corpus may be utilized by one who is released on bail and who

challenges the constitutionality of the statute or ordinance under which he is charged. Those

decisions were so limited because the issue before the court was similarly limited. We now

expand the pronouncements of those cases to one at large on bail who does not seek to test

the constitutionality of the law under which he is charged, but does challenge probable cause

to hold him for trial. It is evident that one who is in constructive custody by reason of bail, is

subject to a form of restraint since the purpose of bail is to assure that he will attend upon the

court when his presence is required. In re Petersen, 331 P.2d 24 (Cal. 1958). It is equally

apparent that the availability of the Great Writ should not turn on whether the accused is

illegally restrained by reason of a constitutionally infirm law, or because of insufficient proof

to hold him to answer. We hold that the remedy is appropriate.

[Headnote 2]

2. Probable Cause. An accused must be held to answer if it appears from the preliminary

examination “that there is probable cause to believe that an offense has been committed, and

that the defendant has committed it.” NRS 171.206. The magistrate is not concerned with the

sufficiency of the evidence to justify conviction. State v. Fuchs, 78 Nev. 63, 368 P.2d 869

(1962). Sufficient cause is shown to order those charged to stand trial if the evidence received

will support a reasonable inference that they committed the crimes. Beasley v. Lamb, 79 Nev.

78, 378 P.2d 524 (1963).

Our review of the preliminary examination reveals substantial conflicts in the evidence on

material points. In deciding probable cause, the magistrate apparently resolved those conflicts

against the defendants and in favor of the State. It was permissible for him to do so. Miner v.

Lamb, 86 Nev. 54, 464 P.2d 451 (1970). Our function on review is to determine whether his

decision can find support in the evidence presented to him, giving full credit to such

supportive evidence. In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915). Because of

these well-established principles, we shall refer only to that evidence which apparently caused

the magistrate to rule as he did.

The crimes are alleged to have occurred at Kings Castle, a �� -��4��


plush resort hotel and gaming casino at Lake Tahoe. The defendant Jacobson was the

president of Kings Castle and in charge of operations. The defendant Bruno was his

bodyguard. The alleged victim, Landucci, was employed at Kings Castle as a keno manager.

Landucci wished to test the honesty of a coemployee, one James Martin, before promoting

him to a higher position. With this purpose in mind, he told Martin of a fraudulent keno plan,

solicited his cooperation to carry it through, and advised Martin that he would telephone him

later that evening to explain the plan in further detail. Landucci proposed to fire Martin if he

was willing to participate in the scam; otherwise, he would promote him. Landucci did

telephone Martin at Martin's house later that evening and did explain the plan in further

detail. That telephone conversation, however, was monitored by Forrest Paull, a

vice-president of Kings Castle, whom Martin had alerted and invited to eavesdrop. This

circumstance started in motion the events which subsequently led to the criminal charges now

before us.

Soon after that telephone communication, Paull met with Jacobson, his casino manager

Farina, and the casino promotions manager Ferrara, and told them of Landucci's scheme. All

except Jacobson believed that the best course would be to conduct a surveillance, allow the

false keno ticket to be played, and then apprehend the winner before he left the premises.

Jacobson preferred that Paull immediately interrogate Landucci. His preference was honored.

At approximately midnight on September 1, 1971, Paull commenced the interrogation of

Landucci in Paull's upstairs office at the hotel. A security guard waited outside that office.

Paull advised Landucci that he had monitored Landucci's telephone conversation with Martin.

Landucci admitted the conversation and the content thereof. He told Paull of his purpose to

test Martin's honesty and that there was no intention to actually carry out the suggested keno

fraud. Landucci asked Paull, a qualified polygraph operator, to give him a lie detector test, but

Paull would not do so. Paull told Landucci to give the right answers or “Nate would get them

his way,” referring to Jacobson. Landucci continued in his denial of any intention to carry out

the fraud. After about forty minutes, Paull called Jacobson who soon came to the office with

his bodyguard Bruno.

Paull related Landucci's story to Jacobson, left the office, and seated himself in the outside

reception area with the security guard.


Jacobson was upset and angry. He called Landucci several obscene names. Landucci

continued to deny any intention to carry out the fraud, and again asked to be given a

polygraph examination, but was refused. Jacobson and Bruno struck Landucci about the head

several times. Bruno then pulled a revolver from a desk drawer. He also had an automatic

pistol which he loaded and cocked. Bruno threw the revolver in front of Landucci, pointed the

automatic pistol at him, and told him to pick up the revolver. Landucci refused to do so.

Bruno then picked up the revolver and threw it on the couch. He pointed the automatic pistol

at Landucci, and told Jacobson to call an ambulance. At this point, Landucci told them that he

would “give them whatever they wanted.” Paull was called back into the office and wrote out

a confession for Landucci to sign, and he did sign it because he was in fear of his life. The

confession was signed at about 3:10 a.m., on September 2, 1971, and read: “I was going to set

the machine back—Norm was going to come in at 9:30—was going to play undetermined

amount of $5.00 5 spots. Marge was going to write the tickets on #3 machine—Martin going

to blow his nose and comb his hair to signal all O.K. and that Martin was going to turn the

machine back, going to take $4500.00 on the one ticket.”

Jacobson ordered that Landucci be taken to another room where he remained under guard

until about 4 p.m. on the afternoon of September 2, 1971. He was not permitted to use the

telephone.

During the morning of September 2, a close surveillance was maintained for the

unidentified “Norm” who was mentioned in the confession as the person who was to play the

fraudulent keno ticket. James Martin and Marge were on duty and working as usual. The

suspect player did not appear.

While Landucci was detained under guard at Kings Castle from midnight September 1 to 4

p.m., September 2, no one contacted law enforcement officers. Landucci testified that his

confinement was against his will.

That evidence establishes probable cause. Second degree kidnaping is a felony and is

defined by NRS 200.310(2). 2 The statute is quite broad, and designates alternative

circumstances ��

____________________

2

NRS 200.310(2). Every person who shall willfully and without authority of law seize, inveigle, take, carry

away or kidnap another person with the intent to keep such person secretly imprisoned within the state, or for the

purpose of conveying such person out of the state without authority of law, or in any manner held to service or

detained against his will, shall be deemed guilty of kidnaping in the second degree.


which fall within its sweep. The crime is complete, for example, whenever it is shown that a

person willfully and without lawful authority seizes another with the intent to keep him

secretly imprisoned, or to detain him against his will. The proof of either alternative will

support the charge. Jensen v. Sheriff, 89 Nev. 123, 508 P.2d 4 (1973), concerning section 1 of

the statute.

[Headnotes 3, 4]

It is the State's position that each of the mentioned alternatives was established. That is to

say, that Landucci was secretly imprisoned by Jacobson and Bruno; also, that Landucci was,

by them, detained against his will. Moreover, that such secret imprisonment and detention

was accomplished willfully and without lawful authority. Whether Jacobson and Bruno

possessed lawful authority will be considered later. That aspect aside, it was permissible for

the magistrate to conclude that second degree kidnaping was shown to have occurred.

Landucci was confined for some 16 hours in rooms, under guard, was interrogated, beaten,

his life threatened, and was precluded from seeking help. These circumstances show a secret

imprisonment; also, that Landucci was detained against his will. The requisite criminal intent

may be inferred from such circumstances. Jensen v. Sheriff, supra. We reject out-of-hand the

appellants' contention that there was not a legally sufficient asportation of Landucci, since

everything occurred within Kings Castle. Jensen v. Sheriff, supra. Movement of the victim is

only one of several methods by which the statutory offense may be committed. People v.

Knowles, 217 P.2d 1, 6 (Cal. 1950).

The crime of false imprisonment is a gross misdemeanor and is “the unlawful violation of

the personal liberty of another, and consists in confinement or detention without sufficient

legal authority.” NRS 200.460; Lerner Shops of Nevada v. Marin, 83 Nev. 75, 423 P.2d 398

(1967); Marschall v. City of Carson, 86 Nev. 107, 464 P.2d 494 (1970).

[Headnote 5]

Since it was permissible for the magistrate to conclude that there was sufficient

confinement or detention to support probable cause for second degree kidnaping, it follows

that sufficient confinement or detention likewise was shown to support probable cause for

false imprisonment. Again, the aspect of whether the confinement or detention was without

legal authority will be considered later.


[Headnote 6]

The crime of coercion is defined by NRS 207.190. 3 Since the record may be read to show

that Jacobson and Bruno physically abused Landucci and forced him to confess, we cannot

fault the magistrate's finding of probable cause on this charge.

3. Lawful Authority. Jacobson and Bruno contend that they possessed lawful authority to

confine and detain Landucci by reason of NRS 465.101 and, also, by reason of a common law

privilege to protect their property from theft. If they did possess such authority, the charges of

second degree kidnaping and false imprisonment cannot stand. Of course, this issue does not

touch the charge of coercion.

NRS 465.101 was added to our gaming law in 1971 and became effective on April 16 of

that year. 4 Subject to limitations therein specified, that statute gives a gaming licensee or his

agents the right to take any individual suspected of cheating >$%��!"(�/'/?� �� )��

____________________

3

NRS 207.190. 1. It is unlawful for any person, with intent to compel another to do or abstain from doing an

act which such other person has a right to do or abstain from doing, to:

(a) Use violence or inflict injury upon such other person or any of his family, or upon his property, or

threaten such violence or injury; or

(b) Deprive such person of any tool, implement or clothing, or hinder him in the use thereof; or

(c) Attempt to intimidate such person by threats or force.

2. Any person who violates the provisions of subsection 1 shall be punished:

(a) Where physical force or the immediate threat of such force is used, by imprisonment in the state prison

for not less than 1 year nor more than 6 years.

(b) where no physical force or immediate threat of such force is used, for a misdemeanor.

4

NRS 465.101. 1. As used in this section:

(a) “Establishment” has the meaning ascribed to it in NRS 463.0109.

(b) “Licensee” has the meaning ascribed to it in NRS 463.0119.

2. Any licensee, or his officers, employees or agents may question any individual in his establishment

suspected of violating any of the provisions of NRS 465.080. No licensee or his officers, employees or agents

shall be criminally or civilly liable on account of any such questioning.

3. Any licensee or his officers, employees or agents who have probable cause for believing that there has

been a violation of NRS 465.080 in his establishment by any individual may take such person into custody and

detain him in the establishment in a reasonable manner and for a reasonable length of time. Such taking into

custody and detention shall not render such licensee or his officers, employees or agents, criminally or civilly

liable for false arrest, false imprisonment, slander or unlawful detention unless such taking into custody and

detention are unreasonable under all the circumstances.

4. No licensee, or his officers, employees or agents are entitled to


(NRS 465.080) into custody, detain him in the establishment and question him. If the

limitations of the statute are honored, the licensee or his agents are granted an immunity from

criminal and civil liability for false arrest, false imprisonment, slander or unlawful detention.

The right to detain and question, and the correlative grant of immunity, however, are

limited in scope. First, the right to detain and question does not exist unless the licensee or his

agents have probable cause to believe that the individual has violated NRS 465.080. Second,

if such probable cause exists, the licensee or his agents may take such individual into custody

and detain him in the establishment only in a reasonable manner and for a reasonable length

of time. Third, the statutory immunity does not exist unless there is displayed in a

conspicuous place in the establishment a notice in boldface type, clearly legible, and

substantially in the following form: “Any gaming licensee, or his officers, employees or

agents who have probable cause for believing that any person violated any provision of NRS

465.080 prohibiting cheating in gaming may detain such person in the establishment for the

purpose of notifying a peace officer.”

[Headnote 7]

NRS 465.010 does not touch this case. Landucci did not violate nor was he suspected of

violating any provision of NRS 465.080. The latter statute specifies unlawful acts and

conduct “for any person playing any licensed gambling game.” Landucci did not play a

licensed gambling game and does not, therefore, fall within that statute. Consequently, we

need not decide whether the legislature intended that the provisions of NRS 465.101 and

465.080 in combination are to apply only to customers and not to employees. Neither must

we determine whether the right to detain one suspected of cheating was granted the licensee

for the purpose of notifying a peace officer, or for other purposes as well. We hold that

Jacobson and Bruno did not possess lawful authority to confine and detain Landucci by

reason of NRS 465.101.

____________________

the immunity from liability provided for in this section unless there is displayed in a conspicuous place in his

establishment a notice in boldface type clearly legible and in substantially this form:

Any gaming licensee, or his officers, employees or agents who have probable cause for believing that

any person violated any provision of NRS 465.080 prohibiting cheating in gaming may detain such

person in the establishment for the purpose of notifying a peace officer.


[Headnote 8]

If one has reasonable grounds to believe that another is stealing his property he may be

justified in detaining such person for a reasonable time in order to investigate. Lerner Shops

v. Marin, 83 Nev. 75, 78, 423 P.2d 398 (1967). This common law privilege, if properly

exercised, is a defense to an action for false imprisonment.

[Headnote 9]

The record does not suggest that the defendants-appellants believed that their property had

been stolen. Giving full credit to their theory of the case, they knew only of an effort to

perpetuate a fraud. Since there was no probable cause to believe that a fraud had occurred,

this contention must fail.

For the reasons expressed, the ruling of the district court is affirmed.

Mowbray and Batjer, JJ., concur.

Zenoff, J., with whom Gunderson, J., agrees, dissenting:

We believe the majority draft is too understated. The facts in their totality reflect the

circumstances of this case as being both unique and bizarre, more characteristic of a T.V.

scenario than real life drama.

The chief witnesses were Forrest Paull, Vice President of King's Castle, who testified on

behalf of the state under a promise of immunity, and Ray Landucci, Keno Manager and the

purported culprit in a “scam” to beat the house out of a substantial sum of money by rigging a

Keno machine. He solicited the help of employee James Martin whom he said he distrusted

but was still intending to promote to a higher position, he said, in the Keno department.

Landucci had a sparse knowledge of electronics and demonstrated once earlier to Martin how,

through the use of electronics, a Keno machine could be “adjusted,” but the attempt merely

blew a fuse. He contacted Martin more than once by telephone to further his fraudulent plan

but by this time Martin had told Paull of Landucci's intentions and Paull secretly monitored

the telephone conversations.

Paull notified Jacobson who refused to allow the scheme to go forward to completion.

Instead Jacobson instructed Paull to tell Landucci that the plan was discovered and get him to

confess and to help catch the co-conspirator.

Paull invited Landucci to accompany him to Paull's office where they remained outside

Paull's office near the casino proper, while Paull advised Landucci that he knew what was�� )��


going on and questioned him. Landucci's explanation was that he had in mind to promote

Martin but wanted to test his honesty. He admitted that that was not his proper function, that

his duty was to inform Paull, his superior, of any suspected dishonesty of an employee. He

had never taken it upon himself before to check an employee's honesty. Paull testified that

being a qualified polygraph operator it would be fruitless to give Landucci a polygraph

examination because Landucci by this time was much too nervous and was crying.

The record is voluminous, but whatever facts were presented by Landucci they were

refuted, modified or denied by Paull and Reynolds, the security guard, and by Martin who had

denied any guilty complicity and who had passed a polygraph examination in connection with

his story of the event. The agreed factors are that the plan to cheat King's Castle originated

with Landucci and that he proposed it to Martin who reported it to Paull who reported it to

Jacobson. Whatever the truth of the additional facts, it is clear that Landucci had no desire or

inclination to prosecute this action. Somehow or another, unclear from the record, agents of

the Federal Bureau of Investigation came into knowledge of the events shortly after they

occurred. They interviewed Landucci who said then he wanted to carry it no further. The

F.B.I. agent took 18 photographs of Landucci but the photographs were never admitted into

evidence, so we don't know if he bore visible bruises of a beating. There is inference from the

record that he did not.

The F.B.I. turned the story over to the Washoe County sheriff's office who called Landucci

in for interrogation. Thereafter, for the next few weeks he spent his time unemployed except

for recreational hunting and the like. His work effort consisted of contacting Paull who met

him at a gasoline station away from King's Castle, the purpose of which was to try to

convince King's Castle that they should put in a favorable report so that Landucci could

obtain unemployment benefits. His requests were refused and he never was approved for

unemployment benefits even after a hearing before an appropriate board.

In the early morning hours on the day in question at Paull's office after Paull had

questioned Landucci, Paull notified Jacobson who came in with Bruno, a newly hired

bodyguard. Paull left the office. Thereafter, the truth of the events which allegedly took place,

to wit, alleged beatings and threats, together with a display of a gun by Bruno, are debated pro

and con. This much is clear, that Landucci during the course of the �� :��+��


interrogation left Paull's office, greeted the security guard, walked down the corridor to get a

drink of water, returned and at all times could have left at any time. He stated himself that he

was scared, that he was upset and that he really wasn't certain whether he was held against his

will or not. His impression was that he could walk out but that Jacobson could have him

arrested or that he could stay in the hotel and assist in the apprehension of a third party who

was to collect the money when the false Keno game was accomplished. In the event of the

latter he would be showing his cooperation to clear the matter up. The question of the refusal

to allow him to use the telephone was to prevent him from issuing a warning to any

co-conspirator but Paull did call Landucci's wife and tell her that her husband was working an

additional shift. Despite Landucci's testimony that Bruno threatened him with a gun and

struck him during the course of the long period of time Landucci, Jacobson and Bruno were

alone in Paull's office, Landucci could not recognize Bruno who was seated in the courtroom

near the witness stand. It should be remembered further that Landucci told the District

Attorney's office and the sheriff's office that he wanted all prosecutorial efforts stopped in

connection with this incident and this was prior to his meeting with Paull at the gasoline

station.

The fantastic, almost unbelievable circumstances provide the foundation for our

determination of whether a kidnapping took place, a false imprisonment and a coercion. It is

undisputable that the record discloses probable cause for a jury determination on the issue of

coercion but the same cannot be said for kidnapping.

1. Kidnapping. We said in Jensen v. Sheriff, 89 Nev. 123, 508 P.2d 4 (1973), that

kidnapping implies an asportation, a carrying away of a person and that is the generally

accepted view of kidnapping as distinguished from false imprisonment. There was no

carrying away here in the sense that we defined kidnapping in the Jensen case. Even if

Landucci's presence in Paull's office had been inveigled, his own understanding at all times

that he could leave when he desired negates that he was secretly imprisoned. Because a

security guard was seated outside the door does not necessarily mean that the security guard

was supposed to keep Landucci within the premises. Landucci never asked if he could leave

and didn't try to leave and made no attempt to leave the King's Castle premises. A wide open

incident such as this defies the realities that surround a kidnapping of any degree.

2. False imprisonment. If we were concerned only with �� # ��


false imprisonment, probable cause does exist to take this matter to trial on that issue. But the

defendants seek to excuse their purported conduct on the authority of NRS 465.101 and NRS

465.080. The latter statute allows a gaming licensee or his agents the right to take any

individual suspected of cheating into custody, detain him in the establishment, question him

and call the law. The licensee or his agents are granted immunity from criminal and civil

liability for false arrest, false imprisonment, slander or unlawful detention. The limitations to

these privileges are that the licensee or his agents must have probable cause to believe that the

individual has violated NRS 465.080 and if such probable cause exists, the individual may be

taken into custody and detained only in a reasonable manner and for a reasonable length of

time. A third requirement is that signs be displayed conspicuously in the gaming

establishments. The record shows that King's Castle displayed in many areas, including the

restrooms, the required signs that told the dangers of cheating.

We must therefore determine whether the statute means that only customers who are

suspected of cheating fall within the statute. The trial judge stated that he had read the

legislative history of the statute and was of the opinion that only customers were intended.

There is no reason to grant immunity when customers cheat yet withhold it when employees

cheat since gaming employees are more knowledgeable of cheating methods than customers

are. All cheating, no matter by whom committed, is to be discouraged. The overall purpose is

to stop cheating of gaming establishments and fine-line distinctions having no purpose should

not be entertained.

This then resolves into whether or not the King's Castle officials acted reasonably in

detaining Landucci if he were in fact detained at all, and if so, whether the detention was in a

reasonable manner and for a reasonable length of time. The question is, if Jacobson and

Bruno did falsely imprison Landucci, are they protected by the immunity statute or did they

exceed the limits of reasonableness?

____________

��89 Nev. 210, 210 (1973) Midwest Supply, Inc. v. Waters��

MIDWEST SUPPLY, INC., Doing Business as H & R BLOCK COMPANY, and H & R

BLOCK COMPANY, a Nevada Corporation, Appellants, v. PATRICK H. WATERS and

LUCILLE C. WATERS, His Wife, and WALLACE D. WATERS and MARGARET L.

WATERS, His Wife, Respondents.

No. 6772

May 30, 1973 510 P.2d 876

Appeal from jury verdict and judgment thereon and order denying motion for new trial,

Second Judicial District Court; John F. Sexton, Judge.

Action for damage allegedly caused by false and fraudulent representations of tax

expertise resulting in enforced collection procedures for additional taxes by Internal Revenue

Service following improper refunds which defendants erroneously caused plaintiffs to claim.

The district court entered judgment for plaintiffs for compensatory and punitive damages and

defendants appealed. The Supreme Court, Gunderson, J., held that evidence of willful and

wanton misrepresentations, in defendants' advertising and in their internal business practices,

specifically aimed at deceiving members of public who might rely on tax expertise warranted

instructions on fraud. The Court also held that award of $100,000 punitive damages was not

excessive.

Affirmed.


Vargas, Bartlett & Dixon, and Frederic R. Starich, of Reno, for Appellants.

Seymour H. Patt, of Reno, for Respondents.

1. Fraud. In action for damage allegedly caused by false and fraudulent representations of tax expertise resulting in

enforced collection procedures for additional taxes by Internal Revenue Service following improper

refunds which defendants erroneously caused plaintiffs to claim, evidence of willful and wanton

misrepresentations, in defendants' advertising and in their internal business practices, specifically aimed at

deceiving members of public who might rely on tax expertise warranted instructions on fraud.

2. Fraud. Award of punitive damages in action based on false and fraudulent tax representations of tax expertise

was not erroneous, �� #��


although it exceeded amount set forth in prayer of original complaint.

3. Judgment; Pleading. Prayer for relief, except in case of judgment by default, does not limit recovery and is not part of

claimant's cause of action.

4. Appeal and Error. Unnecessary act of trial court in allowing amendment of pleadings to increase prayer for punitive

damages after jury returned verdict in amount larger than that prayed for did not prejudice defendants.

5. Damages.

Punitive damages are authorized in proper cases to punish and deter culpable conduct. NRS 42.010.

6. Damages. Amount of punitive damages appropriate to punish and deter culpable conduct lies in discretion of court

and need bear no fixed relationship to compensatory damages awarded. NRS 42.010.

7. Fraud. Award of $100,000 punitive damages in action based on false and fraudulent representations of tax

expertise brought against defendants whose net worth was $6,000,000 was not excessive. NRS 42.010.

OPINION


In this action for damages allegedly caused by false and fraudulent representations of tax

expertise, the jury favored respondents with a verdict for compensatory and punitive

damages. On appeal, appellants contend (1) that there was no evidence to justify a jury

instruction relating to fraud; (2) that the verdict for punitive damages improperly exceeded

the amount claimed in the prayer of respondents' original complaint; and (3) that the jury was

activated by passion and prejudice in its award of punitive damages.

These contentions have no merit.

Attracted by public advertisements, respondents contacted appellants in 1966 to ascertain

if they might file amended personal and partnership income tax returns, reallocating to

respondents Wallace Waters and Margaret Waters a larger share of an investment tax credit

from business equipment purchased in 1964. In February of 1967, appellants prepared for

respondents original tax returns for 1966, and nine amended tax returns for 1963, 1964, and

1965. Such returns claimed refunds for taxes previously paid. Although the amended returns

showed that the partnership had disposed of �� ) �� "(�� #�� ) ��


the business equipment in 1965, the refund claims were predicated on investment tax credit

attributable to that equipment.

At the time, the Internal Revenue Code required repayment of any investment tax credit

previously claimed, if the equipment was not retained for the prescribed qualifying period.

Hence, after respondents improperly received refunds that appellants erroneously caused

them to claim, an Internal Revenue Service audit resulted in assessment to respondents of

additional taxes. Enforced collection procedures for these additional taxes, including the

filing of tax liens, and numerous levies on wages and bank accounts, caused severe hardship

to respondents.

[Headnote 1]

1. Appellants contend the trial court erred in instructing the jury as to fraud because there

was no evidence that appellants intentionally misled respondents when undertaking to prepare

their tax returns. We disagree. The record contains evidence of willful and wanton

misrepresentations, in appellants' advertising and in their internal business practices,

specifically aimed at deceiving the members of the public who might rely on appellants for

tax expertise.

In their public advertising, appellants “guaranteed accurate tax preparation,” stating that

they would prepare “complete returns—$5 up.” Thereby, appellants suggested their

employees' expertise in preparing all types of tax returns. Despite this, they made no effort to

hire employees with even rudimentary skill in accounting or in the preparation of tax returns.

Appellants sometimes administered to new employees a 72- hour course in tax return

preparation, but apparently even this minimal training was not a prerequisite to serving the

public. The temporary employee who prepared respondents' tax returns had been employed in

construction work for several years prior to his employment with appellants, and had received

no formal training in the preparation of tax returns, either prior to or during his employment

with appellants.

Appellants' manual instructed their office managers to counter inquiries concerning the

qualifications of employees by saying that “[the company] has been preparing taxes for 20

years.” The manual further instructed office managers not to refer to an employee as a

“specialist or tax expert,” but never to correct news reporters or commentators if they referred

to employees in this manner.

In our view, such evidence supports a determination of fraud. “The suppression of a

material fact which a party is �� ) �� # ��2


bound in good faith to disclose is equivalent to a false representation, since it constitutes an

indirect representation that such fact does not exist.” Villalon v. Bowen, 70 Nev. 456, 467,

273 P.2d 409, 414 (1954).

[Headnotes 2, 3]

2. Appellants urge that the award of punitive damages was erroneous because it exceeded

the amount set forth in the prayer of respondents' original complaint. Again, we disagree; for

“the prayer for relief, except in the case of a judgment by default, does not limit recovery; and

is not a part of the claimant's cause of action.” 2(A) J. Moore, Federal Practice § 8.18, at 1805

(2d ed. 1972).

[Headnote 4]

When the jury returned its verdict, the trial court allowed amendment of the pleadings to

increase respondents' prayer for punitive damages. This unnecessary act cannot be deemed to

prejudice appellants. Cf. Wendy v. McLean Trucking Co., 279 F.2d 958 (2d Cir. 1960).

3. Finally, appellants contend the jury's award of $100,000 punitive damages was actuated

by passion and prejudice.

[Headnotes 5-7]

Our law authorizes punitive damages in proper cases to punish and deter culpable conduct.

Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); NRS 42.010. 1 The amount

appropriate to these purposes, which lies in the discretion of the court, need bear no fixed

relationship to the compensatory damages awarded. Alper v. Western Motels, Inc., 84 Nev.

472, 443 P.2d 557 (1968); Gerlach Live Stock Co. v. Laxalt, 52 Nev. 191, 201, 284 P. 310,

313 (1930). At trial, appellants' net worth was established at six million dollars. The jury was

properly instructed, and under the circumstances of this case, we do not find the jury's award

of punitive damages excessive. Cf. Miller v. Schnitzer, supra; cf. Wells, Inc. v. Shoemake, 64

Nev. 57, 74, 177 P.2d 451, 460 (1947).

The judgment is affirmed.


____________________

1

42.010. Cases in which exemplary, punitive damages may be awarded. In an action for the breach of an

obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, express

or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by

way of punishing the defendant.

____________

��89 Nev. 214, 214 (1973) Bell v. Sheriff��

STERLING BELL, Appellant, v. SHERIFF,


No. 7233

May 30, 1973 510 P.2d 293

Appeal from an order denying a pre-trial writ of habeas corpus, Eighth Judicial District


Affirmed.

Raymond E. Sutton, of Las Vegas, for Appellant.



OPINION

Per Curiam:

Appellant's sole contention in this appeal from the denial of pre-trial habeas relief is that

the evidence adduced at the preliminary examination was insufficient to establish probable

cause to order him to stand trial for murder. The contention is without merit. NRS 171.206.

See Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970).

Affirmed.

____________

��89 Nev. 214, 214 (1973) Maheu v. District Court��

ROBERT A. MAHEU, Individually and Doing Business as ROBERT A. MAHEU

ASSOCIATES, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPT. NO. 6 and THE

HONORABLE HOWARD W. BABCOCK, Judge Thereof, Respondents.

No. 7190

May 30, 1973 510 P.2d 627

Original petition for a writ of mandamus commanding respondent court to hear and rule

upon petitioner's pending motion for the imposition of conditional sanctions in connection

with the taking of a deposition. The Supreme Court, Zenoff, J., held that despite petitioner's

claim that he was ��


entitled to a priority determination of his motion for sanctions, the trial court did not abuse its

broad discretion in calendaring the many pending motions before it.

Petition denied.

Galane, Tingey & Shearing, of Las Vegas, for Petitioner.

Davis and Cox, of New York, and Morse, Foley & Wadsworth, of Las Vegas, for

Respondent.

Trial.

Despite petitioner's claim that he was entitled to a priority determination of his motion for sanctions

surrounding the taking of a deposition, it could not be said that the trial court abused its broad discretion

in calendaring the many pending motions before it.

OPINION


Petitioner Maheu petitions for a writ of mandamus commanding the respondent court to

hear and rule upon his pending motion for the imposition of conditional sanctions against

Hughes Tool Co. in connection with the prospective deposition of Howard Hughes.

In prior proceedings this court has already decided interlocutory problems involved in this

lawsuit of Robert Maheu against the Howard Hughes interests for what he claims was his

wrongful discharge from employment. Our first decision, Maheu v. District Court, 88 Nev.

12, 493 P.2d 709 (1972), removed an ex parte stay order, which should have paved the way

for the taking of Howard Hughes' deposition, the major consideration before the court at that

time. Later, in the same entitled action reported in 88 Nev. 592, 503 P.2d 4 (1972), we voided

an invalid provision of a preliminary injunction which had interfered with the expeditious

processing of this litigation. Those roadblocks removed, the trial court proceeded to

accumulate all of the matters and motions pending and to set them for hearing 1 Maheu

asserts that he is entitled to a �� +��

____________________

Party Filing

1

Date Motion Nature of Motion

1/11/71 Hughes................Motion to vacate notice to take deposition of Hughes

1/15/71 Hughes................Motion to vacate notice to take deposition of Raymond M. Holliday

1/19/71 Hughes................Motion for stay and for extension of time


priority determination of his motion for sanctions surrounding the taking of Hughes'

deposition because some of the language of our first decision so directed. He is accurate in

stating the purport of that decision but we will not interfere with the trial court's calendaring

of the pending motions. The lower court ��

____________________

Party Filing

Date Motion Nature of Motion

2/21/71 Maheu................Motion to strike portion of affidavit of Thomas McKeon

3/9/71 Maheu................Motion for compulsory physical examination of Hughes

3/9/71 Maheu................Motion for reference to special master to examine files and documents

3/9/71 Maheu................Motion for production of documents

3/9/71 Maheu................Motion for access to sealed transcript

3/9/71 Maheu................Motion to vacate stay of depositions of Davis and Gay

3/22/72 Hughes..............Motion for order fixing conditions of supersedeas and appointing special master

3/22/72 Hughes..............Motion for stay of proceedings pending appeal

3/22/72 Hughes..............Motion to amend complaint

3/22/72 Hughes..............Motion for summary judgment on counterclaim

3/22/72 Hughes..............Motion for summary judgment making permanent preliminary injunction

3/22/72 Defendants........Motion to dismiss for failure to comply with NRCP 19, 17 and 8

3/22/72 Hughes..............Motion for order scheduling motions for hearing

3/26/72 Maheu Motion to vacate ex parte extension order of 3/22/72 and to strike motions filed

on the basis of said ex parte order

5/3/72 Maheu................Motion for imposition of a conditional sanction against plaintiff Hughes Tool

Co.

5/19/72 Hughes..............Rule 56(g) motion for recovery of costs

5/3/72 Maheu................Application for priority hearing on motion to impose sanctions

1/2/73Maheu Motion under Rule I(7) Eighth Judicial District Court Rules objecting to a setting

for hearings of motions noted for motion docket of 1/5/73 until the hearing and

disposition of the 5/3/72 motion for imposition of conditional sanction against

plaintiff Hughes Tool Co.

1/8/73Hughes Charge of disqualification of judge and in the alternative application to vacate

the ex parte order of 1/2/73

1/15/73 Maheu................Motion to strike withdrawal of motions filed 1/12/73

1/19/73 Maheu Motion under Rule III(2) to strike from the calendar or overrule for want of

proper prosecution the following documents filed 1/18/73


has broad discretion in calendaring matters before it. The United States Supreme Court has

held:

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for

itself, for counsel, and for litigants. How this can best be done calls for the exercise of

judgment which must weigh competing interests and maintain an even balance.” Landis

v. North American Co., 299 U.S. 248, 254-55 (1936).

We find no abuse of discretion by the trial court. The petition is denied.


____________

��89 Nev. 217, 217 (1973) Second Baptist Ch. v. First Nat'l Bank��

THE SECOND BAPTIST CHURCH OF RENO, NEVADA, a Nevada Corporation,

Appellant, v. FIRST NATIONAL BANK OF NEVADA, a National Banking Association

Qualified to do Business in the State of Nevada, Respondent, v. A. POLK, Also Known as

ANGASS POLK, Third-Party Defendant.

No. 7043

June 4, 1973 510 P.2d 630

Appeal from summary judgment. Second Judicial District Court, Washoe County; Thomas

O. Craven, Judge.

Appeal from summary judgment in the district court involving transaction in which bank

paid check despite stop payment order. The Supreme Court, Zenoff, J., held that where

defense of election of remedies was not asserted in answer, the defense was waived, and

further held that where prior suit against third-party defendant alleged that he was paid and in

instant action against bank allegation was that payment by bank of check issued to third-party

defendant was wrongful, the two claims were coexistent but not inconsistent and both

remedies were available to drawer of check with the limitation that there could be but one

satisfaction, and doctrine of election of remedies was not applicable.


Charles L. Kellar, of Las Vegas, for Appellant.


Goldwater, Hill, Mortimer & Sourwine, of Reno, for Respondent.

1. Election of Remedies.

Election of remedies is an affirmative defense that must be specifically asserted in the pleading. NRCP

8(c).

2. Pleading.

If affirmative defenses are not pleaded, asserted by a motion or tried by consent, they are waived. NRCP

8(c), 12(b), (h).

3. Election of Remedies.

Where defense of election of remedies was not asserted in answer, the defense was waived. NRCP 8(c),

12(b), (h).

4. Election of Remedies. Elements of doctrine of election of remedies are: existence of two or more remedies; inconsistency

between the remedies; and choice of one or more of the remedies.

5. Election of Remedies. Doctrine of election of remedies has application only to inconsistent remedies.

6. Election of Remedies. Where prior suit against third-party defendant alleged that he was paid and in instant action against bank

allegation was that payment by bank of check issued to third-party defendant was wrongful, the two claims

were coexistent but not inconsistent and both remedies were available to drawer of check with the

limitation that there could be but one satisfaction, and doctrine of election of remedies was not applicable.

OPINION


This is an appeal from a summary judgment involving a transaction in which respondent

paid a check despite a stop payment order.

On August 11, 1965 appellant issued a check to third-party defendant Angass Polk in the

sum of $5,000.00 drawn on its account at a branch of respondent bank. The following day

appellant stopped payment on the check. Two months later the check was presented for

payment at respondent's Spokane Street branch and respondent, contrary to the stop payment

order, paid third-party defendant Angass Polk the sum of $5,000.00 and charged appellant's

account therefor.

On February 21, 1966 appellant joined with Mount Zion Baptist Church and as

co-plaintiffs they instituted action No. 226930 against Angass Polk alleging that Mount Zion

had contracted to sell some property to appellant; that the property was subject to mortgage

indebtedness of $5,000.00; that Mr.


Polk, the Mortgage holder, agreed to accept $5,000.00 from appellant in satisfaction of the

mortgage indebtedness of Mount Zion Baptist Church; that appellant paid Polk $5,000.00 by

check on appellant's account at First National Bank of Nevada; and that Polk cashed the

check and received the proceeds thereof but refused to release his security interest in the

property. The complaint sought to have title to the property quieted.

On May 11, 1969 appellant commenced the present action against respondent to recover

the sum of $5,000.00 paid to Angass Polk on October 8, 1965. The complaint in this suit

alleges that the stop payment order was duly filed and that thereafter respondent negligently

and in violation of the contractual agreement between the parties, wrongfully paid the check

to Angass Polk.

Respondent answered on October 30, 1969 alleging as an affirmative defense failure to

state a claim upon which relief could be granted. More than one year later, on November 3,

1970 respondent moved for summary judgment on the ground that appellant by commencing

the prior action No. 226930 against Polk (the payee of the check) made an election of

remedies which precludes the present action against the bank. This was the first time the

doctrine of election of remedies was raised by respondent. At this point both actions were

pending simultaneously before the court.

On September 9, 1971 the district court entered a judgment dismissing with prejudice the

complaint in the first action No. 226930, on the ground of want of prosecution pursuant to

NRCP 41(e), i.e., failure to bring the action to trial within 5 years.

On June 26, 1972 in this action the trial judge granted respondent's motion for summary

judgment on the ground that the first action, against the payee of the check, constituted an

election of remedies which precluded the present action against respondent bank. Appellant

contends the court erred in this ruling.

The question is did the bank waive the defense of election of remedies by its failure to

assert the defense in the answer, or if not waived, did the commencement of the lawsuit

against Polk absolve the bank from liability for its breach of the stop order?

1. The defense of election of remedies should have been asserted in the answer. NRCP

12(b) provides that: “Every defense in law or fact, to a claim for relief in any pleading . . .

shall be asserted in the responsive pleading thereto . . .” and ��


goes on to state that a motion making any of certain stated defenses must be made before

pleading if a further pleading is permitted. NRCP 12(h) at that time provided that: “A party

waives all defenses and objections which he does not present either by motion . . . or, if he

has made no motion, in his answer or reply. . . .” Later amendments to Rule 12(h) did not

alter the purport of that rule as it applies here.

[Headnotes 1-3]

Also, NRCP 8(c) requires that all affirmative defenses be specifically asserted in the

pleading. Election of remedies is one such affirmative defense. 1 Kuhl v. Hayes, 212 F.2d 37,

39 (10th Cir. 1954); Bagwell v. Susman, 165 F.2d 412, 415 (6th Cir. 1947); Macias v. Klein,

106 F.Supp. 107, 110 (W.D. Pa. 1952), reversed on other grounds, 203 F.2d 205 (3d Cir.),

cert. denied, 346 U.S. 827 (1953). If the affirmative defenses are not so pleaded, asserted by a

Rule 12(b) motion or tried by consent they are waived. Radio Corporation of America v.

Radio Station KYFM, Inc., 424 F.2d 14 (10th Cir. 1970); cf. Albee Homes, Inc. v. Lutman,

406 F.2d 11, 13 (3d Cir. 1969). There was no appropriate pleading in this case, thus the

defense is waived. Accordingly it could not properly form the basis of the summary

judgment.

[Headnote 4]

2. Even if not viewed as waived, the elements of the doctrine of election of remedies were

not established. The elements are:

(a) The existence of two or more remedies;

(b) Inconsistency between the remedies;

(c) Choice of one or more of the remedies.

[Headnote 5]

If any of the above three elements is absent the defense is inapplicable. Dudley v. King,

285 P.2d 425 (Okl. 1955). The doctrine of election of remedies has application only to

inconsistent remedies. Nevada Land & Mtge. v. Hidden Wells, 83 $��(/��!@(�:�&�� '>� "=?5�;��

____________________

1

NRCP 8(c): Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively

accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in

bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license,

payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting

an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a

counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as it there had been a

proper designation.


Nev. 501, 435 P.2d 198 (1967); McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957);

Barringer v. Ray, 72 Nev. 172, 298 P.2d 933 (1956).

[Headnote 6]

The two remedies were not inconsistent. The suit against Polk alleges that he was paid. In

this action against the bank the allegation is that the payment of the check by the bank was

wrongful. As in Foshay Trust & Savings Bank v. Public Utilities C. Corp., 64 F.2d 665, 667

(8th Cir. 1933), the two claims were coexistent but not inconsistent. The filing of the claim

against Polk was in no sense a ratification of the unauthorized payment by the bank. Both

remedies were available to the drawer of the check with the limitation that there could be but

one satisfaction. It would be inconsistent to allow the bank to rely on the equitable doctrine of

election of remedies when the bank was both negligent and in breach of contract in paying a

check over a stop payment order. Cf. First National Bank of McAlester v. Mann, 410 P.2d 74,

79 (Okl. 1966).

The order for summary judgment is reversed and the matter remanded for further

proceedings.

Thompson, C. J., and Mowbray and Gunderson, JJ., and Compton, D. J., concur.

____________

��89 Nev. 221, 221 (1973) Glispey v. Sheriff��

BRENDA DAWN GLISPEY, Appellant, v. SHERIFF,

CARSON CITY, NEVADA, Respondent.

No. 7123

June 4, 1973 510 P.2d 623

Appeal from an order denying pre-trial petition for habeas corpus, First Judicial District

Court, Carson City; Frank B. Gregory, Judge.

The Supreme Court, Zenoff, J., held that since accused's access to prison rest room as

woman visitor was not exclusive and she did not maintain control over the location, even if

accused did place marijuana in the paper towel receptacle any subsequent intent to recover

marijuana would be purely speculative and could not sustain requisite probable cause to hold

her for trial on basis of constructive possession.

Reversed.


James W. Johnson Jr., and Thomas L. Belaustegui, of Reno, for Appellant.

Robert List, Attorney General, and Michael Fondi, District Attorney, Carson City, for

Respondent.

1. Criminal Law. While it was conceded that one of three women who used rest room at prison was responsible for placing

the controlled substance in trash receptacle in which it was found by guard, in order to establish that the

accused, one of the three, might be tried for unlawful possession of narcotics it was incumbent upon

prosecution to offer proof that she exercised dominion and control over the contraband. NRS 212.160,

453.336.

2. Drugs and Narcotics. Accused has constructive possession of contraband only if she maintains a control or right to control the

contraband.

3. Drugs And Narcotics. Possession of contraband may be imputed where contraband is found in a location which is immediately

and exclusively accessible to accused and subject to her dominion and control, and even if accused does

not have exclusive control of the hiding place possession may be imputed if she has not abandoned the

contraband and no other person has obtained possession.

4. Drugs and Narcotics. Accused is deemed to have the same possession as any person actually possessing narcotic pursuant to

accused's direction or permission where accused retains a right to exercise dominion or control over

property.

5. Criminal Law. Since accused's access to prison rest room as woman visitor was not exclusive and she did not maintain

control over the location, even if accused did place marijuana in the paper towel receptacle any subsequent

intent to recover marijuana would be purely speculative and could not sustain requisite probable cause to

hold her for trial on basis of constructive possession. NRS 212.160, 453.336.

OPINION


This is an appeal from an order which denied a pre-trial petition for habeas corpus.

An undisclosed number of inmates at the state prison were obtaining controlled substances

from an unknown source. The warden, and his staff, suspected that certain persons who

visited some of the prisoners might be smuggling the substances into the prison.

A plan was devised whereby the guards at the entry gate ��


were to telephone the secretary of the deputy warden when certain visitors signed in at the

gate. The secretary was delegated to keep those certain visitors under surveillance when they

arrived in the visitors building. Implementing the plan, Captain Morgan of the prison guard

staff, shook down the ladies rest room in the visitors building about 8:00 o'clock on the

morning of July 27, 1972, and, again, about 10:15 a.m. During the interim three women

visitors used the rest room and then went to the visiting area. Captain Morgan testified that at

8:00 a.m. the paper towel receptacle in the rest room was empty but at 10:15 a.m. there were

about 11 paper towels and a bag of what tested to be marijuana in the receptacle. Appellant

was one and the last of the three women who used the rest room during the interim. After the

10:15 a.m. shake down appellant was arrested and charged with possession of a controlled

substance (NRS 453.336), and attempting to furnish a controlled substance to a state prisoner

(NRS 212.160).

At the preliminary examination the two other women who had used the rest room denied

that they had placed the bag of marijuana in the paper towel receptacle.

At the conclusion of the preliminary examination appellant was ordered to stand trial on

both charges. A pre-trial habeas challenge to the information resulted in the dismissal of the

charge of attempting to furnish a controlled substance to a prison inmate. In this appeal

appellant contends the district judge erred in failing to dismiss the charge of possession

because the evidence adduced before the magistrate was insufficient to establish probable

cause to hold her for trial.

[Headnote 1]

1. While it is conceded that one of the three women who used the rest room was

responsible for placing the contraband in the trash receptacle, to establish that the accused

may be tried for unlawful possession it is incumbent on the prosecution to offer proof that she

exercised dominion and control over the contraband. Doyle v. State, 82 Nev. 242, 415 P.2d

323 (1966).

[Headnotes 2-4]

Possession may be actual or constructive. The accused has constructive possession only if

she maintains control or a right to control the contraband. For instance, possession may be

imputed when the contraband is found in a location which is immediately and exclusively

accessible to the accused and subject to her dominion and control. Even if the accused does

not have exclusive control of the hiding place possession may be ��


imputed if she has not abandoned the narcotic and no other person has obtained possession.

The accused is also deemed to have the same possession as any person actually possessing the

narcotic pursuant to her direction or permission where she retains the right to exercise

dominion or control over the property. People v. Showers, 440 P.2d 939 (Cal. 1968).

[Headnote 5]

When the doctrine is applicable, the accused is deemed to have present constructive

possession of the property even though she does not have actual possession. In the instant

case, it cannot be said that she constructively possessed the contraband. Defendant's access to

the rest room was not exclusive nor did she maintain control over the location. Even if the

accused did, in fact, place the marijuana in the paper towel receptacle, any subsequent intent

to recover the marijuana would, from this record, be purely speculative, and could not sustain

the requisite probable cause to hold her for trial for constructive possession.

2. There is no conduct distinguishing the activities of the accused from that of the other

two women who used the ladies rest room during the time the bag of marijuana appeared in

the paper towel receptacle. There is nothing in this record to establish the “joint possession”

of the contraband, such as we found to exist in Maskaly v. State, 85 Nev. 111, 450 P.2d 790

(1969), and Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).

Dominion and control over the marijuana was not shown to be in appellant; thus, probable

cause to show possession was not established before the magistrate and the order of the trial

court refusing to grant habeas relief on the charge of possession was in error. Accordingly,

the trial court order is reversed.


____________

��89 Nev. 224, 224 (1973) Apgar v. Sheriff��

RICHARD CURTIS APGAR, Appellant, v. SHERIFF,


No.7333

June 4, 1973 510 P.2d 632

Appeal from an order denying a pre-trial writ of habeas corpus, Seventh Judicial District

Court, White Pine County; Roscoe H. Wilkes, Judge.


Defendant was convicted in the Seventh Judicial District, White Pine County, of first

degree murder, and he appealed. The Supreme Court, 89 Nev. 20, 504 P.2d 1076 (1973),

reversed and remanded for new trial, and defendant thereafter petitioned for habeas corpus

relief. The district court denied the petition, and defendant appealed. The Supreme Court held

that where habeas corpus challenge to sufficiency of testimony adduced at preliminary

examination to establish probable cause to hold defendant for trial on the charged offense was

not made until after defendant had been tried and convicted and thereafter granted new trial

on prosecutor's confession of error, challenge was untimely.

Affirmed.

Gary A. Sheerin, State Public Defender, Carson City, for Appellant.



1. Habeas Corpus. While habeas corpus is proper procedure for challenging probable cause to hold a defendant for trial, the

petition must be filed and finally determined prior to trial and conviction.

2. Habeas Corpus. Where habeas corpus challenge to sufficiency of testimony adduced at preliminary examination to

establish probable cause to hold defendant for trial on the charged offense was not made until after

defendant had been tried and convicted and thereafter granted new trial on prosecutor's confession of error,

challenge was untimely.

OPINION

Per Curiam:

Appellant, after being tried and convicted of first degree murder, was afforded a new trial

pursuant to the confession of error noted in Apgar v. State, 89 Nev. 20, 504 P.2d 1076 (1973).

Thereafter, he petitioned the district court for habeas relief and now appeals from the order

denying habeas.

At the habeas proceeding and on this appeal appellant's sole contention is that the

testimony adduced at his preliminary examination did not establish probable cause to hold

him for trial on the charged offense.

[Headnotes 1, 2]

While habeas is the proper procedure for challenging probable cause, the petition “must be

filed and finally determined �� 2


prior to trial and conviction.” Wehrheim v. State, 84 Nev. 477, 479, 443 P.2d 607, 608

(1968). Since appellant failed timely challenge the magistrate's findings the district court

order denying habeas is affirmed.

____________

��89 Nev. 226, 226 (1973) Lightenburger v. Gordon��

GERALDINE L. LIGHTENBURGER, et al., Appellants,

v. JOAN K. GORDON, et al., Respondents.

No. 5704

June 6, 1973 510 P.2d 865

Appeal from judgment on jury verdict for defendants; Eighth Judicial District Court, Clark

County; Richard L. Waters, Judge.

Action for wrongful death of person killed in airplane crash in California. The district

court found for defendants, and plaintiffs appealed. The Supreme Court, Thompson, C. J.,

held that where, subsequent to return of general verdict for defendants, in such action, which

was tried on basis of California law and in which recovery was sought on basis of either

theory that plaintiff's decedent was passenger for consideration and was killed due to

negligence of pilot or on theory that decedent was a guest and was killed by willful

misconduct of pilot, California Supreme Court, which had not previously passed upon the

issue, effectively nullified such state's airplane guest statute on ground that it denied equal

protection, remand for another trial was required.

Reversed and remanded for another trial.


Morton Galane, of Las Vegas, and Robert List, of Carson City, for Appellants.

Beckley, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents.

Appeal and Error.

Where, subsequent to return of general verdict for defendants, in action for wrongful death of person

killed in airplane crash in California, which was tried on basis of California law and in which recovery was

sought on basis of either theory that plaintiff's decedent was passenger for consideration and was killed due

to negligence of pilot or on theory that decedent was a guest and was � �� +�� )�� ) ��


killed by willful misconduct of pilot, California Supreme Court, which had not previously passed upon the

issue, effectively nullified such state's airplane guest statute on ground that it denied equal protection,

remand for another trial was required. Cal.Pub. Util.Code § 21406.

OPINION


Geraldine Lightenburger for herself, and on behalf of three minor children, commenced

this action to recover damages for the wrongful death of her husband, Dale, who was killed

when the Cessna 310 in which he was riding crashed and burned at the Los Angeles

International Airport on December 6, 1962. The pilot was James L. Gordon who also was

killed. The defendants to the action are the executor of his estate and his surviving wife.

The initial trial resulted in a jury verdict for the defendants which this court set aside.

Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728 (1965). The case was tried once more,

and again the jury favored the defendants. This appeal is from the judgment entered upon the

verdict of the second trial. A complete recitation of the facts surrounding the plane crash may

be found in our first opinion and will not be repeated here.

Each trial was presented to the court and jury on the basis of California law. The airplane

guest statute of that state deprives the heirs of a deceased airplane guest of any recovery

unless death resulted from the pilot's willful misconduct or intoxication. 1 The statute thus

withdraws from aircraft “guests,” that is, passengers who give no compensation for their ride,

the protection against negligently inflicted injuries. For this reason, the plaintiffs presented

two theories for recovery. First, that the decedent Lightenburger was a passenger for

consideration, and was killed by the negligence of the pilot Gordon. Second, that

Lightenburger's status was that of a guest, and that he was killed by the willful misconduct of

Gordon. Thus, the issues regarding the status of Lightenburger, and the standard of care ��

____________________

1

Cal. Pub. Util. Code § 21406. “A guest riding in or upon any aircraft without giving compensation, or any

other person, does not have any right of action for civil damages against the airman flying the aircraft or against

any other person otherwise legally liable for the conduct of the airman, on account of personal injury to, or the

death of, the guest during such ride, unless the plaintiff in the action establishes that the injury or death resulted

from the intoxication or willful misconduct of the airman.”


by which the liability of the pilot was to be determined, were critical issues in the case.

The jury returned a general verdict. Consequently, we do not know the reasoning upon

which that result was reached. Perhaps recovery was denied on the ground that Lightenburger

was a passenger and pilot negligence was not established; or because Lightenburger was

found to be a guest, and the pilot's willfull misconduct was not shown; or, because the pilot's

conduct, however characterized, did not proximately cause the crash.

On February 20, 1973, the California Supreme Court handed down its decision in Brown

v. Merlo, 506 P.2d 212, holding that the automobile guest statute of that state violates the

equal protection guarantees of the California and United States Constitutions. The court

reasoned that the proffered justifications for that statute—the protection of hospitality and the

prevention of collusive lawsuits—did not constitute a rational basis for the differential

treatment accorded by the statute's classification scheme. The “protection of hospitality”

rationale was found fatally defective since it did not explain why different treatment was

accorded automobile guests from all other guests; how the interest in protecting hospitality

could rationally justify the withdrawal of legal protection from guests, nor does it take

account of the prevalence of liability insurance coverage which effectively undermines any

rational connection between the prevention of suits and the protection of hospitality. The

“prevention of collusion” rationale was found to be too gross and overinclusive since the

statute bars the great majority of valid suits along with fraudulent claims. Id. at 215.

In voiding, as unconstitutional, the automobile guest statute of that state, the court also

effectively nullified the airplane guest statute which was modeled after the automobile

provision. 2

As noted before, the tragedy giving rise to this litigation occurred more than ten years ago.

The cause twice has been litigated in this State, and once in the federal system against a ��L� ��

____________________

2

Footnote 5 to that opinion: “California law does contain two other provisions under which non-paying

guests are generally deprived of a cause of action for negligence: the ‘airplane guest statute' (Pub. Util. Code, §

20406) and the ‘motorboat guest statute' (Harb. & Nav. Code, § 661.1), both of which are modeled after the

automobile guest statute attacked in the instant case. Although these statutes do place automobile guests on an

equal footing with some other guests in California, we cannot discern how automobile, airplane or motorboat

guests can rationally be distinguished from all other guests in relation to an asserted state interest in protecting

hospitality.”


different defendant, the United States. Lightenburger v. United States, 460 F.2d 391 (9th Cir.

1972). When Brown v. Merlo, supra, was decided, the instant matter had been retried,

appealed, briefed, orally argued, and submitted for decision. Consequently, the respondents

suggest that the matter should be put to rest notwithstanding that decision. This, we cannot

do.

The equal protection question posed by the plaintiff in Brown v. Merlo had never before

been directly passed upon by that court. See footnote 4 of that opinion. Consequently, that

decision did not work a change in the law of that jurisdiction. Rather, it expressed for the first

time the unconstitutionality of the automobile guest law and other guest statutes modeled

after it. 3 It is as though the statutes had never been passed. Brandenstein v. Hoke, 35 P. 562

(Cal. 1894). In Brandenstein, the California Supreme Court quoted directly from Norton v.

Shelby County, 118 U.S. 425, 442 (1886): “An unconstitutional act is not a law; it confers no

rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal

contemplation, as inoperative as though it had never been passed.”

With this concept in mind it is apparent that the judgment below must be set aside and this

cause remanded for still another trial. In the light of Brown v. Merlo, the plaintiffs-appellants

have the right to seek damages for the alleged negligence of the pilot Gordon without regard

to the status of the decedent Dale Lightenburger. Conversely, the defendants-respondents do

not have the protection afforded by the airplane guest law which withdraws therefrom

“guests,” unless death was due to the pilot's willful misconduct or intoxication. This opinion,

of course, does not fault either the trial court or counsel for a failure to be clairvoyant.

Reversed and remanded for another trial.

Mowbray, Gunderson, and Batjer, JJ., and Gezelin, D. J., concur.

____________________

3

Cases involving a change of law after trial court decision and pending appeal are collected in the Annot.,

111 A.L.R. 1317.

____________

��89 Nev. 230, 230 (1973) Turner v. Staggs��

MARGARET TURNER, as Legal Guardian of LIONEL EUGENE HOLLINS, YOLANDA

K. HOLLINS and MARVAR ADAMS, Appellant, v. JACK STAGGS, DR. H. Q. ADAMS

and CLARK COUNTY, Respondents.

No. 6770

June 6, 1973 510 P.2d 879

Appeal from summary judgment, judgment of dismissal and judgment entered pursuant to

a jury verdict. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski and

Howard W. Babcock, Judges.

Action was brought on behalf of minors for wrongful death of their mother against county,

hospital, the administrator thereof and physician. The district court entered summary

judgments dismissing complaint against county and administrator of hospital and a judgment

in favor of the physician and an appeal was taken. The Supreme Court, Batjer, J., held that

notice of claim requirements found in statutes requiring the presentation of a claim against

county within 6 months as a condition precedent to bringing action thereon as applied to

governmental torts deny equal protection since they have the effect of arbitrarily dividing all

tort-feasors into two classes: private tort-feasors to whom no notice of claim is owed and

governmental tort-feasors to whom notice is owed.

Affirmed in part; reversed and remanded in part.

Thompson, C. J., and Mowbray, J., dissented in part.



Beckley, DeLanoy & Jemison, of Las Vegas, for Respondents Jack Staggs and Clark

County.

James F. Pico, of Las Vegas, for Respondent Dr. H. Q. Adams.

1. Notice. Requirement of giving notice presupposes the existence of an individual capable of giving it.

2. Constitutional Law; Counties. The minority of surviving children, between ages of five and 13 years at the time of the death of their

mother, a former patient in county hospital excused compliance with statute requiring the filing of a

wrongful death claim within 6 months against county �� 5 �� ) ��


as condition precedent to bringing action; in addition the notice requirements of claim statute violated

rights of the minors to due process. NRS 41.031, 41.038, subd. 1, 244.245, 244.250; U.S.C.A. Const.

Amend. 14.

3. Constitutional Law; Counties. Notice of claim requirements found in statutes requiring the presentation of a claim against county within

6 months as a condition precedent to bringing action thereon as applied to governmental torts deny equal

protection since they have the effect of arbitrarily dividing all tort-feasors into two classes: private

tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.

NRS 41.031, 244.245, 244.250; Const. art. 1, § 2; art. 8, § 5; U.S.C.A.Const. Amend. 14.

OPINION


On October 1, 1966, Barbara Adams was admitted to the Southern Nevada Memorial

Hospital with a chronic kidney infection and hypertensive cardiovascular disease, and she

was discharged on October 14, 1966. She was readmitted and again discharged November 14,

1966, with the understanding that she would be transferred to Los Angeles, California, for

further treatment. Three days later she became ill and died while being transported by

ambulance to the hospital. James Y. Clarke, M.D., who performed the postmortem

examination, diagnosed the immediate cause of death to be pulmonary edema and congestion

due to probable acute renal insufficiency with uremia and electrolyte imbalance.

A claim was filed on behalf of the minor children of Barbara Adams with the Board of

County Commissioners of Clark County, Nevada, on November 2, 1967. After rejection of

the claim a complaint was filed on December 21, 1967, by Margaret Turner, as legal guardian

for the minors 1 against the Clark County Board of Commissioners, Southern Nevada

Memorial Hospital, 2 Jack Staggs, Administrator thereof, Clark ��<��M�

____________________

1

In her answer to interrogatories subscribed and sworn to on February 23, 1968, and filed in this action on

February 25, 1968, Margaret Turner alleges that she was appointed the legal guardian of the minors by the

Eighth Judicial District Court; however, this court finds nothing in the record before it to verify that allegation.

2

This court has held that county hospitals, established pursuant to statutory authority [NRS 450.010 et seq.],

are without legal entity, and thus not subject to suit for tort. Bloom v. So. Nev. Hospital, 70 Nev. 533, 275 P.2d

885 (1954); McKay v. Washoe General Hospital, 55 Nev. 336, 33 P.2d 755 (1934). Thus, the dismissal of

Southern Nevada Memorial Hospital from the suit appears to have been mandated by this court's prior decisions.


County and Dr. H. Q. Adams, for the wrongful death of Barbara Adams.

The cause of action against the board of county commissioners in their individual capacity

was dismissed by summary judgment dated January 13, 1970, and no appeal has been taken

from that judgment. The complaint against Clark County was dismissed on motion for

summary judgment on August 6, 1971, for failure to present a timely claim pursuant to NRS

244.245 and NRS 244.250. 3 See also, NRS 41.031 and NRS 41.036. On August 25, 1971,

the complaint against Jack Staggs was dismissed pursuant to NRCP 41(b). A trial was held on

the alleged malpractice of Dr. H. Q. Adams and the jury returned a defense verdict.

In this appeal it is contended that the district court erred (1) in granting summary judgment

in favor of Clark County and its hospital; (2) in dismissing the complaint against Jack Staggs

as administrator of Southern Nevada Memorial Hospital; 4 and (3) in giving certain

instructions to the jury.

1. We cannot consider issues 2 and 3 because we have not been favored with a transcript

of the proceedings in the district court, nor has the appellant submitted a settled and approved

statement of the evidence or proceedings. NRCP 75(n).

2. We direct our attention to the summary judgment. The �� @��A��*��

____________________

2

NRS 244.245: “1. No person shall sue a county in any case for any demand, unless be 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. If the party suing recover in the action more than the board allowed, or offered to allow, the board and

the county auditor shall allow the amount of the judgment and costs as a just claim against the county. If the

party suing shall not recover more than the board and the county auditor shall have offered to allow him, then

costs shall be recovered against him by the county, and may be deducted from the demand.”

NRS 244.250: “1. All unaudited claims or accounts against any county shall be presented to the board of

county commissioners within 6 months from the time such claims or accounts become due or payable.

“2. No claim or account against any county shall be audited, allowed or paid by the board of county

commissioners, or any other officer of the county, unless the provisions of subsection 1 are strictly complied

with.”

4

In Hughey v. Washoe County, 73 Nev. 22, 306 P.2d 1115 (1957), this court held that a county is the party

legally responsible for the obligations of a county hospital. Under the doctrine of respondeat superior, it would

appear that dismissal of the complaint against Jack Staggs, Administrator of the Southern Nevada Memorial

Hospital, was proper.


claim against Clark County was not filed until 13 months had elapsed after the death of

Barbara Adams. NRS 244.250 requires that a claim against a county must be filed within 6

months after a cause of action arises.

In Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392 (1964), this court held that the

timely filing of a claim was a condition precedent to the commencement of an action against

a county. Barney relied upon the reasoning in Artukovich v. Astendorf, 131 P.2d 831 (Cal.

1942). Artukovich in turn relied in part on the principle that neither the state nor any of its

political subdivisions may be sued in the absence of specific statutory permission. In 1965 the

State of Nevada, acting through its legislature, waived its immunity from liability and action

and consented to have its liability determined in accordance with the same rules of law as are

applied to civil actions against individuals and corporations. Stats. of Nev. 1965, ch. 505, p.

1413, codified as NRS 41.031. Furthermore the enactment placed all political subdivisions in

a similar position. NRS 41.031. 5

[Headnote 1]

The requirement of giving notice presupposes the existence of an individual capable of

giving it. McCrary v. City of Odessa, 482 S.W.2d 151 (Tex. 1972). To hold otherwise would

be to disregard reality. Cf. Walgreen Co. v. Industrial Commission, 153 N.E. 831 (Ill. 1926);

Lineberry v. Town of Mebane, 13 S.E.2d 429 (N.C. 1941). NRS 244.245 contains no

provision for the filing of a claim by anyone other than the claimant. At the time of their

mother's death the minor children were between the ages of 5 and 13 years. In many

jurisdictions children of tender years, because they are powerless to ��#��

____________________

5

NRS 41.031: “The State of Nevada hereby waives its immunity from liability and action and hereby

consents to have its liability determined in accordance with the same rules of law as are applied to civil actions

against individuals and corporations, except as otherwise provided in NRS 41.032 to 41.038, inclusive, provided

the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive, or the limitations of NRS 41.010.

The State of Nevada further waives the immunity from liability and action of all political subdivisions of the

state, and their liability shall be determined in the same manner, except as otherwise provided in NRS 41.032 to

41.036, inclusive, provided the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive. An

action may be brought under this section against the State of Nevada, any agency of the state, or any political

subdivision of the state. In an action against the state or any agency of the state, the State of Nevada shall be

named as defendant, and the summons shall be served upon the secretary of state.” [Emphasis added.]


act, have been excused from compliance with notice provisions. Simpson v. City of Abilene,

388 S.W.2d 760 (Tex.Civ. App. 1965), (7 years old). See also, City of Barnesville v. Powell,

183 S.E.2d 55 (Ga.App. 1971), (4 years old); McDonald v. City of Spring Valley, 120 N.E.

476 (Ill. 1918), (7 years old); Lazich v. Belanger, 105 P.2d 738 (Mont. 1940), (7 years old);

Murphy v. Village of Ft. Edward, 107 N.E. 716 (N.Y. 1915), (5 years old); Webster v. City of

Charlotte, 22 S.E.2d 900 (N.C. 1942), (8 years old); 18 E. McQuillin, The Law of Municipal

Corporations § 53.159 (3rd rev. ed. 1963).

[Headnotes 2, 3]

We could conclude that minority alone will excuse compliance with the notice

requirements of NRS 244.245 and NRS 244.250 (City of Houston v. Bergstrom, 468 S.W.2d

588 (Tex.Civ.App. 1971); McCrary v. City of Odessa, supra; Grubaugh v. City of St. Johns,

180 N.W.2d 778 (Mich. 1970)) and dispose of this case upon the ground that the notice

requirements of our claim statutes violate the rights of these minors to due process guaranteed

by the Fourteenth Amendment of the United States Constitution. However, we believe that

the notice of claim requirements found in NRS 244.245 and NRS 244.250 as applied to

governmental torts deny equal protection guaranteed by the United States Constitution. 6

Within our present scheme of government, claim statutes serve no real beneficial use

(Grubaugh v. City of St. Johns, supra) but they are indeed a trap for the unwary. NRS

41.038(1). If we follow Barney, the minor's cause of action will be barred. They will be

precluded from enforcing a liability created by statute for their benefit. Such construction of

NRS 244.245 creates invidious discrimination and amounts to a denial of due process and

equal protection of the law.

The court in Artukovich claims to have been following the “great weight of authority,” and

that may have been true in 1942, but since then, many jurisdictions have limited or

abandoned the doctrine of sovereign immunity, either by legislative enactments or judicial

decisions. Likewise, claim statutes have been found to violate the equal protection provision

of ��,��*��L� ��

____________________

6

The question of constitutionality of the claim statute was not properly raised before this court, and had not

been ruled upon below. After the question was urged in oral argument we remanded the case to the trial court for

a decision on that issue. The briefs filed on remand did not convince the lower court that Barney v. County of

Clark, supra, need be reviewed as to that point. We deem otherwise.


the Fourteenth Amendment of the United States Constitution and have been declared

unconstitutional. Reich v. State Highway Department, 194 N.W.2d 700 (Mich. 1972);

Friedman v. Farmington Township School District, 198 N.W.2d 785 (Mich.App. 1972);

Crook v. Patterson, 201 N.W.2d 676 (Mich.App. 1972).

The stated object of NRS 41.031 is to waive the immunity of governmental units and

agencies from liability for injuries caused by their negligent conduct, thus putting them on an

equal footing with private tort-feasors. However, the notice provisions of NRS 244.245 and

NRS 244.250 have the effect of arbitrarily dividing all tort-feasors into classes of tortfeasors:

(1) private tort-feasors to whom no notice of claim is owed and (2) governmental tort-feasors

to whom notice is owed.

In Reich v. State Highway Dept., supra, the Michigan Supreme Court said: “This diverse

treatment of members of a class along the lines of governmental or private tort-feasors bears

no reasonable relationship under today's circumstances to the recognized purpose of the act. It

constitutes an arbitrary and unreasonable variance in the treatment of both portions of one

natural class and is, therefore, barred by the constitutional guarantees of equal protection.

“Just as the notice requirement by its operation divides the natural class of negligent

tort-feasors, so too the natural class of victims of negligent conduct is also arbitrarily split

into two subclasses; victims of governmental negligence who must meet requirement, and

victims of private negligence who are subject to no such requirement.” 194 N.W.2d at 702.

Contrary to the mandate of Art. 8, § 5 of the Nevada Constitution 7 and the intention of the

legislature to place victims of negligent conduct on equal footing (NRS 41.031), failure to

give the 6 month statutory notice arbitrarily bars the victims of governmental tort while the

victims of private tort suffer no such bar.

Such arbitrary treatment clearly violates the equal protection guarantees of the United

States Constitution. See Art. 1, § 2, Nevada Constitution.

The statutory provisions of this state which provide that no �� "��

____________________

7

In Lincoln County v. Luning, 133 U.S. 529, 531 (1890), the High Court, specifically referring to Art. 8, § 5,

of the Nevada Constitution, held: “[T]hat this section is not to be limited to private corporations is evident not

alone from the generality of its language and from the title of the article, but also from several sections therein in

which municipal corporations are expressly named.”


person shall sue a governmental entity of this state for a demand arising out of governmental

tort unless he first presents a claim within 6 months from the time such tort occurred are void

and of no effect.

The judgment of the district court dismissing the complaint against Clark County is

reversed and the cause is remanded for further proceedings.

The judgment dismissing the complaint against Jack Staggs and the judgment entered in

favor of Dr. H. Q. Adams, pursuant to a jury verdict, are affirmed.

Gunderson, J., concurs.


I agree with Justices Batjer and Gunderson that the questioned statute is unconstitutional. I

add, however, my additional thoughts for I believe that we can consider this case and reach

the same result for the further reasons stated. For the purpose of these stated reasons I

respectfully recite the facts in my own manner in order to provide the posture which will be

explained.

A complaint was filed December 21, 1967 against the Clark County Commissioners,

Southern Nevada Memorial Hospital, Jack Staggs, Administrator thereof, and Dr. H. Q.

Adams, for the wrongful death of one Barbara Adams, mother of the real minor plaintiffs by

their legal guardian.

Barbara Adams was admitted to the hospital on October 1, 1966 with chronic kidney

infection and hypertensive cardiovascular disease; she was discharged on October 14, 1966.

A second time she was admitted; she was discharged November 14, 1966 in an improved

condition with the understanding that she would be transferred to Los Angeles for further

treatment. Three days later she became ill and died while being transported by ambulance to

the hospital. The postmortem examination by Dr. Clarke attributed the immediate cause of

death to be pulmonary edema and congestion due to probable acute renal insufficiency with

uremia and electrolyte imbalance. Barbara was pronounced dead on arrival at the hospital on

November 17, 1966.

A claim was filed on behalf of the minor children of Barbara with the appropriate county

board on November 2, 1967. After rejection, a civil action against the respondents and others

was commenced on December 21, 1967.

The claim against the county commissioners in their individual capacity was dismissed by

summary judgment dated January 13, 1970 and the action against Clark County was �� *��"�� =�� $%��&!!�&!(��$%��&!!�&(/��9��*��&(�� =�� $%�:�!�>�?��8��


dismissed on motion for summary judgment on August 6, 1971 or failure to present a timely

claim pursuant to NRS 244.245 and NRS 244.250. 1 On August 25, 1971, a dismissal

pursuant to NRCP 41(b) was entered as to Jack Staggs. A trial was had as to the alleged

malpractice of Dr. H. Q. Adams wherein the jury returned a defense verdict.

Three main issues were raised for my consideration. 2

1. Did the court err in granting summary judgment as to Clark County and its hospital?

2. Did the court err in dismissing the claim against Jack Staggs as Administrator of

Nevada Southern Memorial Hospital?

3. Did the court err in giving certain instructions to the jury?

We have no transcript presented to us, thus I cannot consider Issues 2 and 3. The central

issue now is directed to the first point.

1. I glean from this record that the deceased was black, sick and impoverished when she

died leaving three children in their early minority. The claim against the county and the

hospital was not filed for 13 months after her death. NRS 244.250 requires that a claim

against a county must be filed within 6 ��A��'/$��/!

____________________

1

244.245 Condition precedent to suit against county for claim.

1. No person shall sue a county in any case for any demand, unless he shall first present his claim or demand

to the board of county commissioners and the county auditor for allowance and approval, and if they fail or

refuse to allow the same, or some part thereof, the person feeling aggrieved may sue the county.

2. If the party suing recover in the action more than the board allowed, or offered to allow, the board and the

county auditor shall allow the amount of the judgment and costs as a just claim against the county. If the party

suing shall not recover more than the board and the county auditor shall have offered to allow him, then costs

shall be recovered against him by the county, and may be deducted from the demand.

244.250 Unaudited claims to be presented within 6 months.

1. All unaudited claims or accounts against any county shall be presented to the board of county

commissioners within 6 months from the time such claims or accounts become due or payable.

2. No claim or account against any county shall be audited, allowed or paid by the board of county

commissioners, or any other officer of the county, unless the provisions of subsection 1 are strictly complied

with.

2

The question of the constitutionality of the claim statute was not properly raised before this court, and had

not been ruled upon below. We therefore remanded the case to the trial court for a decision on that issue. The

briefs filed on remand did not convince the lower court that Barney v. County of Clark, infra, need be reviewed

as to that point.


months and under Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392 (1964), a claim

must be filed as a condition precedent to the commencement of an action against the county.

That case was founded upon Artukovich v. Astendorf, 131 P.2d 831 (Cal. 1942), which

marked by a spirited division of the California Supreme Court (4-3) affirmed the established

weight of authority that an action against a public entity cannot be filed even by a minor

unless the claim statute, if there be one, is first observed.

This case, however, poses a different problem. A claim was filed but not within the

statutory 6 months. No reason is given for the failure to file within the statutory period. It is,

however, contended that the statutory 6-month period was tolled during the children's

minority by reason of NRS 11.250 which provides that if a person is entitled to bring an

action other than for the recovery of real property, the time within which the cause of action

must be commenced is tolled if that person is within the age of 21 years. This court has

adopted the rule expressed in Artukovich v. Astendorf, supra, and I therefore feel compelled

to maintain the continuity established by the respected Supreme Court of California. That

court later established, in Williams v. Los Angeles Metropolitan Transit Auth., 440 P.2d 497

(Cal. 1968), that where the filing of a claim in advance of suit is required, that requirement is

suspended during the period of minority if the action is “mentioned” in the limitation statute

as one the person could bring. It is so mentioned in Nevada's statutes, NRS 41.036(3) 3 and

NRS 11.190(5)(b). 4

In Williams v. Los Angeles Metropolitan Transit Auth., �� ) �� "��) ��

____________________

3

41.036(3):

3. Every claim against any other political subdivision of the state shall be presented, within 6 months from

the time the cause of action accrues, to the governing body of that political subdivision. No action may be

brought unless the governing body refuses to approve or fails within 90 days to act upon the claim.

4

11.190(5)(b): Periods of limitations prescribed. Actions other than those for the recovery of real property,

unless further limited by NRS 11.205 or by or pursuant to the Uniform Commercial Code, can only be

commenced as follows:

. . .

5. Within 1 year:

. . .

(b) Actions or claims against a county, incorporated city, town or other political subdivision of the state

which have been rejected by the board of county commissioners, city council or other governing body, as the

case may be, after the first rejection thereof by such board, city council or other governing body, or the

expiration of the time limited for failure to act by subsection 3 of NRS 41.036.


supra, the plaintiff filed the required claim within the prescribed time but failed to file his

action against the public entity within the 6 months required after rejection of the claim. I

accept, by analogy, the holding in Williams v. Los Angeles Metropolitan Transit Auth., supra,

since California's tolling statute during minority is the same as ours.

2. I am not disturbed by the language of Barney v. County of Clark, supra, which

emphasizes timely filing since the question of timeliness was not an issue in that case any

more than in Kelleher v. Ephrata School District, 355 P.2d 989 (Wash. 1960), cited therein.

The point involved in both cases was whether a claim must be filed at all. Timeliness was not

the question.

3. Nor am I concerned with the fine-line distinction of whether the claim statute is a

statute of limitation or a procedural roadblock as a condition precedent to suit. That question

was considered in Myers v. Stevenson, 270 P.2d 885, 889 (Cal.App. 1954), and discarded as

not being controlling as to the merits of the case. The trend is to construe statutes in such

manner as to effectuate the long-recognized principle that children are to be protected during

their minority from the destruction of their rights by the running of the statutes of limitation.

Williams v. Los Angeles Metropolitan Transit Auth., supra; Los Angeles City School District

v. Superior Court, 88 Cal.Rptr. 286 (Cal.App. 1970). The majority will argue that the

Williams case, supra, does not apply, that there is a difference between a statute of limitation

and a condition precedent to suit. The minors here are entitled to the benefits of the tolling

statute. Whether the claim statute be called a statute of limitations or a condition precedent is

of no moment. A review of other authorities reflects the foretold positive trend against the

rigidity of the claim statutes, particularly as they affect the rights of minors.

Thompson, C. J., with whom Mowbray, J., agrees, dissenting in part:

I would affirm the summary judgment for Clark County and, therefore, dissent from that

aspect of the Court's opinion.

1. The timely filing of claims with the Board of County Commissioners is a precondition

to the existence of a cause of action against the County. Barney v. County of Clark, 80 Nev.

104, 389 P.2d 392 (1964). The minority of the children of the decedent does not excuse

noncompliance nor extend the time for compliance, since proper claims could have been

timely filed by their legal representative. Although it is true that the �� $%��&(/5�:��;��


period of disability of a minor shall not be part of the time limited for the commencement of

an action, NRS 11.250; Parker v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972),

that provision applies only when considering the affirmative defense of the statute of

limitations, and does not bear upon the duty of minor claimants through their legal

representative, to timely file their claims as a condition precedent to the existence of a cause

of action. As noted in Barney v. County of Clark, supra, “[w]e are not concerned therefore

with a statute in the nature of a statute of limitations; rather we are concerned with the

performance of a necessary condition precedent to suit.” Id. at 106.

2. The majority opinion voids all statutes precluding suit against a governmental entity for

any tort demand unless a claim is first presented. This sweeping declaration nullified NRS

41.036, NRS 244.245 to 244.255, NRS 268.020 and, perhaps, others. Barney v. County of

Clark, supra, and Hart v. City of Las Vegas, 73 Nev. 29, 307 P.2d 617 (1957), are silently

overruled. Moreover, it renders meaningless, so far as a claim statute is concerned, a

substantial body of case law dealing with timeliness and substantial compliance with the

intendment of the statute. Derouen v. City of Reno, 87 Nev. 606, 491 P.2d 989 (1971);

Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45 (1969); City of Boulder City v. Miles, 85

Nev. 46, 449 P.2d 1003 (1969); Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969); Rice v.

Clark County, 79 Nev. 253, 382 P.2d 605 (1963); City of Reno v. Fields, 69 Nev. 300, 250

P.2d 140 (1952), and Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040 (1938). These cases

preserved the integrity of the legislative scheme and at the same time honored the rights of

claimants who had met the underlying purposes of the statute. Their rights were not denied

for technical or insubstantial reasons. Whenever a sensible explanation was offered for failing

to comply with a claim statute requirement, that explanation was accepted.

It is not per se bad for a court to set aside statutes and ignore case precedent. It is,

however, conduct calling for extreme caution. Solid reasons must exist. I perceive no such

reasons in the matter at hand. The majority of this Court find that claim statutes violate the

command of the Equal Protection Clause of the Federal Constitution. With due deference, I

suggest that the Equal Protection Clause does not bear upon the matter.

The legislature has a wide discretion to enact laws which �� K��


affect some groups of citizens differently than others. A statutory discrimination will not be

set aside if any state of facts reasonably may be conceived to justify it. McGowan v.

Maryland, 366 U.S. 420 (1961). The purpose of a claim statute is to enable the governmental

agency to make an early investigation of the claim, of the claimant, and to marshal evidence

promptly at a time when it is possible to do so. City of Reno v. Fields, 69 Nev. 300, 250 P.2d

140 (1952); Brown v. Board of Trustees, Etc., 104 N.E.2d 866 (N.Y. 1952). This purpose

surely is reasonable and not an arbitrary exercise of legislative power. I cannot find it to be

irrational nonsense.

All persons injured through the negligence of the state or its political subdivisions have

been granted the right to bring suit (except where immunity is retained) and this right is

granted equally and without discrimination on any basis whatsoever. NRS 41.031; State v.

Silva, 86 Nev. 911, 478 P.2d 591 (1970). This is equality under the same conditions and

among persons similarly situated. Boyne v. State ex rel. Dickerson, 80 Nev. 160, 390 P.2d

225 (1964). And, contrary to the view of the majority, the Equal Protection Clause does not

require equal treatment of private persons and the State. Tustin Heights Ass'n. v. Board of

Supervisors, 339 P.2d 914 (Cal. App. 1959). This is the thrust of Derouen v. City of Reno, 87

Nev. 606, 491 P.2d 989 (1971), where we upheld a city claim statute against the contention

that a city should not be treated differently than a private corporation. It also is the teaching of

State v. Silva, supra, where we held that the State could limit recovery to $25,000 for each

claimant without violating the concept of equal protection. Are these recent decisions no

longer viable? Have they also been cast aside sub silentio? If it is constitutionally permissible

for the State to limit recovery (State v. Silva, supra) how can it be constitutionally

impermissible for the State to require that a claim be filed?

As I read the majority opinion it voids the claim statutes insofar as they apply to

governmental torts. Are these statutes still operative otherwise? This wholesale slaughter of a

complete statutory scheme and of case precedent, both old and recent, is conduct unsuited to

the function of this Court. Respectfully, I dissent.

____________

��89 Nev. 242, 242 (1973) Zweifel v. State��

MERLE I. ZWEIFEL, Appellant, v. THE


No. 6949

June 6, 1973 510 P.2d 872

Appeal from judgment of conviction. Sixth Judicial District Court, Humboldt County;

John W. Barrett, Judge.

Defendant was convicted in the district court of offering a false instrument for recording,

and he appealed. The Supreme Court, Zenoff, J., held that under statute providing that “Every

person who shall knowingly procure or offer any false or forged instrument to be filed,

registered or recorded in any public office, which instrument, if genuine, might be filed,

registered or recorded . . . shall be punished. . . ,” the term “false” is not synonymous with

“forged,” so that defendant, who alleged that the instruments bore the true signature of the

maker and therefore were not forged, could be convicted where the information contained in

the certificates was false.

Affirmed.


George G. Holden, of Battle Mountain, for Appellant.

Robert List, Attorney General, and Herbert F. Ahlswede, Chief Deputy Attorney General,

Criminal Division, for Respondent.

1. Fraud. Under statute providing that “Every person who shall knowingly procure or offer any false or forged

instrument to be filed, registered or recorded in any public office, which instrument, if genuine, might be

filed, registered or recorded . . . shall be punished. . . ,” the term “false” is not synonymous with “forged,”

so that defendant, who alleged that the instruments bore the true signature of the maker and therefore were

not forged, could be convicted where the information contained in the certificates was false. NRS

239.330.

2. Criminal Law. Newspaper publicity did not deprive defendant of a fair trial where there was meticulous jury selection,

and where defendant made no challenges for cause and no peremptory challenges.

OPINION


Merle Zweifel appeals from his conviction on 16 counts of offering a false instrument for

recording in contravention of $%��&@ �@@/�� B�07�� 2


NRS 239.330 which provides: “Every person who shall knowingly procure or offer any false

or forged instrument to be filed, registered or recorded in any public office, which instrument,

if genuine, might be filed, registered or recorded . . . shall be punished. . . .”

The instruments were certificates of location of placer claims. Each certificate recited that

a “location monument stands 200 feet due north of the center of the southern line of the

claim” and that “not less than $20 was expended for trenching and sampling minerals.”

The state contended that the monuments were not erected nor the trenching and sampling

done at all, let alone in compliance in any respect with NRS Chapter 517 and appropriate

sections thereof relating to placer claims.

Zweifel alleges that the instruments he filed were genuine, that is, bore the true signature

of the maker and therefore were not forged, that the term “false” as used in the statute is

synonymous with “forged,” and that consequently he could not be guilty of the charges even

if the information contained in the certificates was false.

Other grounds of error will also be discussed.

[Headnote 1]

1. Zweifel's position regarding the definition of the term “false” is not well taken. The

United States Supreme Court in United States v. Staats, 49 U.S. (8 How.) 41, 47 (1850), long

ago ruled that a genuine instrument containing a false statement of facts was a false writing

and the term was not to be considered synonymous with a forged writing. Effect must be

given, if possible, to every word of a statute, Ex Parte Prosole, 32 Nev. 378, 108 P. 630

(1910). Appellant's interpretation that a “false” instrument is not one containing false

information but instead one which is “forged” would render the term “false” in the statute

redundant and with no meaning or effect. We therefore, supported by United States v. Staats,

supra, refuse that interpretation.

[Headnote 2]

2. Zweifel further complains that newspaper publicity deprived him of a fair trial. We do

not find support for his complaint in the record, although a certain amount of publicity did

result from unique charges. The publicity here did not exceed that of Pacheco v. State, 82

Nev. 172, 414 P.2d 100 (1966), wherein we held that the rules of fair play had not been

offended nor was the adverse publicity of such offensive nature as to bring that case within

Sheppard v. Maxwell, 384 U.S. 333 (1966). Furthermore, the meticulous jury selection ��


on this subject obviated a prejudiced jury. In fact, Zweifel made no challenges for cause and

no peremptory challenges.

3. The real nub of this case is whether Zweifel in truth erected the required monuments

and performed the required trenching and sampling that NRS Chapter 517 requires. He

represented in the certificates that the monuments were placed in the described locations and

that the other work was done but did not describe the kind of monument or the nature of the

work. He testified that he erected monuments made of lath. Contrary to that testimony the

Humboldt County Surveyor (the claims were located in Humboldt County) testified that less

than one month after the claims were supposedly located and filed he searched the areas

involved and found no monuments of any kind even remotely in the area of the described

sites nor any evidence of trenching or sampling. Only a few pieces of scrap lath were seen

strewn generally near a section line 200 feet south of the places where the monuments were

supposedly located. Obviously the jury chose to believe that the defendant had not erected the

monuments and that the representation in the certificates that he had done so rendered them

false.

4. We find no merit in other asserted grounds of error.

Affirmed.


____________

��89 Nev. 244, 244 (1973) Johnson v. Johnson��

DOUGLAS L. JOHNSON, Appellant, v.

SHARON JOHNSON, Respondent.

No. 7078

June 6, 1973 510 P.2d 625

Appeal from findings of fact, conclusions of law and decree of divorce of the Second

Judicial District Court, Washoe County; John W. Barrett, Judge.

The Supreme Court, Zenoff, J., held, inter alia, that trial judge was well within his

discretion in his determination of the amount of the increase in value of drive-in restaurant

businesses during marriage, and in allocating that amount between separate and community

property.

Affirmed.

Bissett & Logar, of Reno, for Appellant.


Echeverria & Osborne, Chartered, and Lew W. Carnahan, of Reno, for Respondent.

1. Divorce. Determination in divorce action regarding amount of increase in value of drive-in restaurant businesses

during marriage was supported by substantial evidence.

2. Husband and Wife. Increase in value of separate property of spouses during marriage should be apportioned between the

separate property of the owner and the community property of the spouses.

3. Husband and Wife. Where factors of capital investment, and of the labor, skill and industry of one or both spouses,

contributed to the increase in value of a business, such increase should be apportioned between the separate

and the community property.

4. Husband and Wife. There are two basic approaches to the problem of apportionment of separate and community property; the

first approach is to allocate to separate property a reasonable rate of return on the original capital

investment, with any increase above the amount arrived at in this fashion being allocated to community

property; the second approach is to deduct from the total income or increase in value the amount of

reasonable compensation received by the owner of the property for his services rendered, with the balance

being allocated to separate property.

5. Husband and Wife. Courts are not bound by either of the two basic approaches to the problem of apportionment between

separate and community property, but may select whichever will achieve substantial justice between the

parties.

6. Husband and Wife. Allocation in divorce action to separate property of a reasonable rate of return on the original capital

investment, with any increase above the amount arrived at being allocated to community property, was not

inherently unfair and did not contravene substantial justice.

7. Husband and Wife. Trial judge was well within his discretion in divorce case in his determination of the amount of the

increase in value of drive-in restaurant businesses during marriage, and in allocating that amount between

separate and community property.

OPINION


Before his marriage appellant acquired two franchised A & W drive-in restaurants. He

incorporated his business in June of 1965, forming Doug Johnson, Inc., to which were

transferred all the assets relating to the A & W drive-ins.


Thereafter, on September 9, 1965, appellant and respondent were married. Subsequent to

the marriage Doug Johnson, Inc., obtained two more drive-ins. This was done largely with the

cash flow from the previously acquired property. Between the date of the marriage and the

date of the divorce the value of the business enterprises increased substantially. The problems

raised in this appeal are threefold: First, whether the trial court erred in its determination of

the amount of the increase in value; second, whether that increase in value should have been

apportioned between community property and appellant's separate property; and third, if so,

did the trial court err in the manner in which it made the allocation.

[Headnote 1]

1. It is the exclusive province of the court, sitting without a jury, to determine facts on

conflicting evidence and its findings, if supported by substantial evidence should not be

disturbed on appeal. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). We have

reviewed the record and find the trial court's determination regarding the amount of the

increase in value of the business during the marriage is supported by substantial evidence.

2. The long-standing rule of Lake v. Bender, 18 Nev. 361, 4 P. 711 (1894), is that if

profits from separate property come mainly from the property itself rather than from the joint

efforts of the husband or wife or either of them, they belong to the owner of the separate

property although the labor and skill of one or both may have been given to the business. If

profits, however, come mainly from the efforts or skill of one or both spouses, they belong to

the community.

[Headnotes 2, 3]

We now depart from the all-or-nothing approach of Lake v. Bender, supra, and announce

the rule that the increase in the value of separate property during marriage should be

apportioned between the separate property of the owner and the community property of the

spouses. Profit or increase in value of property may result either from the capital investment

itself, or from the labor, skill and industry of one or both spouses or from both the investment

of separate property and the labor and skill of the parties. Where both factors contribute to the

increase in value of a business, that increase should be apportioned between separate and

community property. The rule we announce today is necessary in order to prevent the inherent

injustice of denying the owner of separate property a reasonable return on the investment

merely because the �� 0�� 2��


increase in value results “mainly” from the labor, skill or industry of one or both spouses.

3. Appellant believes the trial court erred in its method of making the apportionment

between separate and community property. There are two basic approaches to the problem of

apportionment.

[Headnote 4]

The first approach is to allocate to separate property a reasonable rate of return on the

original capital investment. Any increase above the amount arrived at in this fashion is to be

allocated to community property. Pereira v. Pereira, 103 P. 488 (Cal. 1909).

The second approach is to deduct from the total income or increase in value, the amount of

reasonable compensation received by the owner of the property for his services rendered.

That amount is said to have represented the community interest. The balance is all allocated

to separate property. Van Camp v. Van Camp, 199 P. 885 (Cal.App. 1921).

[Headnote 5]

Both approaches have vitality and may be applied as circumstances warrant. Courts of this

state are not bound by either the Pereira or the Van Camp approach, but may select

whichever will achieve substantial justice between the parties. Beam v. Bank of America, 490

P.2d 257 (Cal. 1971).

[Headnotes 6, 7]

Having reviewed the record we find that the application by the trial court of the Pereira

formula was not in the circumstances of this case inherently unfair nor did it contravene

substantial justice.

In its determination of the amount of the increase in value of the business during the

marriage and in making the allocation of that amount between separate and community

property as he did, the trial judge was well within his discretion.

Affirmed.


____________

��89 Nev. 248, 248 (1973) Lucas v. Page��

WILLIAM J. LUCAS and ROGENE LUCAS,

Appellants, v. LEHMANN M. PAGE, Respondent.

No. 7024

June 6, 1973 510 P.2d 868

Appeal from orders denying appellants' motions for leave to file a counterclaim and for

continuance of trial setting. Eighth Judicial District Court, Clark County; Thomas J.

O'Donnell, Judge.

The Supreme Court, Zenoff, J., held that an order denying a motion for leave to file a

counterclaim and for a continuance is not appealable; it does not constitute a “final judgment”

from which an appeal is proper.

Appeal dismissed.

John Marshall, of Las Vegas, for Appellants.

Denton and Monsey, of Las Vegas, for Respondent.

1. Appeal and Error. Order denying a motion for leave to file a counterclaim and for a continuance is not appealable; it does

not constitute a “final judgment” from which an appeal is proper. NRCP 72(b).

2. Appeal and Error. No appeal will be allowed unless authorized by statute or rule of court. NRCP 72(b).

OPINION


On October 16, 1970 Lehmann Page sued the Lucases on a promissory note for $8,000.00.

The note had been executed by the Lucases in favor of Page as a compromise settlement of a

previous lawsuit which involved the dissolution of their business relationship in an insurance

adjustment enterprise in Las Vegas. In the present action the Lucases moved for leave to file a

counterclaim, the basis of which alleged the same facts of the lawsuit that had already been

determined both at trial and on appeal in the previous lawsuit. Las Vegas Insurance Adjusters

Inc. v. Page, 88 Nev. 16, 492 P.2d 616 (1972). In general, the Lucases claim that they did not

know at the time of the settlement that Lehmann Page and Barbara Page, at that time husband

and wife, had misappropriated $33,363.00 from ��

��89 Nev. 248, 249 (1973) Lucas v. Page��

the insurance business and that had they possessed this information they would not have

signed the note. They further claimed that since a judgment had been entered against Barbara

Page for $33,363.00 the $8,000.00 note should be set off against that amount.

This appeal is from the denial of the motion for leave to file the counterclaim and for a

continuance of the trial setting.

[Headnotes 1, 2]

1. At issue is whether an order denying a motion for leave to file a counterclaim and for a

continuance is an appealable order. We hold that it is not. No appeal will be allowed unless

authorized by statute or by rule of court. Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441,

443, 456 P.2d 450, 451 (1969). The right of appeal has been fixed by NRCP 72(b) 1 and an

appeal is not allowed if it is outside the scope of that rule. Casino Operations, Inc. v. Graham,

86 Nev. 764, 765, 476 P.2d 953, 954 (1970). The order complained of in this appeal is

beyond the scope of that rule. It does not constitute a “final judgment” from which an appeal

is proper. Midstate Hauling Co. v. Liberty Mutual Insurance Co., 189 So.2d 826 (Fla.App.

1966); Pester v. Lowe, 165 N.W.2d 95 (Neb. 1969). Cf. Farmers Cooperative Ins. Co. v.

Hicks, 182 S.E.2d 895 (Ga. 1971).

This appeal is premature.

Appeal dismissed.


____________________

1

NRCP 72(b):

“(1) From a final judgment in an action or proceeding in the court in which the judgment is rendered.

(2) From an order granting or refusing a new trial, or granting or refusing to grant or dissolving or refusing to

dissolve an injunction, or appointment or refusing to appoint a receiver, or vacating or refusing to vacate an

order appointing a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to

change the place of trial, and from any special order made after final judgment.

(3) From an interlocutory judgment, order or decree made or entered in actions to redeem real or personal

property from a mortgage thereof or lien thereon. . . .”

____________

��89 Nev. 250, 250 (1973) Fish v. Sheriff��

IRWIN WILLIAM FISH, Appellant, v. SHERIFF

OF CLARK COUNTY, NEVADA, Respondent.

No. 7268

June 6, 1973 510 P.2d 1370

Appeal from an order denying pre-trial habeas corpus. Eighth Judicial District Court,


The district court denied relief, and petitioner appealed. The Supreme Court, Zenoff, J.,

held that fact that witness before grand jury, which returned murder indictment against

petitioner, may have known, at most, that accomplice and others were going to perform a

“job” for petitioner and that some time after completion of that “job” witness may have

become aware of its nature and consequences did not render witness an “accomplice” so as to

preclude use of her testimony to corroborate grand jury testimony given against petitioner by

accomplice. The Court further held that bail of $125,000 or surety or $250,000 property was

not disproportionate to murder offense charged where accomplice had testified that petitioner

was perpetrator of the crime and accomplice's testimony was corroborated.

Affirmed.

Anthony M. Earl and Earle W. White, of Las Vegas, for Appellant.

Robert List, Attorney General, Roy A. Woofter, District Attorney, and Donald K.

Wadsworth, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. That witness before grand jury, which returned murder indictment against petitioner, may have known, at

most, that accomplice and others were going to perform a “job” for petitioner and that some time after

completion of the “job” witness may have become aware of its nature and consequences did not render

witness an “accomplice” so as to preclude use of her testimony to corroborate grand jury testimony given

against petitioner by accomplice. NRS 175.291, subd. 2, 195.020, 200.010.

2. Bail. It is not for person charged with crime to say when amount of bail is excessive.

3. Bail.

Bail of $125,000 cash or surety or $250,000 property was not disproportionate to murder offense charged

where accomplice �� +��


had testified that petitioner was perpetrator of the crime and accomplice's testimony was corroborated.

OPINION


After the Clark County Grand Jury returned an indictment charging appellant with murder

(NRS 200.010), he sought pretrial habeas and now appeals from the district court order

denying that relief.

David Boyd Miller, the state's principal witness before the grand jury, was one of the

participants in the charged offense. In return for a grant of immunity from prosecution Miller

testified at length and established appellant as a perpetrator of the crime.

Another grand jury witness, Constance L. Baker, corroborated Miller's testimony.

Appellant's primary contention on appeal is that she was an accomplice, thus, it was

impermissible for the grand jury to utilize her testimony for the requisite corroboration to

establish the probable cause to sustain the indictment. Appellant also urges an infringement

of his constitutional rights because of the high amount of the bail setting. Both contentions

are without merit.

[Headnote 1]

1. An accomplice is defined as “[o]ne who is liable to prosecution, for the identical

offense charged against the defendant on trial in the cause in which the testimony of the

accomplice is given.” NRS 175.291(2). To be considered an accomplice 1 Baker must have

(1) committed the act constituting the offense and/or (2) aided or abetted in the commission

of the act constituting the offense, and/or (3) directly or indirectly counseled, encouraged,

hired, commanded, induced, or procured another to commit the offense. NRS 195.020.

The record in this case is totally devoid of any testimony or other evidence that would

suggest or support an inference that Constance L. Baker performed any of the aforementioned

activities that would make her amenable to prosecution for the offense charged. At most, the

record indicates that Miss Baker may have known that Miller and others were going to

perform ��0��2�� 0��2�� )��

____________________

1

See the majority opinion in Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971), for a detailed treatment and

analysis of the law relating to accomplice testimony.


a “job” for appellant and that sometime after the completion of that “job” she may have

become aware of its nature and consequences.

Quoting the trial court, “This court is not aware of any case law, and appellant has cited

none, that would support the contention that criminal involvement can be inferred from a

person's social association with those accused of committing a crime, coupled with that

person's after acquired knowledge of the perpetration of the illegal act.”

2. Bail was initially set at $200,000.00 cash or surety, or $400,000.00 property. At the

habeas proceedings in the district court bail was reduced to $125,000.00 cash or surety, or

$250,000.00 property. Appellant argues the amount of bail is so excessive as to effectively

amount to no bail.

[Headnotes 2, 3]

While we have long held that bail cannot be set in a prohibitory amount, it is not for the

person charged with the crime to say when the amount is excessive. Ex Parte Malley, 50 Nev.

248, 253, 256 P. 512, 514 (1927). We very recently held that in cases such as this a denial of

bail will not infringe constitutional rights “when the proof of guilt is evident or the

presumption thereof great.” Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824 (1973). Under the

circumstances of this case we conclude the amount of the bail is not disproportionate to the

crime charged.



____________

��89 Nev. 252, 252 (1973) Layton v. State��

JOHNNY LEE LAYTON, Appellant, v. THE


No. 7226

June 6, 1973 510 P.2d 864

Original motion to extend time to file opening brief and to remand to the district court.

The Supreme Court held that it was neither necessary nor proper to apply in the first

instance to Supreme Court for leave to make motion for new trial based on newly discovered

evidence; rather, such a motion was required to be made in district court.

Briefing schedule vacated and motion to remand denied.


Lohse and Lohse, of Reno, for Appellant.

Robert List, Attorney General, Herbert F. Ahlswede, Chief Criminal Deputy Attorney

General, Carson City, and Robert E. Rose, District Attorney, Washoe County, for

Respondent.

1. Criminal Law. It was neither necessary nor proper to apply in first instance to Supreme Court for leave to move for new

trial based on newly discovered evidence; rather, such a motion was required to be made in district court.

NRS 176.515, subd. 3.

2. Criminal Law. A district court order denying or granting motion for new trial based on newly discovered evidence is a

final and appealable order. NRS 177.015.

3. Criminal Law. While district court has no authority to grant new trial once notice of appeal has been filed, it may hear

new trial motion and certify that it is inclined to grant it, and remand of case by Supreme Court would be

appropriate at such juncture. NRS 176.515, subd. 3.

OPINION

Per Curiam:

This appeal from a judgment of conviction and sentence is in progress 1 and the matter is

now before us on appellant's motion (1) to extend the time in which he may file his opening

brief, and (2) to remand the case to the district court in order that he may present a motion for

new trial based on newly discovered evidence. Respondent agrees to an extension of time to

file the brief, but opposes remand, arguing that appellant must divulge, in this court, all of the

“new evidence” and the circumstances leading to its belated discovery, in order that this court

can evaluate the merit of the motion.

It is not the function of this court to make a determination, in the first instance, of an

entitlement to a new trial. The procedure is governed by NRS 176.515(3) which reads: “A

motion for a new trial based on the ground of newly discovered evidence may be made only

before or within two years after final judgment, but if an appeal is pending the court may

grant the motion only on remand of the case.” [Emphasis added.] $%��="�(�(>@?� ��$�� :��-��$��

____________________

1

In a prior appeal a judgment of conviction and sentence was affirmed. See Layton v. State, 87 Nev. 598, 491

P.2d 45 (1971). The United States District Court for the District of Nevada, in an unreported opinion, voided

that conviction on constitutional grounds; the present appeal is from a subsequent judgment of conviction and

sentence.


NRS 176.515(3) is a part of the Nevada Criminal Procedure Law, enacted by Stats. of Nev.

1967, ch. 523, p. 1398 et seq. The particular section is taken verbatim from Fed. R. Crim. P.

33, which became effective for the federal courts July 1, 1966. “[NRS 176.515(3)] permits a

district court to entertain and deny a motion for a new trial based upon newly discovered

evidence without the necessity of a remand. Only after the district court has heard the motion

and decided to grant it is it necessary to request a remand from the appellate court.” United

States v. Frame, 454 F.2d 1136, 1138 (9th Cir. 1972), cert. den. 406 U.S. 925 (1972).

“We hold that the district court does have jurisdiction to deny a motion for new trial

without leave of this court during the pendency of an appeal, and that [NRS 176.515(3)] only

requires a remand to grant a motion for new trial. Thus, if the trial court says ‘no' it has

jurisdiction; if it wants to say ‘yes,' it does not have automatic jurisdiction.” United States v.

Hays, 454 F.2d 274, 275 (9th Cir. 1972).

[Headnotes 1-3]

It is neither necessary nor proper to apply in the first instance to this court for leave to

make the motion. A motion pursuant to NRS 176.515(3) should be made in the district court.

The district court may deny the motion, and if it does so, the denial is a final and appealable

order. NRS 177.015. 2 The district court has no authority to grant a new trial once the notice

of appeal has been filed. It may, however, hear the motion, and certify that it is inclined to

grant it. At that juncture remand would be appropriate. Cf. United States v. Lee, 428 F.2d 917

(6th Cir. 1970), cert. den. 404 U.S. 1017 (1972). Wright, Federal Practice and Procedure:

Criminal § 557. Appellant's motion to remand is denied. NRS 176.515 (3). Our disposition of

the case makes it unnecessary to rule on the motion to extend the time to file briefs.

In order that appellant may pursue his motion for new trial in the district court, we vacate

oral argument scheduled February 14, 1974, and the briefing schedules. The appeal is held in

abeyance until the termination of the further district court proceedings and the additional

record is certified to this court. At that time new briefing schedules become effective and a

new date for argument will be set.

It is so ORDERED.

____________________

2

Under NRS 177.015 the state would also have the right to appeal from an order granting a new trial.

____________

��89 Nev. 255, 255 (1973) Sheriff v. Dearing��

SHERIFF, CLARK COUNTY, NEVADA, Appellant,

v. DONALD JOSEPH DEARING, Respondent.

No. 7029

June 7, 1973 510 P.2d 874

Appeal from an order granting a pretrial writ of habeas corpus. Eighth Judicial District


Accused who was charged with lewdness with a minor sought dismissal of the charges in

pretrial habeas proceedings. The district court dismissed the charges and the State appealed.

The Supreme Court, Mowbray, J., held that alleged act of cunnilingus on ten-year-old

prosecuting witness was encompassed within definition of an “infamous crime against

nature” and was specifically excluded from lewdness statute.

Affirmed.

Gunderson, J., dissented.


Leon Simon, Deputy District Attorney, Clark County, for Appellant.

Morgan D. Harris, Public Defender, and Thomas D. Beatty, III, Deputy Public Defender,


Infants.

Alleged act of cunnilingus on ten-year-old prosecuting witness was encompassed within definition of

an “infamous crime against nature” and was specifically excluded from lewdness statute; thus, accused

could not be tried for lewdness with a minor based upon the alleged act. NRS 201.230, 201.230,

subd. 1.

OPINION


Respondent was charged, by indictment, with lewdness with a minor, a felony under NRS

201.230. The district court dismissed the charges in pretrial habeas proceedings, and the State

appeals.

The testimony adduced before the grand jury reflects, and the indictment so charges, that

respondent's lewdness was to engage in an act of cunnilingus on the 10-year-old prosecuting

witness. Such act has been held to be encompassed in the definition of an infamous crime

against nature, State v. Townsend, =��*�&�(�=�>;��

��89 Nev. 255, 256 (1973) Sheriff v. Dearing��

71 A.2d 517 (Me. 1950), cf. In re Benites, 37 Nev. 145, 140 P. 436 (1914), and is specifically

excluded from our lewdness statute. 1 We cannot fault the district judge for granting habeas

relief. See Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972). We therefore affirm Judge

Babcock's ruling, without prejudice to the State's proceeding under the proper statute.

Thompson, C. J., and Batjer and Zenoff, JJ., concur.

Gunderson, J., dissenting:

In my view, if an adult performs an act of cunnilingus on a ten-year-old female child, the

felony of lewdness with a minor is committed. NRS 201.230(1). In Justice Mowbray's view,

such conduct is not “lewdness with a minor” because, he thinks, cunnilingus is an “infamous

crime against nature” whatever the participants' ages may be. With that reasoning, he

proposes that we affirm an order granting habeas corpus and dismissing the defendant from

custody.

I must emphatically dissent. Even assuming the defendant can be found and re-charged, he

will likely escape accountability for his alleged offense, as a direct result of the reasoning

employed in Justice Mowbray's opinion. Manifestly, any state action which stigmatizes

cunnilingus as such, whether by statute or by judicial construction of a statute, is subject to

serious question on several federal grounds. Any lawyer must realize the United States

Supreme Court is unlikely to agree with Justice Mowbray that a woman may be charged with

a felony if she submits to cunnilingus.

What will become of this case, as a result of reading the defendant's alleged conduct out of

the “lewdness with a minor” statute, where it belongs, through Justice Mowbray's

construction of the “infamous crime against nature” statute?

____________________

1


“Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting

the crime of rape and the infamous crime against nature, upon or with the body, or any part or member thereof,

of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or

sexual desires of such person or of such child, shall be punished by imprisonment in the state prison for not less

than 1 year nor more than 10 years.” (Emphasis added.)

____________

��89 Nev. 257, 257 (1973) Stolte, Inc. v. District Court��

STOLTE, INC., a Nevada Corporation, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA, Respondent.

No. 7087

June 7, 1973 510 P.2d 870

Petition for a writ of prohibition to the Eighth Judicial District Court, Clark County;

Joseph S. Pavlikowski, Judge.

An employee of a sub-subcontractor brought an action against a subcontractor working

under the same principal contractor, seeking damages for personal injuries allegedly caused

by an employee of the defendant. After defendant's motion for summary judgment on ground

that plaintiff's sole remedy was under the Nevada Industrial Insurance Act was denied, by the

district court, it brought original proceedings in prohibition contending that the trial court was

without jurisdiction to proceed in plaintiff's common law action. The Supreme Court, Batjer,

J., held that prohibition was an appropriate remedy under the circumstances, that the

Industrial Insurance Act was intended to provide coverage for all employees working for, or

under, the principal contractor, including employees of sub-subcontractors, and that therefore

plaintiff's sole remedy lay under the act and the trial court was without jurisdiction to

entertain his common law action.

Prohibition granted.

Beckley, DeLanoy & Jemison, of Las Vegas, for Petitioner.

Lee & Beasey, of Las Vegas, for Respondent.

1. Prohibition.

Prohibition was appropriate remedy to restrain trial court from entertaining common law action by

employee of sub-subcontractor against a subcontractor of same principal contractor whose employee

allegedly caused plaintiff's injuries on ground that plaintiff's sole remedy lay under Industrial Insurance

Act. NRS 616.010 et seq.

2. Workmen's Compensation. Overall scheme of Industrial Insurance Act is to provide coverage for all employees working for, or

under, principal contractor, and Act covers employees of sub-subcontractors as well as subcontractors and

independent contractors. NRS 616.010 et seq.

3. Workmen's Compensation. Where employee of sub-subcontractor was allegedly injured by employee of a subcontractor working

under same principal contractor, plaintiff's exclusive remedy for such injuries was under �� *��


Industrial Insurance Act, and common law action against subcontractor did not lie. NRS 616.085,

616.115, 616.375, subd. 1.

OPINION


Harold Cunningham, while employed by a sub-subcontractor during the construction of

the International Hotel [now the Hilton International] in Las Vegas, Nevada, was injured as a

result of an act attributable to an employee of Stolte, Inc., one of the several subcontractors

involved in the construction of the hotel. Cunningham brought a common law action against

Stolte, Inc., and others, seeking damages for his injuries.

[Headnote 1]

Stolte, Inc., urging that Cunningham was only entitled to the scheduled statutory benefits

provided by the Nevada Industrial Insurance Act, NRS ch. 616, moved for summary

judgment in the district court. After summary judgment was denied, Stolte, Inc., brought this

original proceedings in prohibition contending that respondent court is without jurisdiction to

proceed in Cunningham's common law action. Prohibition is an appropriate remedy. Titanium

Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960).

The sole question to be decided is whether the provisions of NRS ch. 616 limit the

recovery by an employee of a sub-subcontractor to Nevada Industrial Commission benefits,

when the claimant's injury is attributable to an act by an employee of subcontractor on the

same project.

In Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957), this court held that an

owner who undertook to erect a building without the intervention of a principal contractor,

and parceled factions of the work among separate independent contractors was the “general

contractor” or “principal employer” and an employee of one of the separate contractors

injured in the course of his employment was limited to compensation under NRS ch. 616 and

was precluded from recovering at common law from another contractor on the same project.

We adopted the same rationale in Titanium Metals v. District Court, supra. In Aragonez v.

Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969), we held that the surviving dependent of

a fatally injured employee of one subcontractor could not recover in an action in tort from

another subcontractor on the same jobsite, but her exclusive remedy was under the Nevada

Industrial Insurance Act (NRS ch. 616).


Our system of industrial insurance provides for single unit coverage. All subcontractors

and independent contractors and their employees are deemed employees of the principal

contractor. NRS 616.085; NRS 616.115. It is the responsibility of the principal contractor to

see that industrial insurance coverage is provided for all such employees and only in instances

where the principal employer has failed to provide and secure compensation insurance under

NRS ch. 616 is an action at law permitted. NRS 616.375(1); Simon Service v. Mitchell,

supra; Titanium Metals v. District Court, supra; Tab Constr. Co. v. District Court, 83 Nev.

364, 432 P.2d 90 (1967). NRS ch. 616 provides the exclusive remedy of any employee of one

subcontractor injured as a result of the negligence of the employee of another subcontractor

working for the same covered principal contractor. Aragonez v. Taylor Steel Co., supra.

[Headnote 2]

We have never had occasion to consider if employees of a sub-subcontractor are to be

deemed employees of the principal contractor under NRS ch. 616. We note that the

provisions of that chapter make no reference to the term “sub-subcontractor.” This omission

however, does not in itself exclude employees of a sub-subcontractor from coverage. The

overall scheme of the Industrial Insurance Act is to provide coverage for all employees

working for, or under, the principal contractor. The provisions of NRS ch. 616 are construed

to include sub-subcontractors as well as subcontractors and independent contractors.

Several other jurisdictions, faced with similar situations have held that employees of a

sub-subcontractor are within their industrial insurance provisions. E.g., Palumbo v. Nello L.

Teer Co., 240 F.Supp. 226 (D.C. Md. 1965); Kieffer v. Walsh Construction Co., 140 F.Supp.

318 (E.D. Pa. 1956); Baker & Conrad v. Chicago Heights Const. Co., 4 N.E.2d 953 (Ill.

1936). The Illinois court in Baker & Conrad, supra, stated: “. . . The term ‘subcontractor' is

not spoken in a technical sense, but includes not only those contracting directly with the

original contractor, but also those who have contracted with one whose contract is

subordinate to a previous agreement, regardless of whether it is the original or general

contract. Such persons are all ‘subcontractors,' although they may be removed in different

degrees from the original contract. No distinctions are recognized in the applicability of the

act as to ‘contractors or to subcontractors,' as those terms are customarily recognized, or even

those still further removed in the chain of contracts descending from the original contract.

The act was �� 2


intended to embrace all laborers rendering services in the advancement of their employers

business. . . .” 4 N.E.2d at 958.

[Headnote 3]

An employee of a sub-subcontractor is deemed an employee of the principal contractor,

and the exclusive remedy of such employee injured in the course of his employment is limited

to benefits contained in NRS ch. 616.

Cunningham is proscribed from recovering damages against Stolte, Inc., in an action at

common law. The respondent court is without jurisdiction to entertain his complaint and the

peremptory writ of prohibition shall issue forthwith, in accordance with this opinion.


____________

��89 Nev. 260, 260 (1973) Brooks v. Sheriff��

LARRY BROOKS, Appellant, v. SHERIFF, CLARK


No. 7120

June 7, 1973 510 P.2d 1371

Appeal from an order denying pre-trial petition for habeas corpus. Eighth Judicial District

Court, Clark County; Leonard I. Gang, Judge.

Pre-trial habeas corpus challenging information charging burglary and battery with intent

to commit rape. The district court denied relief, and petitioner appealed. The Supreme Court,

Batjer, J., held that evidence supported reasonable inference that victim, who described her

injuries as cut on left side of her forehead, swollen eyes and swollen head, had sustained

“substantial physical injury,” within statute providing that if crime of battery with intent to

commit rape results in substantial physical injury to victim, person convicted shall be

punished by imprisonment for life; thus magistrate properly ordered accused held for trial on

charges of battery with intent to commit rape rather than simple battery.

Affirmed.






1. Rape.

Under statute providing that if battery with intent to commit rape is committed and if such crime results in

substantial physical injury to victim, person convicted shall be punished by imprisonment for life,

“substantial physical injury” is question of degree to be determined from evidence by trier of fact. NRS

200.400, subd. 3.

2. Criminal Law. Evidence supported reasonable inference that victim, who described her injuries as cut on left side of her

forehead, swollen eyes and swollen head, had sustained “substantial physical injury,” within purview of

statute providing that if crime of battery with intent to commit rape results in substantial physical injury to

victim, person convicted shall be punished by imprisonment for life; thus magistrate properly ordered

accused held for trial on charges of battery with intent to commit rape rather than simple battery. NRS

200.400, subd. 3.

OPINION


After a preliminary examination appellant was ordered to stand trial for burglary (NRS

205.060), and battery with intent to commit rape (NRS 200.400(3)).

Contending the state failed to establish probable cause to hold him for trial on the charges,

appellant filed pre-trial habeas, challenging the information, and now appeals from the order

denying him relief.

The testimony 1 given by the victim at the preliminary examination reflects that she and

her baby were in bed sleeping, about 4:30 a.m. on June 27, 1972. She was awakened by

appellant, who was choking her. He held a knife, taken from her kitchen, and told her to be

quiet and take her clothes off. He unzipped and either lowered, or removed, his trousers. The

victim told appellant her husband was due home very soon; he went to the door, looked both

ways and returned to the bed and beat and struck her several times about the head and face.

Her pillow was covered with blood. Appellant subsequently ran out the door. The entire

episode lasted from 10 to 15 minutes. During this time she had several opportunities to view

� ��

____________________

1 The victim is of Latin-American origin and understands the English language but has difficulty speaking in

English. Her answers were given through an interpreter.


him in the artificial light. Money, taken from the victim's wallet, led to the burglary charge

which is not seriously challenged on this appeal.

It is conceded that the evidence presented to the magistrate established that injuries were

inflicted upon the victim, but appellant strongly urges the injuries were trivial, and only

amounted to “simple battery” because there was no showing of the “substantial physical

injury” that would enhance the penalty for the offense. 2

The victim described her injuries as a cut on the left side of her forehead, swollen eyes and

a swollen head. She was the only one called to testify. The magistrate observed her on the

stand and concluded that there was sufficient probable cause to show “substantial bodily

injury.” Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083, (1971); Andrason v. Sheriff, 88 Nev.

589, 503 P.2d 15 (1972). 3

[Headnotes 1, 2]

Substantial physical injury is a question of degree to be determined from the evidence by

the trier of fact. Although some physical injuries are unquestionably substantial and others

trivial here the “evidence supports a reasonable inference that the victim sustained a ‘serious

physical injury,' and satisfies the quantum of proof necessary to allow the magistrate to order

that the accused be held for trial in the district court.” Andrason v. Sheriff, supra at 590-591.

The appellant's other contentions are also without merit.

Affirmed.


____________________

2 NRS 200.400(3):

“Any person convicted of battery with intent to kill, commit rape, the infamous crime against nature,

mayhem, robbery or grand larceny shall be punished by imprisonment in the state prison for not less than 2 years

nor more than 10 years, except that if a battery with intent to commit rape is committed, and if such crime results

in substantial physical injury to the victim, the person convicted shall be punished by imprisonment in the state

prison for life, with or without the possibility of parole, . . . as determined by the verdict of the jury, or the

judgment of the court if there is no jury.” [Emphasis added.]

3 Cf. State v. Nieuhaus, 117 S.W. 73 (Mo. 1909), which noted that as far back as the statute 9 Geo. IV, c.

31, § 13, (1828), an injury to a person was considered to be serious where the skin is broken and blood is drawn;

and State v. Perry, 426 P.2d 415 (Ariz.App. 1967), where the court concluded that a black eye, a cut on the back

of the head and a broken rib constituted “serious bodily injury.”

____________

��89 Nev. 263, 263 (1973) Conger v. Warden��

TERRY LYNN CONGER, Appellant, v. WARDEN,


No. 6948

June 7, 1973 510 P.2d 1359

Appeal from denial of post-conviction relief; Eighth Judicial District Court, Clark County;

Howard W. Babcock, Judge.

The district court denied relief, and appeal was taken. The Supreme Court, Thompson, C.

J., held that where, if defendant had entered plea of not guilty and been tried before jury or

pleaded guilty and been tried before three-judge court, either could have directed penalty of

death but defendant instead followed statute which allowed him, by his plea of guilty to each

of three counts of murder, to specify a punishment less than death which would be imposed

when consented to by district attorney and approved by court, the guilty pleas were not

coerced or void.

Affirmed.



for Respondent.

1. Criminal Law. Where, if defendant had entered plea of not guilty and been tried before jury or pleaded guilty and been

tried before three-judge court, either could have directed penalty of death but defendant instead followed

statute which allowed him by his plea of guilty to each of three counts of murder to specify a punishment

less than death which would be imposed when consented to by district attorney and approved by court, the

guilty pleas were not coerced or void. NRS 174.045, 174.065, subd. 2, 200.030, subd. 3;

U.S.C.A.Const. Amends. 5, 6, 14.

2. Criminal Law. A guilty plea is not compelled and invalid under the Fifth Amendment simply because it is motivated by

the defendant's desire to accept certainty or probability of a lesser penalty rather than to face wider range of

possibilities extending from acquittal to conviction and a higher penalty. U.S.C.A.Const. Amend. 5.

3. Criminal Law. Defendant's fear of death does not invalidate his guilty plea if he voluntarily, knowingly and

understandingly consents to imposition of a prison sentence.

4. Criminal Law. Where a guilty plea rests in any significant degree on a promise or agreement of prosecutor, so that it can

be said to be part of inducement or consideration, the promise or agreement must be fulfilled.


5. Criminal Law. Where record did not show a plea bargaining agreement between state prosecutor and defendant or his

counsel and negotiations of defendant's counsel with district attorney were independent of any discussion

he might have had with federal authorities and, even as to federal prosecution for bank robbery record

reflected only the possibility that charge would be dismissed if consent of Department of Justice could be

secured, defendant's pleas of guilty to each of three counts of murder would not be set aside on claim that

his decision to so plead was induced by promise of federal prosecutor that federal bank robbery charge

would be dismissed. NRS 174.065, subd. 2.

OPINION


Terry Lynn Conger entered his plea of guilty to each of three counts of murder and is

serving consecutive life sentences without the possibility of parole for each offense. Conger

later was prosecuted in the federal court for bank robbery, found guilty thereof, and sentenced

to fifty years imprisonment to commence upon completion of the state sentences. By this

post-conviction proceeding he seeks leave to withdraw his guilty pleas to the state charges,

asserting that the Nevada statutory scheme was coercive and subordinately, that his decision

to so plead was induced by a promise of the federal prosecutor that the federal bank robbery

charge would be dismissed. The district court denied relief. We affirm.

1. The guilty pleas were entered pursuant to NRS 174.065(2). 1 Since a jury could have

sentenced him to death had he pleaded not guilty and, by the jury found guilty [NRS

200.030(3)], he contends that his guilty pleas must be deemed to have been coerced and,

therefore, are void. This contention rests upon the cases of Spillers v. State, 84 Nev. 23, 436

P.2d 18 (1968), and United States v. Jackson 390 U.S. 570 (1968).

In Spillers, the statutory scheme was such that a guilty plea to the court, or a not guilty plea

followed by a court trial, would result in a sentence of not less than 20 years, whereas a not

guilty plea followed by a jury trial could result in the death ��

____________________

1 NRS 174.065(2): “On a plea of guilty to an indictment or information for an offense punishable by death,

when consented to by the district attorney in open court and approved by the court, the plea may specify a

punishment less than death. The specified punishment, or any lesser punishment, may be imposed by a single

judge.”


penalty. Only the jury could decree death. The court could not. Jackson involved the same

general scheme. There was no provision for imposing the death penalty if the defendant

pleaded guilty. Such a penalty structure was found to chill the defendant's Fifth Amendment

right not to plead guilty and, as well, his Sixth Amendment right to demand a jury trial and,

therefore, was unconstitutional. 2 Also, according to Spillers, the Equal Protection Clause

was violated since the statutes allowed the jury to impose a greater penalty than the court for

the same offense.

The statutory provisions applicable to this case are significantly different that those with

which we were concerned in Spillers. Here, had the defendant entered a plea of not guilty and

been tried before a jury or pleaded guilty and been tried before a three-judge court, either

could have directed the penalty of death. NRS 200.030(3); NRS 174.045. There was no

disparity in the power to punish. The defendant selected neither of those alternative

procedures. Instead, he pursued NRS 174.065(2) which allowed him, by his plea, to specify a

punishment less than death which would be imposed when consented to by the district

attorney and approved by the court.

[Headnotes 1-3]

NRS 174.065(2) does, of course, encourage plea bargaining in those cases where the

penalty may be death. This does not condemn nor invalidate the statute. A guilty plea is not

compelled and invalid under the Fifth Amendment simply because it is motivated by the

defendant's desire to accept the certainty or probability of a lesser penalty rather than to face a

wider range of possibilities extending from acquittal to conviction and a higher penalty.

Brady v. United States, 397 U.S. 742 (1970); North Carolina v. Alford, 400 U.S. 25 (1970);

Parker v. North Carolina, 397 U.S. 790 (1970). Neither does the defendant's fear of death

invalidate his guilty plea if he voluntarily, knowingly and understandingly consented to the

imposition of a prison sentence. North Carolina v. Alford, supra. The first claim of error is

without merit.

2. Conger alleges that a plea bargaining agreement was not kept, and that his pleas of

guilty should be set aside for that ��

____________________

2 United States v. Jackson, supra, appears to have been limited by later decisions. See: North Carolina v.

Alford, 400 U.S. 25 (1970); Parker v. North Carolina, 397 U.S. 790 (1970). It has been suggested that Jackson

now is limited to those few cases where the defendant attacks an allegedly coercive statutory scheme before he

enters his plea. Note, 44 Temp. L.Q., 540 (1971).


reason. He claims to have been told by his attorney that the federal bank robbery charge

would be dismissed if he was found guilty of the state charges.

[Headnotes 4, 5]

When a guilty plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be a part of the inducement or consideration, such promise

or agreement must be fulfilled. Santobello v. New York, 404 U.S. 257 (1971). This case,

however, does not fall within the Santobello doctrine. The record does not show a plea

bargaining agreement between the state prosecutor and Conger or his counsel. Indeed, Conger

alleges no wrongdoing on the part of the State, nor that the prosecutor or his agents made any

promises which later were broken. Neither does he suggest collusion between the state and

federal prosecutors. The record establishes unequivocally that the negotiations of Conger's

counsel with the district attorney were independent of any discussions he may have had with

federal authorities. Moreover, even as to the federal prosecution for bank robbery, the record

reflects only the possibility that the charge would be dismissed if the consent of the

Department of Justice could be secured. Consequently, this claim of error must fail.

Affirmed.


____________

��89 Nev. 266, 266 (1973) Pearce v. Boberg��

STEPHEN DALE PEARCE and FREDERICK PEARCE, Appellants, v. DEBRA RAY

BOBERG, Also Known as DEBRA KAY PEARCE, Respondent.

No. 6971

June 13, 1973 510 P.2d 1358

Appeal from judgment and from order denying motion for new trial, Second Judicial

District Court, Washoe County; Grant L. Bowen, Judge.

Action by wife against husband and husband's father for personal injuries caused to the

wife by the husband's negligence before marriage. The district court rendered judgment for

the wife and the husband and his father appealed. The Supreme Court, Gunderson, J., held

that where automobile accident in which plaintiff was injured occurred prior to her marriage

to defendant, the plaintiff's right of action accrued �� )�� #� ��


prior to marriage, the subsequent marriage did not extinguish the right and plaintiff was not

barred from bringing the action by rule that a wife may not sue her husband for personal tort

occurring during marriage.

Affirmed.

Diehl, Recanzone, Evans & Smart, of Fallon, for Appellants.

Hibbs & Bullis, of Reno, for Respondent.

Husband and Wife.

Where automobile accident in which plaintiff was injured occurred prior to her marriage to defendant,

the plaintiff's right of action accrued prior to marriage, the subsequent marriage did not extinguish the

right and plaintiff was not barred from bringing the action by rule that a wife may not sue her husband for

personal tort occurring during marriage. Const. art. 4, § 31.

OPINION


This appeal seeks reversal of a judgment for personal injuries caused to respondent by her

husbands negligence before marriage. The primary appellate contention is that the trial court

erred in allowing respondent to prosecute her action, because a wife may not sue her husband

in tort. We disagree.

In an automobile owned by appellant Stephen Dale Pearce's father, appellant Frederick

Pearce, Stephen and respondent Debra Kay Boberg left California together, enroute to Idaho

where they planed to be married. In Nevada, Stephen negligently caused the automobile to

leave the highway and overturn, injuring Debra Kay. Two days later, they were married and,

shortly thereafter, Debra Kay commenced this action. The jury favored respondents with its

verdict; from a judgment thereon, this appeal ensued.

In Morrissett v. Morrissett, 80 Nev. 566, 397 P.2d 184 (1964), a majority of this court

reaffirmed the rule that a wife may not sue her husband for a personal tort occurring during

marriage. Since then, a number of jurisdictions have repudiated that common-law doctrine.

See, for example: Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972); Freehe v. Freehe, 500

P.2d 771 (Wash. 1972); Hosko v. Hosko, 187 N.W.2d 236 (Mich. 1971); Immer v. Risko,

267 A.2d 481 (N.J. 1970); Beaudette v. Frana, 173 N.W.2d 416 (Minn. 1969). However,

because Stephen's tort occurred before marriage, we need not re-examine our prior holding in

Morrissett, except to �� ;�� @'�$�3�&�@!@��@(&�>; ��


note that here the reasons underlying that decision are absent. Cf. Mosier v. Carney, 138

N.W.2d 343, 352 (Mich. 1965).

Since respondent's right of action against appellants accrued prior to marriage, we perceive

no warrant for holding that the subsequent marriage somehow “extinguished” that right,

which was and is respondent's separate property. Nev. Const. art. 4, § 31; Choate v. Ransom,

74 Nev. 100, 104, 323 P.2d 700, 702 (1958); F. & W. Const. Co. v. Boyd, 60 Nev. 117, 102

P.2d 627 (1940).

Other assignments of error have been reviewed, and are deemed without merit.

Affirmed.

Thompson, C. J. and Mowbray, Batjer, and Zenoff, JJ., concur.

____________

��89 Nev. 268, 268 (1973) Schieve v. Warren��

DONALD R. SCHIEVE, Appellant, v. F. EVERETT

WARREN, Respondent.

No. 7004

June 13, 1973 510 P.2d 1367

Appeal from judgment of the Second Judicial District Court, Washoe County; Emile J.

Gezelin, Judge.

The Supreme Court held that findings will not be set aside unless clearly erroneous.

Affirmed.

Bissett & Logar, of Reno, for Appellant.

Sanford, Sanford & Fahrenkopf, of Reno, for Respondent.

Appeal and Error.

Findings will not be set aside unless clearly erroneous. NRCP 52(a).

OPINION

Per Curiam:

On appeal, a trial court's findings will not be set aside unless clearly erroneous. NRCP

52(a).

Affirmed.

____________

��89 Nev. 269, 269 (1973) Tobler & Oliver Constr. v. Nevada St. Bank��

TOBLER AND OLIVER CONSTRUCTION CORP.; FAY TOBLER and VENICE

TOBLER, Husband and Wife; and VERNES OLIVER and THELMA OLIVER, Husband and

Wife, Appellants, v. NEVADA STATE BANK, a Nevada Banking

Corporation, Respondent.

No. 7047

June 13, 1973 510 P.2d 1364

Appeal from judgment. Eighth Judicial District Court, Clark County; Thomas J.

O'Donnell, Judge.

Suit was brought on promissory note and to recover under continuing guaranties of

indebtedness of defendant bankers. The district court entered a judgment in favor of the

assignee bank and the defendants appealed. The Supreme Court, Zenoff, J., held, inter alia,

that references to “borrowers” in the stock form of continuing guarantee of note executed by

defendants after assignment of note to bank did not render guarantee invalid on ground that

note did not represent any money borrowed directly by banker, since guarantee stated a

promise to pay the assignee bank so that the term “borrower” was merely a term of

convenience and not intended to define nature of obligation.

Affirmed.

A. Loring Primeaux and Morton R. Galane, of Las Vegas, for Appellants.

Boyd, Leavitt & Freedman, of Las Vegas, for Respondent.

1. Guaranty. References, to “borrowers” in the stock form of continuing guaranty of note executed by defendants after

assignment of note to bank did not render guaranty invalid on ground that note did not represent any money

borrowed directly by makers, since guaranty stated a promise to pay the assignee bank so that the term

“borrower” was merely a term of convenience and not intended to define nature of obligation.

2. Guaranty. Guaranty which was executed after assignment of note to bank and which stated that the word

“indebtedness” was used in its most comprehensive sense and included any and all advances, debts,

obligations and liability of borrowers was broad enough to include note in hands of assignee.

3. Bills and Notes. Although death certificate of widow of the deceased joint payees of note was not offered into evidence in

suit brought thereon by assignee bank to recover on note and guaranty, since �� +��


record contained several acknowledgments of joint payee's death and there was no affirmative pleading of

such defense, bank did not lack capacity to sue on note on theory that without proof of death of joint payee

survivor did not get title to note and could not validly assign it. NRCP 8(c), 9(a).

OPINION


Tobler and Oliver Construction Corp. executed a promissory note on January 3, 1964 in

the amount of $50,000.00 payable to John and Nellie Covarrubias, as joint tenants, with a

right of survivorship. John Covarrubias died in an airplane crash. Subsequent to his death his

wife, Nellie Covarrubias, on August 11, 1965 assigned the note to the Nevada State Bank in

payment of an obligation of Covarrubias to the bank. Notice of the assignment was given to

Tobler and Oliver Construction Corp. and to Fay Tobler who was president of the

corporation. Thereafter, Tobler and Oliver Construction Corp. made payments on the note to

the bank.

Prior to the execution of the assignment the individual defendants, Vernes Oliver and Fay

Tobler, on June 8, 1965 executed continuing guaranties in favor of the bank in the principal

amount of $50,000.00. Subsequent to the execution of the assignment on May 27, 1966 all

the individual defendants executed continuing guaranties in favor of the bank in the amount

of $50,000.00.

The bank subsequently brought suit on the promissory note which had been assigned to it

by Nellie Covarrubias and acquired judgment against each of the defendants jointly and

severally in the amount of $13,439.97, the balance due on the note, plus interest, court costs

and attorneys' fees. The judgment against the individual defendants was based upon their

liability under their continuing guaranties of the indebtedness of the corporate defendant

Tobler and Oliver Construction Corp. to the bank.

The question is whether the continuing guaranties executed by the individuals bind them

to pay the balance due on the note which had been executed by Tobler and Oliver

Construction Corp. in favor of Covarrubias and later assigned to the respondent bank.

[Headnote 1]

1. The continuing guaranty is a “stock” form that recites the word “borrowers” 18 times.

Appellants claim that since the ��


Covarrubias note did not represent any money borrowed directly by them their guaranties

were not binding. The argument is without merit.

The guaranties provide: “. . . the undersigned (hereinafter called guarantors) . . . guarantee

and promise to pay Nevada State Bank . . . any and all indebtedness of Tobler and Oliver

Construction Corp. (hereinafter called borrowers) to bank.” The term “borrower” is merely a

term of convenience and is not intended to define the nature of the obligation. Fannin State

Bank v. Grossman, 175 N.E.2d 268 (Ill.App. 1961).

[Headnote 2]

2. The guaranty goes on to state: “The word ‘indebtedness' is used herein in its most

comprehensive sense and includes any and all advances, debts, obligations and liabilities of

borrowers . . . however arising. . . .” The language of the guaranty they executed is broad

enough to include the note.

[Headnote 3]

3. Appellants question the lack of standing and capacity of the bank to sue on the

Covarrubias note because there was no proof at trial of John Covarrubias' death. The death

certificate of John Covarrubias was not offered into evidence. Still, the record contains

several acknowledgments of the fact of his death including admission of that fact by the

corporation in its answer. Nevertheless, appellants argue that without proof of the death of her

husband Nellie Covarrubias did not get title to the note and could not validly assign it to the

bank and accordingly that the bank, not owning the note, could not sue upon it.

Again, the arguments are specious. NRCP 8(c) and NRCP 9(a) require this allegation to be

plead affirmatively and with particularity. This was not done. Failure to so plead constitutes

waiver. The continuing guaranties are proper in form and effect and the trial court was correct

in imposing liability based upon them.

Affirmed.


____________

��89 Nev. 272, 272 (1973) Massey-Ferguson, Inc. v. Childress��

MASSEY-FERGUSON, INC., Appellant, v. ELDON

D. CHILDRESS, Respondent.

No. 7027

June 13, 1973 510 P.2d 1358

Appeal from order releasing a writ of execution, Eighth Judicial District Court, Clark


Appeal from an order of the district court releasing a writ of execution and upholding

respondent's claim to a homestead exemption on real property. The Supreme Court held that

the release of the writ was proper despite the fact that respondent had recorded his homestead

declaration only three days prior to the scheduled sheriff's sale of the property.

Affirmed.

Robert K. Dorsey, of Las Vegas, for Appellant.

B. Mahlon Brown, III, Clark County Legal Services Program, Las Vegas, for Respondent.

Homestead.

Release of writ of execution was proper despite fact that judgment debtor had recorded his homestead

declaration only three days before scheduled sheriff's sale of real property. NRS 21.090, subd. 1(m),

115.010.

OPINION

Per Curiam:

This appeal is from an order that upheld respondent's claim to a homestead exemption in

certain real property, and released a writ of execution levied thereon.

Appellant contends the order was erroneous because respondent recorded his homestead

declaration only three days prior to the scheduled sheriff's sale of the property. Such

contention has no merit. NRS 21.090(1)(m); NRS 115.010; Hawthorne v. Smith, 3 Nev. 182

(1867).

Review of other contentions is precluded by lack of a complete record on appeal. Meakin

v. Meakin, 88 Nev. 25, 492 P.2d 1304 (1972); Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851

(1969).

Affirmed.

____________

��89 Nev. 273, 273 (1973) Sanchez v. Warden��

JOSE RICARDO SANCHEZ, Appellant, v. WARDEN,


No. 6975

June 13, 1973 510 P.2d 1362

Appeal from an order of the Second Judicial District Court, Washoe County; John F.

Sexton, District Judge, denying the appellant post-conviction relief.

The Supreme Court, Batjer, J., held that where defense counsel raised and preserved

defendant's alleged assignment of error that victim's in-court identification of defendant was

tainted by identification made by victim a few minutes after robbery without defendant being

represented by counsel but defendant did not appeal his conviction, defendant waived right to

have issue reviewed in post-conviction proceeding.

Appeal dismissed.

Gary Sheerin, Public Defender, of Carson City, for Appellant.

Robert List, Attorney General; Robert E. Rose, District Attorney, and Kathleen M. Wall,

Deputy District Attorney, Washoe County, for Respondent.

1. Criminal Law. Where defense counsel raised and preserved defendant's alleged assignment of error that victim's in-court

identification of defendant was tainted by identification made by victim a few minutes after robbery

without defendant being represented by counsel but defendant did not appeal his conviction, defendant

waived right to have issue reviewed in post-conviction proceeding. NRS 177.066, 177.315 et seq.

2. Criminal Law. Post-conviction proceedings are not intended to be utilized as a substitute for appeal.

OPINION


This matter is before our court for the second time. In Sanchez v. Sheriff, Washoe County,

86 Nev. 142, 466 P.2d 670 (1970), he appealed from a order of the Second Judicial District

Court denying his pretrial application for a writ of habeas corpus. There we granted the

respondent sheriff's motion for �� K��


dismissal because Sanchez pursued a inappropriate remedy. Cook v. State, 85 Nev. 692, 462

P.2d 523 (1969); NRS 177.015; NRS 177.045.

At the commencement of the trial the appellant, through counsel, out of the presence of the

jury, moved to suppress any identification testimony of Glen O'Malley, the victim. At the

hearing on the motion, the Honorable Thomas O. Craven, District Judge, determined that the

victim's in-court identification did not violate any constitutional rights and denied the motion.

The trial proceeded and the appellant was found guilty of robbery. He did not appeal that

conviction. Almost one (1) year later, and long after the time for filing an appeal had expired

(NRS 177.066), he petitioned for post-conviction relief (NRS 177.315 et seq.) upon the

ground that the identification by the victim of a robbery, made at the scene within a few

minutes after the crime tainted the victim's in-court identification of him because the on-scene

identification was made without the presence of defense counsel and in violation of his

constitutional rights. This appeal was taken from the order denying that petition.

At about 1:10 a.m. on the morning of May 23, 1969, the Food Shop at the corner of

Second and West Streets in Reno, Nevada was robbed. At about that same time, Jack

Brownell, an off duty police officer, was driving by and observed the appellant run from the

store and proceed west on Second Street. The appellant darted in front of Brownell's vehicle

forcing him to abruptly apply the brakes. For a moment the appellant looked directly into the

headlights of Brownell's vehicle, then he continued west on Second Street and entered the El

Cortez Hotel. Brownell, who had been heading east on Second Street toward the Food Shop,

turned around and met officers in a police car who were responding to the robbery victim's

phone call. About twenty minutes later Brownell and the other police officers observed the

appellant walking down the stairs in the El Cortez. He was apprehended, handcuffed and

returned immediately to the Food Shop where he was confronted by Glen O'Malley, the

victim, who identified him as the robber.

[Headnotes 1, 2]

We do not reach the merits of the identification question because the appellant has waived

his right to have that issue reviewed. Trial counsel raised and preserved the appellant's��


alleged assignment of error but no appeal was taken. No reason was ever given why there was

no appeal. Post-conviction proceedings are not intended to be utilized as a substitute for

appeal.

In Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971), a asserted error was not presented in

a earlier appeal nor was there any reason given to explain that omission, and we held that

Craig's post-conviction relief was barred. We find no valid distinction between the fact that in

Craig an assignment of error was omitted and here no appeal was taken.

In State v. Reid, 441 P.2d 742 (N.M. 1968), the defendant filed an appeal but it was

dismissed at his request. Later he raised appealable issues in a post-conviction petition and

the appellate court in affirming the denial of post-conviction relief said: “At the trial it was

determined that defendant's statement was freely and voluntarily made. If this determination

was in error, it could have been corrected on direct review. . . . Defendant's direct appeal was

dismissed at his own request. A post-conviction proceeding is not a method of obtaining a

retrial of the case or a consideration of questions which might have been raised on appeal.

State v. Williams, 78 N.M. 431, 432 P.2d 396 (1967).” See: People v. Armes, 227 N.E.2d

745 (Ill. 1967); People v. Lyons, 291 N.E.2d 353 (Ill.App. 1972). See also: State v. Sedillo,

502 P.2d 318 (N.M. 1972); Johnson v. Warden, 295 A.2d 820 (Md.App. 1972).

This appeal is dismissed.


____________

��89 Nev. 275, 275 (1973) Egan v. Sheriff��

JAMIE EGAN, Appellant, v. SHERIFF, CLARK


No. 7346

June 14, 1973 510 P.2d 868

Appeal from a order denying pre-trial writ of habeas corpus, Eighth Judicial District Court,

Clark County; Thomas J. O'Donnell, Judge.

Affirmed.

Peter Flangas, of Las Vegas, for Appellant.

��89 Nev. 275, 276 (1973) Egan v. Sheriff��



OPINION

Per Curiam:

This appeal is without merit. New England Enterprises, Inc. v. United States, 400 F.2d 58

(1st Cir. 1968), cert. den. 393 U.S. 1036 (1969); Bary v. United States, 292 F.2d 53 (10th Cir.

1961). The order of the trial court is affirmed.

____________

��89 Nev. 276, 276 (1973) Baker v. Elliott��

MARK P. BAKER and ALICE C. BAKER, Husband and Wife, Appellants, v. VAN E.

ELLIOTT and ARRAHWANNA ELLIOTT, Husband and Wife, Respondents.

No. 7012

June 15, 1973 510 P.2d 869

Appeal from judgment of the Eighth Judicial District Court, Clark County; Leonard I.

Gang, Judge.

Affirmed.

Franklin & Bartley, of Las Vegas, for Appellants.

George Rudiak, Chartered, of Las Vegas, for Respondents.

OPINION

Per Curiam:

“Findings of fact shall not be set aside unless clearly erroneous.” NRCP 52(a).

Affirmed.

____________

��89 Nev. 277, 277 (1973) May v. State��

ELMER MAY, Jr., Appellant, v. THE


No. 6864

June 20, 1973 510 P.2d 1368

Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;


The Supreme Court, Zenoff, J., held that failure to instruct that jury should examine

testimony of prosecuting witness with caution was not prejudicial since it was unlikely that

verdict would have been different had the instruction been given.

Affirmed.

[Rehearing denied October 25, 1973]

Morgan D. Harris, Public Defender, and Thomas D. Beatty, Deputy Public Defender,


Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,

Chief Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. Refusal to give instruction in rape prosecution that jury must examine testimony of prosecuting witness

with caution because charge of rape is one which is easy to make but difficult to disprove is not prejudicial

error if the evidence clearly points to defendant's guilt, the victim's testimony is corroborated or there are

other factors which show that the defendant has been given a fair trial.

2. Rape.

In a rape case a jury may convict on the uncorroborated testimony of the prosecuting witness.

3. Rape.

Giving two instructions, both of which informed jury that they could convict on the uncorroborated

testimony of the victim, was not improper.

OPINION


Appellant was convicted of rape after a trial in which the only identification witness was

the victim. He now presents two specifications of error, both of which concern the court's

charging of the jury.

First, appellant claims the trial court erred in refusing to give an instruction to the effect

that the jury must examine the testimony of the prosecuting witness with caution because ��

��89 Nev. 277, 278 (1973) May v. State��

the charge of rape is one which is easy to make but difficult to disprove. 1

1. In support of this specification of error appellant cites People v. Nye, 237 P.2d 1 (Cal.

1951), which stated, in dicta, that it was incumbent on the court to instruct the jury that since

charges of sex offenses are easy to make and difficult to disprove, the testimony of the victim

should be examined with caution. The court proceeded to hold, however, that the error was

not prejudicial because the instruction would not likely have changed the jury verdict.

[Headnote 1]

The refusal to give such an instruction is not prejudicial error if the evidence clearly points

to defendant's guilt, the victim's testimony is corroborated or there are other factors which

show that the defendant has been given a fair trial. People v. Merriam, 426 P.2d 161 (Cal.

1967); People v. Failla, 414 P.2d 39 (Cal. 1966); People v. House, 320 P.2d 542 (Cal.App.

1958).

This court held in Scott v. State, 72 Nev. 89, 94, 295 P.2d 391, 394 (1956), as follows:

“[C]onfining our conclusion to the facts of this case in which competency of the

complaining witness was firmly established . . . the corroborating evidence [of

identification] . . . the lack of any inherent incredibility in the testimony, the entire lack

of any elements of spite, vengeance, vindictiveness or other base motives, coupled with

the full instructions given by the court as to the credibility of witnesses and the

necessity of proof beyond a reasonable doubt, we are satisfied that there was no error in

the refusal to give the cautionary instructions. See annotation to, People v. Lucas, 16

Cal. 2d 178, 105 P.2d 102, appearing at 130 A.L.R. 1489, 1491.”

In the case at bar there was adequate corroboration upon all points except that of the

identity of the defendant. As to that issue the testimony of the prosecuting witness was clear

and definite. Her testimony was not marked by any inherent incredibility nor was it shown to

be motivated by elements ��

____________________

1

“A charge such as that made against the defendant in this case is one, which, generally speaking, is easily

made, and once made, difficult to disprove even if the defendant is innocent. From the nature of a case such as

this, the complaining witness and the defendant usually are the only witnesses. Therefore, I charge you that the

law requires that you examine the testimony of the prosecuting witness with caution.”

��89 Nev. 277, 279 (1973) May v. State��

of spite, vengeance, personal vindictiveness or any other base motive. The jury was fully

instructed as to the necessity of proof beyond a reasonable doubt and the factors to be

considered in determining the credence and weight of testimony of the witnesses. They were

also duly cautioned against bias, prejudice and sympathy.

Under the circumstances, the refusal to give the cautionary instruction was not prejudicial

since it is most unlikely that the verdict would have been different had the instruction been

given.

2. Appellant also contends the court erred in giving two jury instructions, both of which

informed the jury that they could convict on the uncorroborated testimony of the victim. 2

[Headnotes 2, 3]

First, it must be noted that both instructions are a correct statement of the law of this state,

i.e., that in a rape case a jury may convict on the uncorroborated testimony of the prosecuting

witness. Bennett v. Leypoldt, 77 Nev. 429, 366 P.2d 343 (1961). Second, appellant's claim is

not that the instructions incorrectly stated the law but that it was improper to give both of

them.

Affirmed.


____________________

2

“INSTRUCTION NO. 6.

“The Court instructs the jury that it is your province to determine the weight and credibility to be given the

testimony of a female upon whom it is alleged in an information that a rape has been committed, and who

testifies to the facts and circumstances of such rape as of any other witness testifying in the case. And if such

testimony creates in the minds of the Jury a satisfactory conviction and belief, beyond a reasonable doubt of the

defendant's guilt, it is sufficient of itself without other corroborating circumstances or evidence to justify a

verdict of guilty rape upon the trial of the case.

“. . . .

“INSTRUCTION NO. 12.

“It is not essential to a conviction in this case that the testimony of the prosecutrix be corroborated by other

evidence. It is sufficient if, from all the evidence, you believe beyond a reasonable doubt that the crime of rape

was committed by the defendant as alleged.”

____________

��89 Nev. 280, 280 (1973) Founts v. Warden��

RICHARD EUGENE FOUNTS, Appellant, v. WARDEN


No. 7009

June 20, 1973 511 P.2d 111

Appeal from judgment on application for post-conviction relief of the Second Judicial

District Court, Washoe County; John F. Sexton, Judge.

The district court denied petition and petitioner appealed. The Supreme Court, Zenoff, J.,

held that record of evidentiary hearing conducted on petition for post-conviction relief did not

support petitioner's claim that he was denied effective assistance of counsel on appeal, nor did

it support petitioner's claim that counsel at evidentiary hearing was inadequate.

Affirmed.

Gary A. Sheerin, State Public Defender, and A. D. Demetras, Deputy Public Defender,


Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,

Deputy District Attorney, Washoe County, for Respondent.

Criminal Law.

Record of evidentiary hearing conducted on petition for post-conviction relief did not support

petitioner's claim that he was denied effective assistance of counsel on appeal, nor did it support

petitioner's claim that counsel at evidentiary hearing was inadequate. NRS 177.315.

OPINION


Appellant was convicted of kidnapping, attempted robbery and three counts of robbery.

His conviction was affirmed on a prior appeal. Founts v. State, 87 Nev. 165, 483 P.2d 654

(1971).

Subsequently, he filed a petition for post-conviction relief pursuant to NRS 177.315

charging, inter alia, lack of effective assistance of counsel on appeal. From the judgment

denying post-conviction relief appellant now appeals claiming, first, ineffectiveness of

counsel on direct appeal, and second, ineffectiveness of counsel at the evidentiary hearing for

post-conviction relief.

Inadequacy of counsel has been considered by this court �� A��'"�$��'/�� &��!"(�:�&��@@��!�� !//�L��'!!�>� =/?B

��89 Nev. 280, 281 (1973) Founts v. Warden��

and the following standard has been announced in Bean v. State 86 Nev. 80, 92, 465 P.2d

133, 141, cert. denied, 400 U.S. 844 (1970):

“Trial lawyers will always disagree on how a case should have been tried. Second

guessing is as characteristic of lawsuits as Monday morning quarter-backing is of

football games. But before a denial of due process arises on the ground of inadequate

counsel the trial must be a sham, a farce or a pretense.” (Emphasis added, citations

omitted.)

This court had also had occasion to state the following rule with regard to a defendant's

right to effective legal representation:

“It is presumed that an attorney has fully discharged his duties. This presumption can

only be overcome by strong and convincing proof to the contrary.” Smithart v. State, 86

Nev. 925, 931, 478 P.2d 576, 580 (1970).

In this case the presumption was not overcome by strong and convincing proof, nor by any

proof at all. A reading of the transcript of the evidentiary hearing shows that the proceeding

was not “a sham, a farce or a pretense.” Instead, it shows that all issues and errors which had

been properly preserved for appellate consideration were presented and adequately argued on

appeal and that with regard to the evidentiary hearing his counsel directed the court's attention

to each of appellant's claims and testimony was taken as to each.

Counsel throughout petitioner's trial and other proceedings did all that could be expected

of them.

The judgment of the lower court is affirmed.

Thompson, C. J., and Mowbray, Gunderson, and Batjer, JJ. concur.

____________

��89 Nev. 281, 281 (1973) Walker v. State��

FREDDIE MARTIN WALKER, Appellant, v. THE


No. 7035

June 20, 1973 510 P.2d 1365

Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;

John F. Mendoza, Judge.


The Supreme Court, Zenoff, J., held that trial judge did not abuse discretion in allowing

state, during rebuttal period, to introduce evidence which though it would have been proper as

part of case in chief tended to impeach defendant's testimony on material point.

Affirmed.

Morgan D. Harris, Public Defender, and Robert Stott, Deputy Public Defender, Clark


Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,

Chief Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. Trial judge did not abuse discretion in allowing state, during rebuttal period, to introduce evidence which

though it would have been proper as part of case in chief tended to impeach defendant's testimony on

material point.

2. Criminal Law. Where defense counsel knew on Friday that state intended to call witness when trial resumed during

following week, and thus had full weekend to find impeachment evidence and arrange for witnesses to

testify as to defendant's prior consistent statements, it was not abuse of discretion to deny request for

three-week continuance.

OPINION


After a trial by jury appellant was convicted of robbery. During the trial defendant took the

stand and testified in his own behalf that he had nothing to do with the robbery and did not go

to the place of the crime on the day of the crime.

After the defense rested the state called Melvin E. Jackson, a Clark County Deputy Sheriff,

as a rebuttal witness. After appellant's objection the state made the following offer of proof:

That Jackson would testify that he had been assigned to escort appellant to his first jury trial

for the offense (three weeks before the trial that is subject of this appeal); that on the last day

of that trial he and appellant were walking down the hall in the courthouse and appellant

looked very upset; that Jackson had asked what was wrong and appellant replied that Tony

Williams (who identified him at trial) had lied when he testified that appellant was the man

who jumped over the counter at the robbery scene. Appellant, according to the �� 3 �� >��?��


offer of proof, stated that he had not jumped over the counter, but said that if Williams had

testified he was the one (of three perpetrators of the offense) who was standing in the door, he

would have been correct. The state also offered to prove that Jackson had asked him “why

you guys went over to the west side and robbed those people over there,” and that appellant

had answered, “Well, it wasn't their money. The money belonged to the Housing Authority,

not them, so I didn't take anything from them.”

Appellant's objection to this testimony was on the ground that it was improper rebuttal

since it should have been offered during the state's case in chief. The prosecutor stated that

his decision to call Jackson as a rebuttal witness rather than as part of the case in chief was a

“tactical decision.”

The trial judge overruled appellant's objections and allowed Jackson to testify concerning

the admissions alleged to have been made to him by the appellant.

Appellant then moved for a three-week continuance to allow the defense to investigate

Jackson's background in a attempt to find some impeachment evidence and also to allow the

defense to bring in numerous witnesses (attorneys' law clerks and prisoners) to testify as to

appellant's prior consistent statements, i.e., that in prior conversations with them about the

case he had never made any admissions of guilt or implication. This motion was denied.

Appellant now contends, first, that the lower court erred in allowing the state to put on

evidence of the admission during its rebuttal period, and second, that the court erred in

denying his motion for a continuance.

[Headnote 1]

1. In Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968), the prosecution did not offer

testimony concerning an oral confession of defendant during its case in chief, but offered it

during rebuttal to impeach the defendant's testimony. There we held that the fact that the oral

confession was offered during rebuttal rather than in the case in chief was not a cause for

complaint where the evidence tended to impeach on a material point. See also, State v. Lewis,

50 Nev. 212, 233, 255 P. 1002, 1009 (1927), wherein this court stated as follows:

“[I]t is a generally accepted rule, regardless of the defense interposed, that where

rebuttal testimony is offered, which should have been more properly introduced in the

opening, it is within the discretion of the ��


trial court to allow it, which discretion is not reviewable in the absence of gross abuse.

Goldsby v. United States, 160 U. S. 70, 16 St. Ct. 216, 40 L. Ed. 343; 16 C.J. 868.”

We have reviewed the record and are unable to say that the trial judge was guilty of gross

abuse of discretion in allowing the state, during its rebuttal period, to introduce evidence

which, though it would have been proper as part of the case in chief, did tend to impeach

defendant's testimony on a material point.

[Headnote 2]

2. Motions for continuance are addressed to the sound discretion of the trial judge.

Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964); Ex Parte Groesbeck, 77 Nev. 412, 365

P.2d 491 (1961); Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). His exercise of discretion

is not to be disturbed absent clear abuse thereof. See, e.g., State v. Laws, 485 P.2d 144 (Idaho

1971). Having reviewed the record we find that the judge was within his broad discretion in

denying the motion for a continuance.

The reason for the request for continuance, according to appellant, was to allow time to get

impeachment witnesses in order to attempt to repair the damage done by officer Jackson's

testimony. It has been held that it is not an abuse of discretion to deny a continuance where

the testimony sought is to be used for impeachment purposes. State v. Cotton, 443 P.2d 404

(Ariz. 1968).

In the case at bar it came to the attention of defense counsel on Friday that the state

intended to call Jackson. This gave a full weekend to find impeachment evidence and arrange

for a few witnesses (some of whom were attorneys and law clerks working in defense

counsel's office) to testify as to defendant's prior consistent statements. State v. Cotton, supra;

State v. Kendall, 481 P.2d 265 (Ariz. 1971); State v. LeVar, 403 P.2d 532 (Ariz. 1965), cert.

denied, 382 U.S. 948 (1965).

In this case it does not appear that the court below abused its discretion either in allowing

Jackson to testify or in denying defendant's motion for a continuance. The judgment of

conviction is affirmed.


____________

��89 Nev. 285, 285 (1973) Scott v. Sheriff��

SYLVESTER SCOTT, Appellant v. SHERIFF, CLARK


No. 7358

June 29, 1973 511 P.2d 117



The Supreme Court held that where record did not contain transcript of challenged grand

jury proceedings, Supreme Court was unable to decide the issues presented and would not

consider the same.

Affirmed.

Morgan D. Harris, Public Defender, and William H. Whitehead, Deputy Public Defender,


Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Donald


Habeas Corpus.

Where record did not contain transcript of challenged grand jury proceedings, Supreme Court was

unable to decide the issues presented and would not consider the same. NRS 34.380, subd. 3, 177.205,

subd. 1.

OPINION

Per Curiam:

Charged with several crimes, appellant contends the trial court erred in failing to grant him

habeas relief. The record designated and submitted to us does not contain the transcript of the

challenged grand jury proceedings; therefore, we are “wholly unable to decide the issues

presented.” Lamoureux v. Sheriff, 85 Nev. 44, 449 P.2d 471 (1969). Other claimed errors are

not properly before this court and will not be considered. NRS 34.380(3); NRS 177.205(1).


____________

��89 Nev. 286, 286 (1973) Colton v. State��

JAMES P. COLTON, Appellant, v. THE STATE


No.7191

July 2, 1973 511 P.2d 112

Appeal from an order denying pre-trial writ of habeas corpus, First Judicial District Court,

Churchill County; Richard L. Waters, Jr., Judge.

Affirmed.

Harvey Dickerson, of Reno, for Appellant.

Robert List, Attorney General, Carson City; Michael Roth, District Attorney, and Dennis

E. Evans, Acting District Attorney, Churchill County, for Respondent.

OPINION

Per Curiam:

This appeal from the denial of pre-trial habeas relief challenges the validity of a portion of

the evidence on which the grand jury indicted appellant for furnishing a controlled substance

in violation of NRS 453.321. The challenge is without merit. The evidence in the record

which is not challenged is sufficient to establish probable cause that the offense was

committed by appellant. Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841 (1969); Glosen v.

Sheriff, 85 Nev. 166, 451 P.2d 843 (1969). The order of the district court is affirmed.

____________

��89 Nev. 286, 286 (1973) Baird v. Sheriff��

LINDA LOU BAIRD, Appellant, v. SHERIFF,

CLARK COUNTY NEVADA, Respondent.

No. 7130

July 2, 1973 511 P.2d 1052


Court, Clark County; Carl J. Christensen, Judge.

The Supreme Court held that evidence that defendant sold to an undercover agent capsules

of Lysergic acid diethylamide while representing such contraband to be Mescaline, sale of

which was equally criminal, indicated that defendant knew ��0�� 2��

��89 Nev. 286, 287 (1973) Baird v. Sheriff��

the contraband she sold had a “narcotic character” and furnished probable cause for grand

jury to hold her for trial.

Affirmed.






Evidence that defendant sold to undercover agent 10 capsules of Lysergic acid diethylamide while

representing such contraband to be Mescaline, sale of which was equally criminal, indicated that

defendant knew the contraband she sold had a “narcotic character” and furnished probable cause for

grand jury to hold her for trial. NRS 453.161, subd. 4 (i), (k).

OPINION

Per Curiam:

On appeal from an order denying pre-trial habeas relief, appellant contends probable cause

was not shown for the grand jury to hold her for trial.

Evidence in the record indicates that appellant sold an undercover agent 10 capsules of

Lysergic acid diethylamide (LSD), an act proscribed by NRS 453.161(4)(i). Evidence also

indicates appellant represented this contraband to be Mescaline, the sale of which is equally

criminal. NRS 453.161 (4)(k). Thus, evidence presented to the grand jury indicated that

appellant knew the contraband she sold had a “narcotic character.” 1 See Overton v. State, 78

Nev. 198, 370 P.2d 677 (1962). Cf. Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).

“The standard of probable cause is satisfied if the person against whom an indictment is

sought, either directly, or by necessary implication, represents that the substance he is selling

is [a controlled substance].” Glosen v. Sheriff, 85 Nev. 145, 148, 451 P.2d 841, 842 (1969).

The trial court correctly determined that the standard was met, and its order is affirmed.

____________________

1

Effective January 1, 1972, both Mescaline and Lysergic acid diethylamide are classified as “controlled

substances” rather than narcotics. See Stats. of Nev. 1971, ch. 667, p. 1999 et seq.

____________

��89 Nev. 288, 288 (1973) Moore v. Sheriff��

BOBBY LEE MOORE and SHERRY ANN BANKS, Appellants v.

SHERIFF, CLARK COUNTY, NEVADA, Respondent.

No. 7146

July 2, 1973 511 P.2d 1046



The Supreme Court held that initially filing in justice court the charges on which an

indictment was later returned did not give defendants a vested right to a preliminary

examination. The Court further held that dismissal of charges in the justice court did not

proscribe prosecution of defendants by indictment on the same charges, since, on the record,

it could not be said that the state had exhibited a willful disregard of, or conscious

indifference to, the rights of defendants.

Affirmed.

Morgan D. Harris, Public Defender, and Martin R. Boyers, Deputy Public Defender, Clark

County, for Appellants.

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.

Garner and Larry Leavitt, Deputy District Attorneys, Clark County, for Respondent.

1. Criminal Law. Initially filing in the justice court charges on which an indictment was later returned did not give

defendants a vested right to a preliminary examination.

2. Criminal Law. Dismissal of charges in the justice court did not proscribe prosecution of defendants by indictment of the

same charges, since, on the record, it could not be said that the state had exhibited a willful disregard of, or

conscious indifference to, the rights of defendants.

OPINION

Per Curiam:

Appellants, charged with three counts of robbery (NRS 200.380), and three counts of

battery with intent to commit robbery (NRS 200.400), appeared in the justice court at 2:00

o'clock p.m. September 28, 1972, for a scheduled preliminary examination. When their case

was called, the deputy district ��)��

��89 Nev. 288, 289 (1973) Moore v. Sheriff��

attorney orally announced that the state was not prepared to proceed and requested a

continuance. The magistrate refused the request and dismissed the complaint.

Earlier on the same day another deputy district attorney had submitted the identical

charges to the Clark County Grand Jury. An indictment was returned and filed at 2:01 o'clock

p.m. September 28, 1972.

A pre-trial habeas challenge to the indictment was denied and in this appeal appellants

contend (1) that once the charges had been filed in the justice court they had a vested right to

a preliminary examination and, (2) the dismissal of the charges in the justice court proscribes

their prosecution by indictment.

[Headnote 1]

1. The contention of a vested right to a preliminary examination is refuted by our recent

decision in Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973).

[Headnote 2]

2. The thrust of appellants' argument in support of their second contention suggests the

conduct of the district attorney's office is equivalent to the “conscious indifference to rules of

procedure affecting a defendant's rights” we condemned in State v. Austin, 87 Nev. 81, 482

P.2d 284 (1971), and the “willful disregard” of appellant's rights that existed in Hill v.

Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), and in Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332

(1970).

The same argument was considered and rejected by the district court, and in the record

before us, we find no error in its factual determination that the state had not exhibited the

willful disregard of, or conscious indifference to, the rights of an accused that existed in Hill,

Maes and Austin.

Affirmed.

____________

��89 Nev. 290, 290 (1973) King v. Baskin��

PERRY KING and VIOLA KING, Appellants, v. ROBERT BASKIN, DARWIN LAMB,

WILLIAM BRIARE, LOU LaPORTA, JAMES RYAN, County Commissioners of Clark

County, SOUTHERN NEVADA MEMORIAL HOSPITAL, JACK STAGGS, Administrator

Thereof, DR. WILLIAM B. RYDELL, Jr., and CLARK COUNTY, Respondents.

No. 7082

July 2, 1973 511 P.2d 115

Appeal from orders and judgments dismissing action, Eighth Judicial District Court, Clark

County; Leonard I. Gang and Carl J. Christensen, Judges.

Surviving parents of three-year-old boy who, during treatment for a scalp laceration, died

at a county public hospital appealed from orders of the district court, terminating parents'

wrongful death action brought against the county and others. The Supreme Court, Gunderson,

J., held that summary dismissal of the action against the county, on ground that plaintiffs

were tardy in presenting their claim to the board of county commissioners, was improper, in

view of recent decision voiding those statutory provisions declaring that no person shall sue a

state governmental entity for a demand arising out of governmental tort unless he first

presents a claim within six months from the time of the tort.

Reversed as to respondent Clark County; affirmed as to other respondents.

[Rehearing denied August 14, 1973]

Charles L. Kellar, of Las Vegas, for Appellants.

Paul C. Parraguirre, of Las Vegas, for Respondents.

1. Hospitals. Public hospital established by Clark County pursuant to statute is without legal entity and therefore

neither it nor its trustees is subject to suit. NRS 450.010 et seq.

2. Counties. Summary dismissal of action against county, on ground that plaintiffs were tardy in presenting their

wrongful death claim, stemming from death of their minor son at county public hospital, to the board of

county commissioners, was improper, in view of recent decision voiding those statutory provisions

declaring that no person shall sue a state governmental entity for a demand arising out of governmental tort

unless he first presents a claim within six months from the time of the tort. NRS 244.250, 450.010 et

seq.

��89 Nev. 290, 291 (1973) King v. Baskin��

3. Counties. In wrongful death action brought against county and others by the surviving parents of a three-year-old

boy who died at county public hospital during treatment for a scalp laceration, district court did not abuse

its discretion either in dismissing hospital administrator and county commissioners from the case, or in

retaining jurisdiction to reopen the case against them if that should later appear warranted. NRCP 12,

54(b), 56.

OPINION


Appellants Perry and Viola King, surviving parents of a three-year-old boy who died at

“Southern Nevada Memorial Hospital” during treatment for a scalp laceration he incurred

falling from a swing, have appealed sundry orders adversely terminating their wrongful death

action.

[Headnote 1]

1. Southern Nevada Memorial Hospital is a public hospital established by Clark County

pursuant to NRS 450.010 et seq. In Bloom v. Southern Nevada Memorial Hospital, 70 Nev.

533, 275 P.2d 885 (1954), and McKay v. Washoe General Hospital, 55 Nev. 336, 33 P.2d

755 (1934), this court held such a hospital is without legal entity, and therefore neither it nor

its trustees are subject to suit. On that authority, we affirm the district court's order dismissing

appellants' action as against “Southern Nevada Memorial Hospital.” 1

[Headnote 2]

2. In Hughey v. Washoe County, 73 Nev. 22, 306 P.2d 1115 (1957), we held: “The

hospital having no entity apart from the county it must follow that the county is the party

legally responsible for the obligations of the hospital.” 73 Nev., ��&@5�@/"�:�&��(�

____________________

1

In opposition, appellants' Opening Brief tenders these social views:

“It [Southern Nevada Memorial Hospital] carries its own liability insurance policy, different from Clark County,

and, therefore, contemplates liability for which it should be protected when it uses the monies of citizens to

purchase liability insurance, and the liability insurance company should not be allowed to collect all the monies

for liability insurance and then to claim no liability . . .”

Of course, if public funds have been expended for a policy issued to “Southern Nevada Memorial Hospital,”

insuring against torts of hospital personnel in the course of their employment, appellants may be entitled to

compensation from such policy. However, we consider that issue legally unrelated to the question of whether the

hospital is a proper party to this action.

��89 Nev. 290, 292 (1973) King v. Baskin��

at 23; 306 P.2d, at 1115. Notwithstanding, in this case the district court entered summary

judgment in favor of Clark County itself, because appellants were tardy in presenting their

claim to the board of county commissioners. See: NRS 244.250. On the authority of Turner v.

Staggs, 89 Nev. 230, 510 P.2d 879 (1973), that judgment must be reversed. “The statutory

provisions of this state which provide that no person shall sue a governmental entity of this

state for a demand arising out of governmental tort unless he first presents a claim within 6

months from the time such tort occurred are void and of no effect.” 89 Nev. at 235; 510 P.2d

at 883.

3. Apparently believing that appellants had named respondent Staggs a defendant solely

because he was the hospital's administrator, and had named respondents Baskin, Lamb,

Briare, LaPorta and Ryan solely because they were county commissioners, the district court

granted their motions to dismiss. NRCP 12. Similarly, apparently believing the record before

it left no genuine issue of fact concerning appellants' claim against respondent Rydell, the

district court granted his motion for summary judgment. NRCP 56. However, those rulings

were without finality until disposition of the action as against Clark County; for the court

made no express determination that there was no just cause for delay, and no express

direction for the entry of judgment. NRCP 54(b); Van Dyk v. Earl, 87 Nev. 541, 490 P.2d

1057 (1971); Monsour v. Haddad, 87 Nev. 448, 488 P.2d 916 (1971); Donoghue v. Rosepiler,

83 Nev. 251, 427 P.2d 956 (1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963).

[Headnote 3]

Reviewing what record is before us, we cannot say the district court erred, either in

dismissing the aforementioned persons from the case, or in retaining jurisdiction to re-open

the case against them if that should later appear warranted. We order that, on remand for

disposition of appellants' claim against Clark County, the district court's orders concerning

Mr. Staggs, the county commissioners, and Dr. Rydell will remain “subject to revision at any

time before the entry of judgment adjudicating all the claims and the rights and liabilities of

all the parties.” NRCP 54(b); cf. Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971). 2 �4�� @

____________________

2

The parties' briefs do not thoroughly explore, and we will not now assay to delineate, the circumstances

under which a county hospital administrator or the county commissioners may be liable to persons negligently or

willfully injured at such a facility.

��89 Nev. 290, 293 (1973) King v. Baskin��

The judgment in favor of Clark County is reversed, and the cause remanded for

proceedings consistent herewith. 3


____________________

3

This court had not yet decided Turner v. Staggs, supra, when the district court, acting through Judge

Christensen, entered judgment for Clark County. Hence, that precedent was not then available for his guidance.

Judge Gang entered the other orders mentioned herein.

____________

��89 Nev. 293, 293 (1973) Nevada Lakeshore Co. v. Diamond Elec., Inc.��

NEVADA LAKESHORE COMPANY, INC., CLARENCE D. REDFIFLD, and H. L.

SNYDER, Appellants, v. DIAMOND ELECTRIC, INC., a Nevada corporation,

DIAMOND ELECTRIC COMPANY, a copartnership, JACK H. LEMAY, and JAMES

G. SALING, Respondents.

No. 6979

July 3, 1973 511 P.2d 113

Appeal from summary judgment. Second Judicial District Court, Washoe County; Emile J.

Gezelin, Judge.

Heirs of individual who was accidentally electrocuted while swimming in pool of

apartment complex brought wrongful death action against owner and operator of pool, its

maintenance employee and another, in which defendants commenced third-party indemnity

action against designer and installer of electrical system for pool and supplier of component

parts thereof. The district court rendered summary judgment for third-party defendants, and

third-party plaintiffs appealed. The Supreme Court, Zenoff, J., held that statute providing that

no action in tort, contract or otherwise shall be commenced against any person furnishing

design or supervision of an improvement to real property more than 6 years after substantial

completion of improvement included actions for indemnity. Also, the Court held that 6-year

period commences at time of substantial completion rather than at time when injury or

damages must occur or are discovered. Further, the Court held that indemnity action was

barred where injury occurred more than 10 years after substantial completion of

improvement.

Affirmed.


Richard P. Wait, Ltd., of Reno, for Appellants.

Leggett & Hamilton, of Reno, for Respondents.

1. Limitation of Actions. Phrase “action in tort, contract or otherwise,” as used in statute providing that no such action shall be

commenced against any person performing or furnishing design, planning, supervision or observation of

construction of an improvement to real property more than 6 years after substantial completion of

improvement includes actions for indemnity. NRS 11.205.

2. Limitation of Actions. Under statute providing that no action in tort, contract or otherwise shall be commenced against any

person performing or furnishing design, planning, supervision or observation of construction or

construction of an improvement to real property more than 6 years after substantial completion of

improvement, the 6-year period commences on substantial completion of improvement rather than on date

injury or damage might occur or be discovered. NRS 11.205.

3. Limitation of Actions. Action by owner of swimming pool, its maintenance employee and others against designer and installer

of swimming pool electrical system and supplier of component parts thereof seeking indemnity, on theories

of negligence, breach of warranty and strict liability in tort, for any judgment recovered against owner and

others for wrongful death of plaintiff's decedent, whose accidental electrocution while swimming in pool

was reportedly due to improper wiring, where injury did not occur until more than 10 years after

completion of pool. NRS 11.205.

OPINION


Respondents are third-party defendants in an action that arose from the accidental

electrocution of Karl Breckenridge while he was swimming in the swimming pool owned and

possessed by the Nevada Lakeshore Company, Inc. as part of an apartment complex. Clarence

Redfield, a maintenance employee of the corporation, performed electrical repairs at the pool

which resulted in some misdirected wires so that the electric current went into the water of

the pool instead of to the pool light fixture. As a result Breckenridge was killed. One of the

claims of negligence against these respondents who furnished the materials and wiring system

for the pool was that the wiring was not properly color coded when installed and as a result

the colored wire that should have gone to the light fixture went instead to the pool.

The heirs of Breckenridge commenced a wrongful death ��


action against the appellants. Appellants (defendants below) then commenced a third-party

action against respondents who designed and installed the electrical system and furnished the

component parts thereof. This suit sought indemnity on theories of negligence, breach of

warranty and strict liability in tort, in substance, that the electrical system and parts were

defective in several respects and were improperly installed.

Respondents moved for summary judgment on the ground that the installation of the

electrical system was substantially completed more than 10 years prior to the injury and death

and that therefore NRS 11.205 precluded judgment against them as a matter of law.

The motion was granted and summary judgment was entered on behalf of third-party

defendants (respondents).

Appellants contend, first, that NRS 11.205 is not applicable to a suit for indemnity, and

second, that if applicable, the 6-year period should be held to begin running at the time of the

occurrence of the injury or damages rather than at the time of substantial completion of the

construction.

1. NRS 11.205 provides as follows:

“1. No action in tort, contract or otherwise shall be commenced against any person

performing or furnishing the design, planning, supervision or observation of

construction, or the construction, of an improvement to real property more than 6 years

after the substantial completion of such an improvement, for the recovery of damages

for:

(a) Any deficiency in the design, planning, supervision or observation of

construction or construction of such an improvement; or

(b) Injury to real or personal property caused by any such deficiency; or

(c) Injury to or wrongful death of a person caused by any such deficiency.

. . . .

3. Where an action for damages for wrongful death or injury to person or property

caused by any deficiency in an improvement to real property is brought against a person

in actual possession or control as owner, tenant or otherwise of such improvement, the

limitation prescribed by this section shall not be a defense for such person.”

[Headnote 1]

The apparent purpose of NRS 11.205 is to afford ultimate repose and protection from

liability for persons engaged in the ��


designing, planning and construction of improvements to realty. Without protection such

persons would be subject to liability for many years after they had lost control over the

improvement or its use or maintenance. See Rosenberg v. Town of North Bergen, 293 A.2d

662 (N.J. 1972). 1 Evidently the legislature felt that the period of 6 years was a suitable

terminus. The statute says, “No action in tort or contract or otherwise. . . .” We take that

inclusive language to include actions for indemnity. To hold otherwise would thwart the

purpose of the enactment.

[Headnote 2]

2. The statute is plain and must be viewed as controlling as to the question when the

period of limitations begins running. The point at which the 6-year period commences is,

according to NRS 11.205, “substantial completion of such an improvement”—regardless of

when any injury or damages might occur or be discovered.

We have considered appellants' analogy between actions for indemnity and those for

contribution and their argument, citing NRS 17.210 et seq., that as to such actions a statute of

limitations may never commence running until the joint tortfeasor is held legally liable. We

find this contention to be without merit and are compelled to rely on the plain meaning of

NRS 11.205.

[Headnote 3]

In summary, NRS 11.205 does bar actions for indemnity and the period of limitations

commences at the time of substantial completion of the construction. Accordingly appellants'

cause of action against respondents cannot stand because the injury did not occur until 10

years after the substantial completion of the improvement, i.e., 4 years after the 6-year statute

had run.

Affirmed.


____________________

1

The New Jersey statute specifically refers to indemnity actions. Nevertheless, that case is applicable to ours.

Even the constitutionality of the statute was upheld there, an issue not presented to this court.

____________

��89 Nev. 297, 297 (1973) Jennings v. State��

JERRY LEMAR JENNINGS, Appellant, v. THE


No. 6814

July 3, 1973 511 P.2d 1048

Appeal from an order revoking probation, Eighth Judicial District Court; Howard W.

Babcock, Judge.

The Supreme Court, Batjer, J., held that the totality of the circumstances including

defendant's use of heroin required revocation of probation, notwithstanding defendant's

contention that the district court when it put him on probation knew that he was a narcotics

addict and decreed an impossible condition of probation and that imposition of an

unreasonable condition followed by revocation for predictable failure to comply was an error

of constitutional magnitude.

Affirmed.

Morgan D. Harris, Public Defender, Jeffrey D. Sobel, Deputy Public Defender, Clark


Robert List, Attorney General, State of Nevada; Roy A. Woofter, District Attorney, and


1. Drugs and Narcotics. Defendant before injecting himself with heroin was in physical possession of prohibited narcotic and on

each such occasion violated laws of the state. NRS 453.161, subd. 3(j), 453.330, 453.336.

2. Constitutional Law. Requirements of due process generally apply to probation revocations.

3. Criminal Law. Requiring convicted felon as condition of his probation to obey existing law is not cruel and unusual

punishment. U.S.C.A. Const. Amend. 8; Const. art. 1, § 6.

4. Criminal Law. Where at time of sentencing for robbery, district court was aware that defendant had “tried” narcotics, but

it was indicated that defendant could overcome the problem and defendant was granted probation on

condition that he should not use, etc., any narcotics or dangerous drugs unless prescribed and that

defendant should comply with all municipal, etc., laws, ordinances and orders, totality of circumstances

including defendant's use of heroin required revocation of probation, notwithstanding defendant's

contention that district court when it put him on probation knew that he was narcotics addict and decreed

impossible condition of provision and that imposition of unreasonable condition ��


followed by revocation for predictable failure was constitutional error. NRS 200.380, 453.161,

453.330, 453.336; U.S.C.A.Const. Amend. 8; Const. art. 1, § 6.

OPINION


On April 8, 1969, the appellant, Jerry Lemar Jennings, acting as the gunman participated

in the armed robbery of an establishment known as Gabe's Bar located in North Las Vegas,

Nevada. Jennings and his accomplice ordered the patrons to lie face down on the barroom

floor with the threat “Lie down or I'll kill you.” Then they proceeded to rifle the cash register

and to lift wallets and extract currency from the prone victims. Police officers arrived at the

scene while the armed robbery was in progress. Discretion prompted Jennings to drop the

loaded pistol, upon orders from a policeman, with a drawn weapon.

After his arrest the appellant was admitted to bail and later pleaded guilty to robbery (NRS

200.380). Thereafter he was sentenced to a 10-year suspended prison term and placed on four

years probation.

As a routine condition of probation the district court required of him that: “You shall not

use, purchase, possess, give, sell or administer any narcotic drugs, nor any dangerous drugs,

unless first prescribed by a licensed physician.” At the time of sentencing, the district court

was aware that Jennings had “tried” narcotics. However, he indicated he could overcome the

problem. As another condition of probation the district court ordered: “You shall comply with

all municipal, county, state and federal laws, ordinances and orders and to conduct yourself as

a good citizen.”

Immediately after granting the appellant probation the court continued his custody for a

brief period because a urinalysis revealed a trace of narcotics. He was subsequently released

on probation and three months later he was again brought before the trial judge on drug

related charges. Finally, eight months after sentencing, the trial judge revoked probation

because the appellant had continued to violate its terms. At the revocation hearing the

appellant admitted extensive drug use and indicated that because of his addiction he would

likely be unable to hold a job. This appeal is from the order revoking probation and enforcing

the execution of a sentence previously imposed.

The appellant contends that the district judge who granted ��


probation knew that he was addicted to narcotics and therefore it was error to order as a

condition of probation that he refrain from the use, purchase and possession of any narcotic

drug unless first prescribed by a licensed physician. He further urges that the imposition of an

unreasonable condition followed by a revocation for a predictable failure to comply with such

a condition was an error of constitutional magnitude.

In granting probation a trial judge must be guided by the presentence probation report.

Jennings told the parole-probation officer who conducted the interview that he had used

marijuana approximately ten times in the space of two years and tried heroin once in 1970.

During probation he took no affirmative steps whatsoever to receive any medical help or

other services to aid him in conquering his problem with narcotics and to become

rehabilitated. Instead, while the probation officers, public defender, deputy district attorney

and the district judge were all exerting a considerable degree of effort to aid Jennings he was,

with calculated deceit and deception, continually and purposefully violating the laws of this

state (NRS 453.330) and the terms of his probation. Now, relying upon his calculated deceit,

he claims that the trial judge knew at the time of sentencing that he was a narcotics addict and

that the judge decreed an impossible condition of probation.

[Headnote 1]

In support of his position the appellant relies heavily upon Sweeney v. United States, 353

F.2d 10 (7th Cir. 1965), where it was held to be unreasonable to forbid an alcoholic to drink

as a condition of probation. The Oregon Supreme Court in Sobota v. Williard, 427 P.2d 758

(1967), and the Minnesota Supreme Court in Upchurch v. State, 184 N.W.2d 607 (1971),

chose not to follow the Sweeney case. In each of those cases the substance involved was

alcohol. The possession and use of alcohol was not in those jurisdictions, nor is it here, illegal

per se. Under oath Jennings admitted that from approximately mid-September 1971 until the

first week in October 1971, he was injecting into his body one or more doses of heroin per

day. By these admissions he concedes felonious activity. Before he injected himself he was in

physical possession of a prohibited narcotic and on each of those occasions violated the laws

of this state. NRS 453.210 and NRS 453.330. 1 In Sweeney, when probation was granted, the

federal district court knew ��+��

____________________

1

On the dates involved heroin was classified as a proscribed narcotic. Since January 1, 1972, heroin has been

classified as a proscribed controlled substance (NRS 453.161(3)(j) and NRS 453.336). See Stats. of Nev. 1971,

ch. 667, p. 1999 et seq.


Sweeney's history of chronic alcoholism and had indications of its pathological nature. Here

the trial court was lead by Jennings to believe that he had been an infrequent user of

marijuana and had only once before tried heroin.

[Headnote 2]

The requirements of due process in general apply to probation revocations. In Morrissey v.

Brewer, 408 U.S. 471 (1972), 2 the United States Supreme Court quoting from Graham v.

Richardson, 403 U.S. 365 (1971), wrote: “[T]his Court now has rejected the concept that

constitutional rights turn upon whether a governmental benefit is characterized as a ‘right' or

as a ‘privilege.'” 408 U.S. at 481.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), the High Court pointed out:

“There [Morrissey v. Brewer, 408 U.S. 471 (1972)] we held that the revocation of parole is

not a part of a criminal prosecution. ‘Parole arises after the end of the criminal prosecution,

including imposition of sentence. . . . Revocation deprives an individual, not of the absolute

liberty to which every citizen is entitled, but only of the conditional liberty properly

dependent on observance of special parole restrictions.' 408 U.S., at 480.”

[Headnote 3]

The condition of probation which the appellant contends to be cruel and unusual

punishment is nothing more than a requirement that he obey the laws of this state. It is a

violation of our laws to use, purchase, possess, give, sell or administer any narcotic drugs, or

any dangerous drugs, unless first prescribed by a licensed physician. NRS ch. 453. Requiring

a convicted felon as a condition of his probation to obey the existing law is not cruel and

unusual punishment proscribed by the United States Constitution, Amend. VIII, and the

Constitution of Nevada, Art. 1, sec. 6. Cf. Springer v. United States, 148 F.2d 411 (9th Cir.

1945).

Society as well as the probationer has a keen interest in his restoration to a “normal and

useful life within the law” and that he be treated with basic fairness. Morrissey v. Brewer,

supra.

____________________

2

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), held that Morrissey v. Brewer is applicable to

probation revocation and in footnote No. 4 of Gagnon the High Court noted: “It is clear at least after Morrissey

v. Brewer, supra, that a probationer can no longer be denied due process, in reliance on the dictum of Escoe v.

Zerbst, 295 U.S. 490, 492 (1935), that probation is an ‘act of grace.'”


[Headnote 4]

In the exercise of its discretion the district court balanced the respective interest involved

and was properly guided by the considerations for public safety as well as the rehabilitation of

the appellant. The totality of the circumstances required revocation. State v. Montgomery,

474 P.2d 780 (Ore. 1970); State v. Frye, 465 P.2d 736 (Ore. 1970); People v. Brown, 342

P.2d 410 (Cal.App. 1959). Contrary to the appellant's allegations, he is not being punished for

drug addiction, but instead he is being punished as a convicted robber.



____________

��89 Nev. 301, 301 (1973) Skeen v. Valley Bank of Nevada��

CLYDE E. SKEEN, Appellant, v. VALLEY

BANK OF NEVADA, Respondent.

No. 6988

July 9, 1973 511 P.2d 1053

Appeal from an order striking the appellant's answer, entering default and awarding

judgment. Second Judicial District Court, Washoe County; John W. Barrett, Judge.

Bank brought suit against guarantor to recover on note. The district court struck

defendant's answer, entered default and awarded judgment, and defendant appealed. The

Supreme Court, Batjer, J., held that it was not abuse of discretion to impose such sanctions

for defendant's unexplained failure to appear at designated time and place for taking of his

deposition.

Affirmed.

[Rehearing denied September 17, 1973]

A. D. Demetras, of Reno, for Appellant.

McDonald, Carano, Wilson & Bergin and Gary A. Wood, of Reno, for Respondent.

1. Judgment. Striking defendant's answer, entering default and awarding judgment for full amount of guarantee on

note, plus interest and attorney fees, as provided for in note, was not abuse of discretion and constituted

appropriate penalty for guarantor's unexplained failure to appear at designated time and place for taking his

deposition. NRCP 37, 37(b) (2) (C), (d).


2. Judgment. Default judgments will be upheld where the normal adversary process has been halted due to an

unresponsive party; diligent parties are entitled to be protected against interminable delay and uncertainty

as to their legal rights.

3. Bills and Notes. Where promissory note provided for reasonable attorney fees on default or suit payee was entitled to

recover such fees on rendition of default judgment against guarantor. NRCP 37.

OPINION


On September 8, 1971, the appellant guaranteed to the respondent bank a promissory note

of $400,000.00 made by Reno Race Park, Inc. The note, which became due on December 8,

1971, carried an interest rate of nine percent (9%) and provided for reasonable attorneys' fees

in the event of default or suit thereon. Default occurred, with neither interest nor principal

having been paid.

On January 4, 1972, the respondent filed a complaint against the appellant to recover on

the promissory note that had been guaranteed by him. The appellant's answer was filed on

January 28, 1972. The respondent then submitted a request for admissions which were in turn

answered. On March 17, 1972, the respondent filed a notice to take the appellant's deposition

on April 3, 1972. The parties stipulated that the time for taking the deposition would be

continued until April 17, 1972. The appellant did not appear on that date, nor was any excuse

given for his absence. His attorney, who appeared at the designated time and place for the

taking of the deposition, expressed surprise at the non-appearance of his client and indicated

that he had received no communication from the appellant which would explain his absence.

The reporter commissioned to take the deposition, issued a certification of non-appearance

against the appellant.

Upon motion by the respondent, the trial court struck appellant's answer, entered its default

and awarded judgment for the full amount of the note, plus interest and attorney fees, to the

respondent. The appellant contends that the action of the trial court was an unduly harsh

sanction and constituted ��


an abuse of discretion. He also seems to contend that a violation of due process occurred. 1

The sanctions imposed in this case, are explicitly authorized under NRCP 37(d) and

NRCP 37(b)(2)(C). NRCP 37(d) was amended effective September 27, 1971, to delete the

requirement that the failure to appear was “willful.” NRCP 37(d) as presently worded reflects

the amendment to the Federal Rules of Civil Procedure, effective July 1, 1970.

Since the amendment of NRCP 37, sanctions are permissible without consideration of

whether the unexcused failure to make discovery was willful. 2

[Headnote 1]

The imposition by the trial court of these sanctions is not unique and does not amount to

an abuse of discretion. Bollard v. Volkswagen of America, Inc., 56 F.R.D. 569 (W.D.Mo.

1971); Marriot Homes, Inc. v. Hanson, 50 F.R.D. 396, (W.D.Mo. 1970); Schatz v. Devitte,

75 Nev. 124, 335 P.2d 783 (1959). See 4A Moore's Federal Practice § 37.05. Cf. Kahn v.

Secretary of Health, Education, and Welfare, 53 F.R.D. 241 (D.Mass. 1971), and Conrad v.

Sadur, 83 Nev. 39, 422 P.2d 236 (1967).

[Headnote 2]

Default judgments will be upheld where the normal adversary process has been halted due

to an unresponsive party, because diligent parties are entitled to be protected against

interminable delay and uncertainty as to their legal rights. H. F. Livermore Corp. v.

Aktiengesellschaft Gebruder L., 432 F.2d 689 (D.C.Cir. 1970).

____________________

1

In Hovey v. Elliott, 167 U.S. 409 (1897), it was held that punishment of a defendant contemner by depriving

him of a hearing on the merits is violative of the due process requirements of the Federal Constitution, but this

holding was limited by Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), “by holding that a court could

properly strike an answer and enter default judgment under circumstances where a party fails to produce

documents as ordered.” Norman v. Young, 422 F.2d 470, 473 (10th Cir. 1970). See also, Anno., 14 A.L.R. 2d at

593.

2

In Societe Internationale v. Rogers, 357 U.S. 197 (1958), the High Court held that a default judgment is a

proper sanction if the failure to make discovery is due “to willfulness, bad faith or any fault” and not “due to

inability,” and concluded that willfulness was revelant [relevant] only to the selection of sanction, if any, to be

imposed. The new provisions of Fed.R.Civ.P. 37 were promulgated to bring the rule into harmony with the

holding in Rogers. See also, Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970).


[Headnote 3]

Here the promissory note provided for reasonable attorney fees upon default or suit. NRCP

37 also permits an award of attorney fees. Upon the authority of Brunzell v. Golden Gate

Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969), and Campanelli v. Altamira, 86 Nev. 838, 477

P.2d 870 (1970), we affirm the district court's award of attorney fees.

The order and judgment of the district court is affirmed.

Thompson, C.J., and Mowbray, Gunderson, and Zenoff, JJ., concur.

____________

��89 Nev. 304, 304 (1973) Johnson v. Sheriff��

KEITH JOHNSON, Appellant, v. SHERIFF,

WASHOE COUNTY, NEVADA, Respondent.

No. 7343

July 9, 1973 511 P.2d 1051

Appeal from an order denying pre-trial writ of habeas corpus, Second Judicial District

Court, Washoe County; James J. Guinan, Judge.

The Supreme Court held that failure of prosecutor to produce corroborating witness at

preliminary examination to provide support for incriminating testimony given by accomplice

did not amount to conscious indifference to rules of procedure affecting defendant's rights nor

willful disregard of defendant's rights such as to proscribe indictment charging defendant with

offenses identical to those dismissed in justice court upon conclusion of preliminary

examination.

Affirmed.

[Rehearing denied August 23, 1973]

Robert A. Grayson, of Carson City, for Appellant.

Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Alvin J.

Hicks, Deputy District Attorney, Washoe County, for Respondent.


Failure of prosecutor to produce corroborating witness at preliminary examination to provide support for

incriminating testimony given by accomplice did not amount to conscious indifference to rules of

procedure affecting defendant's rights nor � �� +�� #��

��89 Nev. 304, 305 (1973) Johnson v. Sheriff��

willful disregard of defendant's rights such as to proscribe indictment charging defendant with offenses

identical to those dismissed in justice court upon conclusion of preliminary examination.

OPINION

Per Curiam:

At the conclusion of a preliminary examination charges of third degree arson (NRS

205.020) and arson with intent to defraud an insurer (NRS 205.030) were dismissed against

appellant. Twelve days after the charges were dismissed in the justice court, the Washoe

County Grand Jury returned an indictment charging appellant with the identical offenses. A

pre-trial habeas challenge to the indictment was denied and in this appeal appellant contends

(1) the dismissal of the charges in the justice court proscribes the subsequent indictment, and

(2) there was insufficient evidence submitted to the grand jury to establish probable cause to

hold him for trial. The latter contention is not seriously argued and is summarily rejected.

The instant charges arose out of a scheme to burn a slightly damaged automobile and

collect its full value from an insurance carrier. The owner of the vehicle paid appellant and

Robert Gentlemen $200.00 to burn the automobile, which they did. Gentlemen, having been

granted immunity from prosecution, implicated appellant when he testified at the preliminary

examination and before the grand jury. The parties concede that Gentlemen was an

accomplice in the illegal activity.

The dismissal of the proceedings in the justice court, according to the magistrate, was

because the testimony of the accomplice [Gentlemen] was not corroborated. When the

charges were subsequently submitted to the grand jury an additional witness was called and

his testimony corroborated the incriminating testimony given by Gentlemen.

The thrust of appellant's central argument suggests the failure of the prosecutor to produce

a corroborating witness at the preliminary examination is equivalent to the “conscious

indifference to rules of procedure affecting a defendant's rights” we condemned in State v.

Austin, 87 Nev. 81, 482 P.2d 284 (1971), and the “willful disregard” of appellant's rights that

existed in Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), and in Maes v. Sheriff, 86 Nev.

317, 468 P.2d 332 (1970).

The district court rejected the same argument and we find no error in its factual

determination that the state had not exhibited willful disregard of, or conscious indifference

to, appellant's rights.

Affirmed.

____________

��89 Nev. 306, 306 (1973) Budget Financial Corp. v. System Inv. Corp.��

BUDGET FINANCIAL CORPORATION and FIRST AMERICAN TITLE INSURANCE

COMPANY (Formerly NEVADA TITLE GUARANTY COMPANY), Appellants, v.

SYSTEM INVESTMENT CORPORATION (Formerly GROUSE CREEK RANCHES),

and PACIFIC WESTATES CORPORATION, Respondents.

No. 6983

July 10, 1973 511 P.2d 1047

Appeal from order denying motions to dismiss, to discharge and dissolve attachment and

garnishment, and to vacate judgment; Fourth Judicial District Court, Elko County; John E.

Gabrielli, Judge.

Following remand, 87 Nev. 419, 488 P.2d 917 (1971), the district court entered an order

denying motions to dismiss, discharge and dissolved attachment and garnishment, and an

appeal was again taken. The Supreme Court held that as to all matters encompassed by the

judgment concerned in prior appeal to it, the action was terminated when remittitur was

issued; accordingly, the instant appeal taken from trial court's order denying appellants'

request to proceed contrary to the instructions of the Supreme Court on the remand had to be

dismissed.

Appeal dismissed.

McCune and Associates, Paul J. Williams, and Virgil D. Dutt, of Reno, for Appellants.

Wilson and Wilson, of Elko, and Keith Williams, of Santa Ana, California, for

Respondents.

Appeal and Error.

As to all matters encompassed by the judgment concerned in first appeal to the Supreme Court, the

action was terminated when remittitur was issued; accordingly, the appeal taken from trial court's order

denying appellants' request to proceed contrary to the instructions of the Supreme Court on the remand

had to be dismissed.

OPINION

Per Curiam:

On an earlier appeal, we determined the respective lien priorities of Budget Financial

Corporation and Grouse Creek Ranches in property of Pacific Westates Corporation, and�� +��

��89 Nev. 306, 307 (1973) Budget Financial Corp. v. System Inv. Corp.��

remanded the case for an accounting and distribution of the debtor's property in accordance

with the lien priorities thus determined. Grouse Cr. Ranches v. Budget Financial Corp., 87

Nev. 419, 488 P.2d 917 (1971). After remittitur, the instant appellants moved the trial court to

proceed contrary to our instructions, contending for the first time that Nevada's

attachment-garnishment procedures are unconstitutional. From the trial court's order denying

appellants' request, a purported second appeal has been taken.

As to all matters encompassed by the judgment concerned in the first appeal, the action

was terminated when remittitur was issued. Cowgill v. Dodd, 87 Nev. 401, 488 P.2d 353

(1971); Misty Management v. District Ct., 83 Nev. 180, 426 P.2d 728 (1967). Accordingly,

this appeal is dismissed. The trial court will proceed in accord with our prior opinion.

____________

��89 Nev. 307, 307 (1973) Sheridan v. State��

ROBERT SHERIDAN, Appellant, v.


No. 6616

July 10, 1973 511 P.2d 112

Appeal from judgment of conviction and sentence, and order denying motion for new trial,

Second Judicial District Court, Washoe County; John W. Barrett, Judge.

Affirmed.

Paul H. Lamboley, of Reno, for Appellant.

Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and


OPINION

Per Curiam:

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant's court-appointed counsel

has submitted a brief raising such issues as he believes the record may arguably support. A

copy of counsel's brief has been furnished appellant, who has been allowed and has availed

himself of the opportunity to raise additional issues he believes the record supports. Upon�#��

��89 Nev. 307, 308 (1973) Sheridan v. State��

examination of the proceedings, none of the issues raised by appellant or his counsel appear

arguable. Hence, we summarily affirm appellant's conviction and sentence.

We direct the district court to give appellant's counsel the certificate specified in NRS

7.260 to enable him to receive compensation for his services on this appeal.

____________

��89 Nev. 308, 308 (1973) Mullen v. Clark County��

ROBERT E. MULLEN, Appellant, v. CLARK COUNTY, a Political Subdivision of the State

of Nevada; ROBERT T. BASKIN, WILLIAM H. BRIARE, DARWIN W. LAMB, LOU F.

LA PORTA, JAMES G. RYAN, JAMES BRENNAN and ROBERT BROADBENT,

Individually and as Clark County Commissioners, Respondents.

No. 6880

July 10, 1973 511 P.2d 1036

Appeal from judgment of Eighth Judicial District Court, Clark County; Leonard I. Gang,

Judge.

Action upon overtime claims against the county. The district court granted the county's

“summary judgment” motion and denied the summary judgment of the employee. The

employee appealed. The Supreme Court, Zenoff, J., held that the county Director of Juvenile

Court Services was an “employee” rather than an “official” of the county, within a statute

which assertedly precluded officers from recovering compensation for overtime but which in

fact approved overtime pay as an alternative to compensatory vacation time as compensation

for overtime hours worked by employees to meet certain emergency situations. The Court

also held that a statement in a county ordinance that overtime work is to be discouraged and a

requirement that advance approval be secured by one's supervisor from the Board of County

Commissioners did not curtail the county employee's right to compensation for work already

performed under knowledge and sanction and at encouragement of his superior and

occasionally upon express direction of individual county commissioners.


McDaniel, D. J., and Mowbray, J., dissented.

[Rehearing denied August 23, 1973] ��8��;��8��-��G��*��


Harry J. Mangrum, Jr., of Las Vegas, for Appellant.

Roy A. Woofter, District Attorney, and George F. Ogilvie, Jr., Chief Civil Deputy District

Attorney, Clark County, for Respondents.

1. Counties.

County Director of Juvenile Court Services was “employee” rather than “officer” of county, within statute

which assertedly precluded officers from recovering compensation for overtime but which in fact approved

overtime pay as alternative to compensatory vacation time as compensation for overtime hours worked by

employees to meet certain emergency situations. NRS 281.005, subd. 1, 281.100.

2. Officers. Term “officials” used in statute approving overtime pay as alternative to compensatory vacation time as

compensation for overtime hours worked by employees to meet certain emergency situations should be

construed to mean “public officer” as such words are used in statute defining public officer as person

elected or appointed to position established by Constitution or statute or by charter or ordinance of political

subdivision of state which position involves continuous exercise, as part of regular and permanent

administration of government, of public power, trust or duty. NRS 281.005, subd. 1.

3. Counties. Statement in county ordinance that overtime work is to be discouraged and requirement that advance

approval be secured by one's supervisor from Board of County Commissioners did not curtail county

employee's right to compensation for work already performed under knowledge and sanction and at

encouragement of his superior and occasionally upon express direction of individual county

commissioners. NRS 281.005, subd. 1, 281.100.

4. Appeal and Error; Judgment. Where respondent's motion for “summary judgment” was upon sole ground of failure to state claim upon

which relief could be granted, it was in effect motion to dismiss, and where appellant's motion was for

summary judgment or, in alternative, partial summary judgment on issue of liability, parties were not to be

viewed as having conceded, by filing the cross motions, that there remained no genuine issues as to any

material facts, and accordingly, it was appropriate to remand case, after appellant was found entitled to

summary judgment on issue of liability, for further trial on issue of amount of overtime compensation due.

NRCP 56(c).

OPINION


Appellant was employed by respondent Clark County on April 21, 1961 as a Deputy

Probation Officer. On November 18, 1963 he was promoted to Chief Probation Officer and

on 8��!�� "!��< ��8�� ;��!�� "'�


June 4, 1964 to Director of Juvenile Court Services, which position he held until March 4,

1968. On that date he was incapacitated by a massive cerebral stroke. While he was

recuperating Mullen was replaced as Director of Juvenile Court Services and he filed ten

claims against the county for back overtime. These claims, however, were not acted upon and

this suit followed.

Appellant moved for summary judgment, or alternatively, for partial summary judgment

on the issue of liability. Shortly thereafter respondents moved for “summary judgment” on the

ground that the complaint “fails to state any cause of action upon which relief can be

granted.” The trial court, after considering both motions and the accompanying affidavits,

interrogatories and points and authorities, found inter alia that during the entire period of his

employment with respondent Clark County, appellant was a “classified” employee, and that

during such time it was his “custom and practice each week to work a tremendous number of

hours in excess of the ‘normal' work week. . . . A portion of the overtime work was on the

direction of his supervisor and occasionally upon the direction of individual county

commissioners. At all times it was known by his immediate supervisor that he was constantly

working overtime.” Nevertheless, the trial court held that as a matter of law he was not

entitled to compensation for his overtime. Accordingly, an order was entered denying

appellant's motion and granting that of respondent.

On appeal, this court is faced with the question whether appellant is precluded by law from

recovering compensation for his overtime.

[Headnotes 1, 2]

1. Respondents urge this court to view appellant as having been an “officer” rather than an

“employee” of respondent Clark County and cite NRS 281.100 for the proposition that

“officers” may not recover compensation for their overtime. That statute in fact approves

overtime pay as an alternative to compensatory vacation time as compensation for overtime

hours worked by employees to meet certain emergency situations.

Mullen was not an official of the county within the contemplation of NRS 281.100. The

term “officials” used in NRS 281.100 should be construed to mean a “public officer” as those

words are used in NRS 281.005(1). A public officer is there defined as a person elected or

appointed to a position which (a) is established by the constitution or a statute of �� 5��>�?� �� #��


this state or by a charter or ordinance of a political subdivision of this state; and (b) involves

the continuous exercise, as part of the regular and permanent administration of the

government, of a public power, trust or duty. This definition of a public officer was

introduced into the Act in 1967 (see, 67 Stats. 1471) and became effective January 1, 1968.

Of course, Mullen's claim for overtime compensation runs from April 21, 1961 to September

12, 1968. In any event, it seems that the statutory definition of a public officer is in harmony

with case law previously decided and contemplates that the individual in question is invested

with some portion of the sovereign functions of government. See, State ex rel. Kendall v.

Cole, 38 Nev. 215, 219, 148 P. 551 (1915); State ex rel. Mathews v. Murray, 70 Nev. 116,

258 P.2d 982 (1953).

It is true, of course, that the Director of Juvenile Court Services, the position which Mullen

finally held, is created by statute. However, it is also true that his duties were not defined by

statute but rather by his superiors; that no tenure attached to his position; that he had no

power to hire or fire; and that he was wholly subordinate and responsible to his superiors. In

these circumstances the functions of sovereignty reposed in his superiors to whom they had

been assigned by law and were not attributable to the several positions which Mullen enjoyed.

The only distinction between State ex rel. Mathews v. Murray, supra, and the case before us

is that in Murray the statute did not create the position of director of the drivers license

division whereas in this case a statute did create the several positions which Mr. Mullen held.

This difference, however, seems insignificant since the responsibility of the juvenile court

truly rests in the judges of the court.

If certain public “officers” or “employees” or the holders of certain positions, regardless of

how they might be classified, are to be barred from recovery of compensation for their

overtime, this must be done by affirmative action of the legislative bodies of the state or its

political subdivisions. This court will not usurp such a legislative function.

[Headnote 3]

2. Lastly, respondents cite Clark County Ordinance No. 194, § 15, in support of their

contention that appellant is precluded by law from recovery for his overtime. That ordinance

provides as follows:

“Overtime. It is the policy of the County that overtime work is to be discouraged. If,

in the judgment of the department supervisor work beyond the �� ) �� A�� #�� K�� A�� 5�� K�� A��


established work week is required, he shall report the circumstances to the Board of

County Commissioners and he shall not obligate the County to make compensation for

such overtime in any form or manner except on the specific advance authorization of

the Board of County Commissioners; provided that, in case of emergency to prevent

loss of life or damage to property, the department supervisor may authorize such

overtime pending the earliest opportunity to seek the approval of the Board. When

overtime is authorized it may be compensated for in equivalent time off, with mutual

agreement of the employee and the department supervisor; or in cash, at the employee's

established rate of pay, in the discretion of the department supervisor.”

A very similar ordinance was considered recently by the court in Dunn v. City of Carson

City, 88 Nev. 451, 499 P.2d 653 (1972). 1 Following the rationale of the Dunn decision, we

hold that the statement in Clark County Ordinance No. 194, § 15, that “overtime work is to be

discouraged” and the requirement that advance approval be secured by one's supervisor from

the Board of County Commissioners, does not curtail appellant's right to compensation for

work already performed under the knowledge and sanction and at the encouragement of his

superior and occasionally upon the express direction of individual county commissioners.

In summary, appellant is not precluded by statute, ordinance or Nevada case law from

recovering compensation for his overtime. We therefore reverse the judgment of the lower

court.

[Headnote 4]

Since this matter arose from cross motions for summary judgment we could, under the

rationale of City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970), merely

remand the case to the trial court with instruction to enter judgment in appellant's favor for

the total amount sought. Such action, however, would be inappropriate in this case. Here, the

parties by their motions did not concede that there was no genuine issue as to any material

fact. Respondents' motion for “summary judgment” made no such recital. It is made upon the

sole ground of failure to state a claim upon ��

____________________

1

The case of Dunn v. Carson City cited above was decided by this court shortly after the trial court rendered

this decision.


which relief can be granted, and is in effect a motion to dismiss. Appellant's motion was for

summary judgment or in the alternative, partial summary judgment on the issue of liability.

NRCP 56(c) provides that “[s]ummary judgment, interlocutory in character, may be rendered

on the issue of liability alone although there is a genuine issue as to the amount of damages.”

We do not view the parties as having conceded, by filing the cross motions, that there remain

no genuine issues as to any material facts. Accordingly, although appellant is entitled to

summary judgment on the issue of liability, we remand the case for further trial on the issue

of overtime compensation claimed to be due.


Thompson, C. J., and Batjer, J., concur.

McDaniel, D. J., with whom Mowbray, J., agrees, dissenting:

Respectfully, I dissent.

Appellant Robert E. Mullen was appointed to the position of Deputy Juvenile Probation

Officer for Clark County on April 21, 1961. At that time, he knew or should have known that

in order to properly carry out the duties of that position he would not be limited to regular

office hours but that he would be on call after hours, 7 days a week. The delinquent children

over whom he was to have supervision do not confine their activities to any 9 a.m. to 5 p.m.

schedule. He was advanced to Assistant Chief Probation Officer on July 15, 1963; to Chief

Probation Officer on November 18, 1963; and then to Director of Juvenile Court Services of

Clark County on June 4, 1964. He held the latter position until May 4, 1968, when he was

stricken with a cerebral stroke. He was paid in full for his accrued sick leave and vacation

time. At his request, the County Commissioners of Clark County granted to him an additional

90 days of sick leave and also, in recognition of the fact that he had, on many occasions,

worked more than the regular working hours, pay for an additional 480 hours.

On July 1, 1968, Mr. Mullen filed his claim for 6,114 hours of unpaid back overtime

covering the period from September 19, 1963, to March 4, 1968, seeking additional

compensation in the sum of $40,192.21 over and above his regular salary and other monies

previously received. He appeared before the County Commissioners of Clark County on July

8, 1968, in support of his claim. The district attorney recommended that �� #��"��


the claim be denied as being untimely filed except as to the last 6 months. No action was

taken by the Board of County Commissioners.

On September 1, 1968, Mr. Mullen returned to work as an Assistant Chief Probation

Officer. He voluntarily terminated said employment on September 12, 1968. He then filed

suit on December 31, 1968.

In July 1971, appellant filed his motion for summary judgment. Respondent filed a cross

motion for summary judgment. On January 10, 1972, the court granted the motion of

respondent Clark County, and judgment was entered in favor of the county on January 14,

1972.

The trial court found that appellant's alleged cause of action for overtime accrued as of the

date of his termination of employment. Dunn v. City of Carson City, 88 Nev. 451, 499 P.2d

653 (1972), citing Adams v. City of Modesto, 350 P.2d 529 (Cal. 1960). Respondent asserts

that the reason Mr. Mullen was not paid for overtime in the past and cannot now be paid for

his overtime is that he was a “public officer” and not a “public employee,” and that under the

laws of the State of Nevada [NRS 281.100, subsection 3(a)], a public officer is prohibited

from receiving overtime pay. That statute recognizes the law as set forth in State ex rel.

Norcross v. Shearer, 23 Nev. 76 at 82-83, 42 P. 582 (1895), wherein this court quoted with

approval the following statement from 1 J. Dillon, Commentary on the Law of Municipal

Corporations §§ 233, 234 (3d ed. 1890):

“ ‘It is a well-settled rule that a person accepting a public office, with a fixed salary, is

bound to perform the duties of the office for the salary. He cannot legally claim additional

compensation for the discharge of his duties, even though the salary may be inadequate

remuneration for the service. Nor does it alter the case that by subsequent statutes or

ordinances his duties within the scope of the charter power pertaining to his office . . . are

increased[,] and not his salary. Whenever he considers the compensation inadequate, he is at

liberty to resign. The rule is of importance to the public. To allow changes and additions in

the duties, properly belonging, or which may properly be attached to an office to lay the

foundation for extra compensation would introduce intolerable mischief. The rule, too, should

be rigidly enforced. The statutes of the legislature and the ordinances of our municipal

corporations seldom prescribe with much detail and particularity the duties annexed to public

offices; and it requires but little �� C�D�� 5��


ingenuity to run nice distinctions between what duties may[,] and what may not, be

considered strictly official; and if these distinctions are much favored by courts of justice it

may lead to great abuse. Not only has an officer under such circumstances no legal claim for

extra compensation, but a promise to pay him an extra fee or sum beyond that fixed by law is

not binding, though he renders services and exercises a degree of diligence greater than could

legally have been required of him.'. . .” (Emphasis added.)

The courts of the United States have been confronted with the distinction between an

officer and an employee on many occasions. The numerous definitions are as confusing as the

problem sought to be solved. Nevada now has a statute, NRS 281.005, subsection 1,

attempting to define a “public officer.” This statute was not passed until 1967. The statute is,

however, a codification of the case law as stated in State ex rel. Kendall v. Cole, 38 Nev. 215,

148 P. 551 (1915), and State ex rel. Mathews v. Murray, 70 Nev. 116, 258 P.2d 982 (1953).

One of the requirements recognized by both Nevada authorities is that the position be created

by legislative enactment. The position of Juvenile Probation Officer was created by chapter

63 of the 1949 Statutes of Nevada, now NRS 62.115, as amended in 1969. The duties of said

position are fixed by NRS 62.122, which was added to NRS in 1969.

Since a statute created the position, the laws dealing with statutory construction should be

applied to determine the intent of the Legislature in creating this position. It was so held in

State ex rel. Kendall v. Cole, supra, 38 Nev. at 219, 148 P. at 552:

“It seems to us that since an office is a creature of the constitution, of legislative

enactment, or of some municipal body, we must look to the instrument which it is alleged

created the position to determine the intent of the body creating, which, in this case, is the

legislature. It would certainly be a remarkable situation if the legislature, by the act in

question[,] created an office without any intention so to do. Indeed, it has been held that, in

determining whether or not the legislature in fact created an office, we must look to the intent

of the legislature. [Citations omitted.]

“ ‘When the legislature created and called it an ‘office' it was an office, not because the

peculiar duties of the place constituted it such, but because the creative will of the

law-making power impressed that stamp upon it.' (Brown v. Turner, 70 N.C. 99.)” 6� �� -��;��(�� ! ��


Going to the words of the original statute, Law of March 15, 1949, ch. 63 §§ 10, 11 [1949]

Stats. Nev. 77-78, states as follows:

“SEC. 10. The judge or judges of each judicial district shall appoint one or more probation

officers and such other employees as may be required to carry on the work of the probation

department and detention home. If more than one probation officer is appointed, one of them

shall be designated as chief probation officer. All probation officers and detention personnel

shall be appointed from lists of eligible persons established through competitive

examinations conducted by the probation committee. Probation officers and employees may

be removed, discharged, or reduced in position only after having been given the reasons

therefor in writing and being afforded an opportunity to be heard before the judge in answer

thereto.

“Whenever the judge serves two or more counties, probation officers may be appointed to

serve said counties jointly, and the salaries and expenses of such probation officers shall be

allocated between said counties by the judge thereof.

“The salaries of the probation officers, detention home personnel, and other employees

shall be fixed by the judge with the advice of the probation committee and consent of the

board or boards of county commissioners.

“SEC. 11. The probation officer under the general supervision of the judge or judges and

with the advice of the probation committee shall organize, direct, and develop the

administrative work of the probation department and detention home, including the social,

financial and clerical work, and he shall perform such other duties as the judge may direct.

All information obtained in discharge of official duty by an officer or other employee of the

court shall be privileged and shall not be disclosed to anyone other than the judge and others

entitled under this act to receive such information, unless and until otherwise ordered by the

judge.

“Probation officers and assistant probation officers shall have the same powers as peace

officers.” (Emphasis added.)

The use of the phrase “and such other employees” in section 10 would seem to relate back

to “probation officers” as being “employees”. However, the remainder of sections 10 and 11

specifically distinguish between “probation officers” and the “other employee[s]”.

The use of the word “appoint” in relation to the probation officer is significant. The

common and usual meaning of “appoint” is to an office. Employees are hired or employed.

See Reddell v. State, 170 P. 273, 274 (Okla.App. 1918): 0��C4D��I�� +� �

�� 0��+�� N�C� �D��2


“. . . [T]he word ‘appointment' is ordinarily used in connection with the designation of a

person to an office or some similar but subordinate employment, and the term “employment'

has often been used to distinguish an office from a position of a subordinate degree, such as a

clerkship or servant, in continuous service of the employé [sic]. . . .”

In United States v. Schlierholz, 137 F. 616, 624 (E.D. Ark. 1905), the court held:

“. . . In the common acceptation, the meaning of the words ‘appointment' and

‘employment' is quite different. An officer is usually appointed, while a person employed is

spoken of as an ‘employee,' and but rarely, if ever, as an ‘officer.'

“The Century Dictionary defines ‘appointment' as, ‘the act of appointing, designating, or

placing in office. An office held by a person appointed.'

“Among the definitions given to those words by the courts are the following:

“‘Appointment is the designation of a person by the person having authority therefor to

discharge the duties of some office or trust.' State [ex rel. Nicholls v. City of] New Orleans,

41 La. Ann. 156, 6 South. [sic] 592. ‘Where the selection of an officer is referred to some

functionary, it is called an “appointment.”' Speed v. Crawford, 60 Ky. [(3 Metc.)] 207.

“The definition of ‘employé,' as given by the Century Dictionary is:

“One who works for an employer; a person working for salary or wages; applied to any

one so working, but usually only to clerks, workmen, laborers, etc., and but rarely to the

higher officers of a corporation or government or to domestic servants.

“In [In] re Courtland Manufacturing Co. (Sup.), 45 N.Y. Supp. 630, an ‘employé' is

defined to be a person who is employed; one who works for wages or a salary.

“In Palmer v. Van Santvoord, 153 N.Y. 612, 47 N.E. 915, 38 L.R.A. 402, the court held:

“‘An employé is one who works for an employer; a person working for a salary or wage.

The word is applied to any one so working, but usually only to clerks, workmen, laborers,

etc., and but rarely to officers of a government or corporation.'”

It is clear that our Legislature intended, and so provided, that a juvenile probation officer is

a “public officer” and not an employee. Other jurisdictions have so held. In the Florida case

of State ex rel. Gibbs v. Martens, 193 So. 835 (Fla. 1940), it was held that juvenile probation

officers were “officers” and not “employees” and therefore had to be elected or appointed by��


the governor. The Florida statute was similar to that of Nevada in that it provided for

appointment by the judge of the juvenile court. Also see Nicholl v. Koster, 108 P. 302 (Cal.

1910); Gibson v. Civil Serv. Comm'n, 150 P. 78 (Cal.App. 1915).

Appellant held the position of Director of Juvenile Court Services of Clark County from

June 4, 1964, to May 4, 1968. The statute creating the position was Law of April 12, 1963,

ch. 316, § 2 [1963] Stats. Nev. 582, which provides as follows:

“SEC. 2. 1. The judge or judges of each judicial district which includes a county having

a population of 120,000 or more, as determined by the last preceding national census of the

Bureau or the Census of the United States Department of Commerce, may appoint a director

of court services directly responsible to the court to coordinate the services of and serve as

liaison between the court and all agencies in the judicial district dealing with juveniles,

including, but not limited to, the state welfare department, the public schools of the judicial

district, all law enforcement agencies of the judicial district, the probation committee, and

detention home or facilities of the judicial district.

“2. The director of court services shall be appointed from a list of eligible persons

established through competitive examinations conducted by the probation committee.

“3. The director of court services shall serve at the pleasure of the court and be subject to

removal or discharge only after having been given reasons therefor, in writing, and after

having been afforded an opportunity to be heard before the judge to answer thereto.

“4. The director of court services shall have such staff of employees to assist in the

performance of his duties as the probation committee finds necessary.

“5. The salaries of the director of court services and his staff of employees shall be

fixed by the judge or judges with the advice of the probation committee and the consent of the

board or boards of county commissioners of the county or counties served by the judicial

district.” (Bold indicates emphasis added.)

Again, in determining the legislative intent, the director is to be “appointed”, not employed

or hired. There is a consistent distinction between the director and “such staff of employees”.

These matters, together with the importance of this position, show the Legislature intended to

create an office and that the person filling said position would be a public officer.


Appellant claimed his right to recover under Clark County Ordinance No. 194 (thereafter

repealed by Ordinance No. 300), whose title read:

“An ordinance fixing the compensation of appointed and classified officers and employees

of the County of Clark and fixing the regulations covering vacation, sick leave, and leave

without pay of all elective and appointed officers and employees of the County of Clark,

repealing County Ordinances Nos. 29, 83, and 101.”

The main purpose of Ordinance No. 194 was to provide a classification of employees and

a schedule of salaries for officers and employees so as to provide for raises without the

necessity of the Board of County Commissioners' considering raises on an individual basis.

Section 15 of said ordinance provides for overtime payment for employees. The county would

have no authority to enact an ordinance contrary to a state statute [NRS 281.100, subsection

3(a)] that would authorize overtime payment to a county officer. Office Specialty Mfg. Co. v.

Washoe County, 24 Nev. 359, 55 P. 222 (1898); State ex rel. Henderson Banking Co. v.

McBridge, 31 Nev. 57, 99 P. 705 (1909). In fact, the action of the Clark County Board of

County Commissioners in granting appellant pay for the additional 480 hours is, in my

opinion, very questionable, and the appellant could be required to return the money paid to

him.

For the reasons herein stated, I would affirm Judge Gang's order granting summary

judgment in favor of the respondents and against the appellant.

____________

��89 Nev. 319, 319 (1973) Hammond v. Sheriff��

CHARLES HAMMOND, Appellant, v. SHERIFF,


No. 7385

July 13, 1973 511 P.2d 1045

Appeal from an order denying a pre-trial petition for writ of habeas corpus, Eighth Judicial

District Court; William P. Compton, Judge.

Affirmed.

Morgan D. Harris, Public Defender, and Martin R. Boyers, Deputy Public Defender, Clark


��89 Nev. 319, 320 (1973) Hammond v. Sheriff��

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Alan R.

Harter, Deputy District Attorney, Clark County, for Respondent.

OPINION

Per Curiam:

We agree with the district court's determination that there is probable cause to hold

appellant for trial on a charge of assault with a deadly weapon (NRS 200.471), and we affirm

the district court's order denying appellant habeas relief.

____________

��89 Nev. 320, 320 (1973) State v. Thompson��

THE STATE OF NEVADA, Appellant, v.

ERNEST THOMPSON, Respondent.

No. 6882

July 13, 1973 511 P.2d 1043

Appeal from an order dismissing an indictment; Second Judicial District Court, Washoe

County; John E. Gabrielli, Judge.

Building Superintendent for Centennial Coliseum was indicted for gross misdemeanor of

misconduct of public officer on ground that he had illegally accepted money from one to

whom he had granted right to operate concession at Coliseum. The district court dismissed

indictment on ground that defendant was not public officer and the state appealed. The

Supreme Court, Thompson, C. J., held that person holding the position of building

superintendent was employee of public officers and was subject to prosecution under 1911

statute and that the 1967 enactment defining public officer as a person elected or appointed to

position which is established by Constitution or statute of state or by charter or ordinance

does not repeal the 1911 statute.

Reversed.

Robert List, Attorney General; Robert E. Rose, District Attorney, and Kathleen M. Wall,

Assistant Chief Deputy District Attorney, Washoe County, for Appellant.

Fry and Fry, of Reno, for Respondent.


1. Statutes. Repeals by implication are not favored and will not be indulged if there is any other reasonable

construction.

2. Statutes. If statute covers whole subject matter of earlier act and it is evident that it was intended as substitute for

it, repeal by implication occurs.

3. Officers. Where defendant who held position of Building Superintendent of Centennial Coliseum was employee of

Fair and Recreation Board whose members were public officers and it was alleged that he illegally

accepted money from one to whom he had granted right to operate concession at Coliseum, he was subject

to prosecution under 1911 statute concerning crimes by or against public officers and defining public

officer as including all employees of any public officer. NRS 193.010, subd. 16.

4. Officers. 1967 enactment, added to Criminal Procedure Law, to effect that public officer means persons elected or

appointed to position which is established by Constitution or statute of state or by charter or ordinance of a

political subdivision of state did not repeal prior statute concerning crimes of public officers and defining

public officer as including all assistants, deputies, clerks and employees of any public officer. NRS

169.164, 193.010, subd. 16, 197.010 et seq., 197.110.

5. Officers. Section of Criminal Procedure Law to effect that public officer means person elected or appointed to

position which is established by Constitution or statute of state, or by charter or ordinance of political

subdivision, is to be used in criminal prosecutions, under statute concerning crimes by public officers, to

test whether accused is either public officer or assistant, deputy, clerk or employee of public officer and is

also apropos in action in nature of quo warranto to test right to particular office and benefits to flow

therefrom. NRS 35.010, subd. 2, 169.164, 193.010, subd. 16, 197.010 et seq., 281.005 et seq.

OPINION


Ernest Thompson was employed by the Washoe County Fair and Recreation Board as the

Building Superintendent for the Centennial Coliseum. The grand jury indicted him for the

gross misdemeanor of misconduct of a public officer in violation of NRS 197.110, alleging

that he had illegally accepted money from one to whom he had granted the right to operate a

concession at the Centennial Coliseum. The indictment was dismissed by the district court on

the ground that Thompson was not a public officer. The State has appealed from that ruling.


1. NRS 197.110 pursuant to which the indictment was returned is a part of Title 16

concerning Crimes, Punishments and Correctional Institutions, and was enacted in 1911.

NRS 193.010 (16) defining “officer” and “public officer” for the purposes of Title 16

provides that those terms “shall include all assistants, deputies, clerks, and employees of any

public officer and all persons exercising or assuming to exercise any of the powers or

functions of a public officer.” This description of the words “officer” and “public officer”

also has been operative since 1911.

It is conceded that the position held by Thompson, that of Building Superintendent of the

Centennial Coliseum, was not created by constitution, statute, charter or ordinance. His office

was created administratively by the Fair and Recreation Board. Likewise, it is conceded that

Thompson did not take the oath of office required of public officers. Nev. Const. art. 15, § 2;

NRS 282.010. Moreover, his duties were not fixed by law, but rather, were as defined by the

Fair and Recreation Board. These admitted facts together with a 1967 legislative enactment

concerning the meaning of the words “public officer” prompted Thompson to move the

district court to dismiss the indictment, and persuaded that court to grant such motion.

The 1967 enactment is NRS 169.164, and was added to Title 14, The Nevada Criminal

Procedure Law. That section states that a “public officer” means a person elected or

appointed to a position which (1) is established by the Constitution or a statute of this state, or

by a charter or ordinance of a political subdivision of this state, and (2) involves the

continuous exercise, as a part of the regular and permanent administration of the government,

of a public power, trust or duty.

In view of the admitted facts heretofore mentioned, it is clear that Thompson does not fall

within the 1967 definition of a public officer. It does not inevitably follow, however, that he

thereby is insulated from an accusation under Title 16. This turns upon whether the definition

of a public officer in NRS 169.164 of Title 14 enacted in 1967 had the effect of repealing the

1911 definition expressed in NRS 193.010 (16) of Title 16 pursuant to which the indictment

was returned.

2. The 1967 act, of which NRS 169.164 is a part, does not expressly repeal NRS

193.010(16). We must, therefore, ascertain whether a repeal by necessary implication

occurred when the later statute became law.

[Headnotes 1, 2]

Repeals by implication are not favored and will not be ��


indulged if there is any other reasonable construction. State v. Economy, 61 Nev. 394, 397,

130 P.2d 264 (1942). On the other hand, if the later statute covers the whole subject matter of

the earlier act and it is evident that it was intended as a substitute for it, a repeal by

implication does occur. State v. Economy, supra; So. Nev. Tel. Co. v. Christoffersen, 77 Nev.

322, 363 P.2d 96 (1961).

[Headnote 3]

It is our opinion that NRS 193.010(16) is still viable and was not impliedly repealed by the

enactment of NRS 169.164. Title 16, and particularly ch. 197 thereof, describes substantive

crimes by and against the executive power of the state and, by virtue of the definition of

public officer contained in NRS 193.010(16), an employee of a public officer who commits

an act proscribed by NRS 197.110 is guilty of a gross misdemeanor. Thompson was an

employee of the Fair and Recreation Board whose members are public officers, and is alleged

to have committed an act in violation of NRS 197.110.

[Headnote 4]

The 1967 enactment of NRS 169.164 does not purport to define what constitutes a crime

nor does it erase the several sections of ch. 197 concerning crimes by or against public

officers. To this extent, at least, the later enactment does not cover the whole subject matter

of the earlier act, and may not, therefore, be deemed a substitute for it. The later statute

contains nothing to suggest that an employee of a public officer may no longer be prosecuted

for conduct in violation of ch. 197. It is for this reason that we conclude that the district court

erred in dismissing the indictment.

[Headnote 5]

3. Our determination with regard to the continued vitality of NRS 193.010(16) for the

purposes of ch. 197, does not mean that the 1967 enactment is without meaning. The later

definition will be used in criminal prosecutions under ch. 197 to test whether the accused is

either a public officer or an assistant, deputy, clerk or employee of a public officer. That

definition also is apropos to an action in the nature of quo warranto, NRS 35.010(2); St. Ex

Rel. Mathews v. Murray, 70 Nev. 116, 258 P.2d 982 (1935); State Ex Rel. Baker v. Wichman

Et Al., 52 Nev. 17, 279 P. 937 (1929), to test the right to a particular office, and the benefits

to flow therefrom, State v. Cole, 38 Nev. 215, 148 P. 551 (1915). The 1967 definition

contained in NRS 169.164 also is found in Title 23, ch. 281 et seq., and will govern matters

embraced by that title.


By so construing the several statutes we have mentioned, meaning is given to each without

defeating the legislative intention to any of the areas affected.

Reversed.


____________

��89 Nev. 324, 324 (1973) McNees v. State��

DANNY L. McNEES, Appellant, v. THE STATE


No. 6607

July 19, 1973 511 P.2d 1324

Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark


Defendant was convicted in the district court of robbery, and he appealed. The Supreme

Court, Batjer, J., held that where authorities made changes in composition of lineup suggested

by defendant's counsel, who then indicated that he had no objection to reconstituted lineup,

there was no infringement of defendant's constitutional rights.

Affirmed.

Morgan D. Harris, Public Defender, and Theodore J. Manos, Deputy Public Defender,




Criminal Law.

Where authorities made changes in composition of lineup suggested by defendant's counsel, who then

indicated that he had no objection to reconstituted lineup, there was no infringement of defendant's

constitutional rights.

OPINION


Convicted of robbery, a violation of NRS 200.380, appellant seeks reversal of his

conviction because of several alleged ��

��89 Nev. 324, 325 (1973) McNees v. State��

errors in the proceedings below. The only contention that merits discussion relates to his

claim that the lineup identification procedures infringed his constitutional rights.

The record reflects that an all night grocery store in Las Vegas, Nevada, was robbed during

the early morning hours of July 16, 1970. The store manager and a customer gave police

officers a detailed description of the perpetrator of the offense. An informant subsequently

telephoned the authorities and stated that he suspected that appellant had committed the

robbery. The informant's description of appellant matched that given by the store manager

and the witness. Appellant was subsequently arrested and placed in a lineup to be viewed by

the store manager and the customer.

Appellant's counsel objected to the content of the lineup just prior to the viewing by the

two witnesses. The authorities made the changes in the composition of the lineup suggested

by appellant's counsel, who then indicated that he had no objection to the reconstituted

lineup. The viewing proceeded and appellant was identified as the perpetrator of the robbery.

He was later charged, tried and convicted. The appellant was again positively identified, both

at the preliminary examination and at trial, without reference to the lineup identification. See

Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972).

A pre-trial motion to suppress the lineup identification was denied by the trial judge and

the thrust of appellant's argument on appeal suggests that the content of the lineup was

“unnecessarily suggestive and conducive to irreparable mistaken identification that he was

denied due process of law,” as proscribed by Stovall v. Denno, 388 U.S. 293, 302 (1967). We

reject that contention. Any infirmity in the composition of the lineup was corrected at the

suggestion of appellant's counsel who, after the changes were made, agreed that the viewing

should proceed. Under this factual situation there was no infringement of appellant's

constitutional rights.

Other alleged errors are equally without merit and the judgment is affirmed.


____________

��89 Nev. 326, 326 (1973) McDonald v. Sheriff��

DAVID MICHAEL McDONALD, Appellant, v. SHERIFF OF CARSON CITY, NEVADA,

and the STATE OF NEVADA, Respondents.

No. 7260

July 23, 1973 512 P.2d 774

Appeal from an order denying a pre-trial petition for a writ of habeas corpus. First Judicial

District Court, Carson City; Frank B. Gregory, Judge.

Pre-trial habeas challenge to information charging defendant with nine different felonies.

The district court granted challenges as to three counts but denied challenges to remaining

counts, and defendant appealed. The Supreme Court held that denial of pre-trial challenge to

information charging defendant with rape was proper but that charges of battery and

kidnapping could not stand.

Affirmed in part; reversed in part.

Arthur J. Bayer, Jr., of Carson City, for Appellant.

Robert List, Attorney General, Carson City; and Michael E. Fondi, District Attorney,

Carson City, for Respondents.

1. Rape.

Consent of alleged rape victim is a matter of defense. NRS 200.363.

2. Habeas Corpus. Supreme Court, in reviewing defendant's appeal from the denial of his pre-trial habeas challenge to

information charging him with rape, was not concerned with prospect that evidence presently in record

might be insufficient to sustain a conviction. NRS 171.206.

3. Criminal Law. Denial of defendant's pre-trial challenge to information charging him with rape was proper, where

evidence adduced at preliminary examination showed that defendant engaged in act of sexual intercourse,

despite defendant's contention that victim consented. NRS 171.206, 200.363.

4. Assault and Battery. Charge of battery against defendant could not stand, where evidence showed that alleged injury was

accidentally inflicted. NRS 200.481.

5. Kidnapping.

“Kidnap” means to take and carry away any person by unlawful force or fraud and against his will. NRS

200.310.

6. Criminal Law. Where victim testified that there was no force or fraud and that she not only voluntarily accompanied

defendant from one city to another but voluntarily returned with him on the following �� # ��


day, probable cause did not exist for charging defendant with kidnapping. NRS 200.310.

OPINION

Per Curiam:

An information charging appellant with nine different felonies was filed in the district

court at the conclusion of a preliminary examination. A pre-trial habeas challenge to the

information was granted as to three counts, and denied as to the remaining counts. In this

appeal, appellant contends the district court erred in denying habeas as to two counts of rape

(Counts I and II) because the evidence showed the alleged victim consented to the sexual

intercourse, and argues that, as to the other counts, the evidence submitted to the magistrate

was insufficient to establish probable cause.

[Headnotes 1-3]

1. Appellant concedes evidence was adduced at the preliminary examination to show he

engaged in the acts of sexual intercourse, but contends the rape charges cannot stand, because

the victim consented. The contention is without merit. Consent of the alleged victim is a

matter of defense. NRS 200.363; cf. State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962); State of

Nevada v. Pickett, 11 Nev. 255 (1876). The record does not impel us to conclude that, at trial,

such defense will be shown as a matter of law; and we are not now concerned with the

prospect that the evidence presently in the record may, by itself, be insufficient to sustain a

conviction. NRS 171.206; cf. Maskaly v. Sheriff, 85 Nev. 111, 450 P.2d 790 (1969), and

Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969).

[Headnotes 4-6]

2. The contention of lack of probable cause as to the remaining counts is without merit,

except as to Count V (battery with a deadly weapon, NRS 200.481), 1 and Count IX (second

degree kidnapping, NRS 200.310). 2 �4��

____________________

1

The battery charge cannot stand because the record reflects the alleged injury was accidentally inflicted.

NRS 200.481 defines battery as “any willful or unlawful use of force or violence. . .” [Emphasis added]. Here,

from the prosecuting witness's testimony, it unequivocally appears appellant did not intend to inflict the cut she

suffered.

2 “Kidnap means to take and carry away any person by unlawful force or fraud and against his will.” Jensen

v. Sheriff, 89 Nev. 123, 508 P.2d 4 (1973); NRS 200.310. Here the victim testified that there was no force or

fraud and that she not only voluntarily accompanied the accused from Carson City to Reno (the alleged criminal

act), but voluntarily returned here with him the following day. Accordingly, the charged offense clearly did not

occur.


The record does contain sufficient evidence to establish probable cause that the remaining

charged offenses were committed and that appellant probably committed them. NRS 171.206.

The order of the trial court is reversed as to Count V and Count IX; as to Counts I, II, III

and VI, it is affirmed.

____________

��89 Nev. 328, 328 (1973) Petschauer v. Sheriff��

RALPH B. PETSCHAUER, II, Appellant, v. SHERIFF,


No. 7362

August 7, 1973 512 P.2d 1325

Appeal from a order denying a pre-trial writ of habeas corpus, Eighth Judicial District

Court, Clark County; Thomas J. O'Donnell, Judge.

The Supreme Court, Batjer, J., held that it had no basis upon which to determine if

evidence in record was sufficient to sustain charge, and that determination that there was

good cause for nine-month delay from time indictment was returned until defendant was

located and taken into custody did not constitute error, and defendant was not denied right to

a speedy trial.

Affirmed.

[Rehearing denied September 6, 1973]

Morgan D. Harris, Public Defender, and Robert L. Stott, Deputy Public Defender, Clark




1. Habeas Corpus. Where transcript of grand jury proceedings was neither designated nor submitted as a part of record on

appeal from order denying a pre-trial writ of habeas corpus, the Supreme Court had no basis upon which to

determine if evidence in that record was sufficient to sustain charge and would reject such contention.

2. Criminal Law. Where defendant's true name was not learned until day before his arrest for sale of a controlled substance,

determination that there was good cause for nine-month delay from time indictment was returned until

defendant was located and taken into custody ��


did not constitute error, and defendant, who also failed to demonstrate that the delay had caused him any

prejudice, was not denied right to a speedy trial. NRS 453.010 et seq.

OPINION


On June 22, 1972, the Clark County Grand Jury returned an indictment charging Ralph B.

Detschauer with the sale of a controlled substance, a felony under NRS ch. 453. A bench

warrant issued in that name. The local authorities were unable to find the named accused.

Through a chance discussion with a traffic court clerk on March 29, 1973, a police officer

learned that the true name of the person who allegedly sold the contraband was Ralph B.

Petschauer, the appellant herein. Petschauer was located and arrested on March 30, 1973.

From the time the indictment was returned until the appellant was located and taken into

custody more than nine months had elapsed. A pre-trial habeas challenge to the indictment

contended (1) that there was insufficient evidence adduced before the grand jury to establish

probable cause and, (2) that there was an infringement of the appellant's constitutional rights

because he was not brought to trial within 60 days after he was charged with the offense. The

district court denied habeas and the same contentions are reurged in this appeal.

[Headnote 1]

1. The transcript of the grand jury proceedings was neither designated nor submitted as a

part of the record on appeal; therefore, we have no basis upon which to determine if the

evidence in that record was sufficient to sustain the charge, and as a consequence we reject

the appellant's first contention. Lamoureux v. Sheriff, 85 Nev. 44, 449 P.2d 471 (1969).

2. His contention that he has not been afforded a speedy trial is also without merit. In

Barker v. Wingo, 407 U.S. 514 (1972), the High Court approved a balancing approach in

which the conduct of both the prosecution and the defendant are weighed, and identified four

factors which should be assessed in deciding whether a defendant has been deprived of his

right to a speedy trial. Those factors are: (1) the length of the delay; (2) the reason for the

delay; (3) the defendant's assertion of his right, and (4) prejudice to the defendant.

[Headnote 2]

The delay in this case was substantial (281 days); however, the trial judge found that the

undercover police officer ��%��A�


who purchased the controlled substance knew the appellant as Ralph B. Detschauer, and that

his true name was not learned until the day before his arrest. Upon these facts the trial judge

determined that there was good cause for the delay. We find no error in that determination.

The appellant has failed to demonstrate that the delay has caused him any prejudice.

In Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595, 598 (1970), we wrote: “NRS

178.556 states that the court ‘may' dismiss the . . . indictment if the defendant is not brought

to trial within 60 days. This rule is only mandatory if there is not good cause shown for the

delay . . . Ex Parte Morris, 78 Nev. 123, 369 P.2d 456 (1962) . . . The State, which had the

burden of showing good cause for the delay, Ex Parte Morris, supra, did so in this case. The

statutory timetable for conduct of criminal proceedings is a guide to the speedy trial issue, but

does not define the constitutional right.”

We find no error in the district court's determination that appellant's constitutional rights

were not infringed and we affirm.


____________

��89 Nev. 330, 330 (1973) State ex rel. Brennan v. Bowman��

STATE OF NEVADA on Relation of JAMES A. BRENNAN, JAMES G. RYAN, TOM

WIESNER, ROBERT N. BROADBENT and MYRON E. LEAVITT, Members of the

BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA, Petitioner,

v. LORETTA BOWMAN, COUNTY CLERK OF CLARK COUNTY, STATE OF

NEVADA, and EX OFFICIO CLERK OF THE BOARD OF COUNTY COMMISSIONERS

OF CLARK COUNTY, STATE OF NEVADA, Respondent.

No. 7097

August 10, 1973 512 P.2d 1321

Original proceeding in mandamus testing the constitutionality of the County Economic

Development Revenue Bond Law. The Supreme Court, Thompson, C. J., held that the law is

constitutional.

Peremptory writ issued.

Jones, Jones, Close, Bilbray, Kaufman & Olsen, Ltd., of Las Vegas, for Petitioner.


Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and George

F. Ogilvie, Jr., Chief Civil Deputy District Attorney, Clark County, for Respondent.

1. Counties. County Economic Development Revenue Bond Law is designed to encourage industry to locate or

remain in the State in order to relieve unemployment and to secure and maintain a stable economy. NRS

244.9191 et seq., 244.9197.

2. Counties. County Economic Development Revenue Bond Law is not violative of the doctrine that public funds may

not be spent for private purposes. NRS 244.9191 et seq.

3. Counties. County Economic Development Revenue Bond Law does not contravene the constitutional prohibitions

relative to loans of public credit, as the law specifically forbids a charge against the county's credit or

taxing powers, precludes county liability for bond and interest coupons, and bars county contribution

toward the acquisition cost of a project. Const. art. 8, §§ 9, 10; NRS 244.9191 et seq.

4. Statutes. Title of the County Economic Development Revenue Bond Law is not violative of the constitutional

provision that each law enacted by the Legislature shall embrace but one subject and matter, properly

connected therewith, which subject shall be briefly expressed in the title, although it did not contain

reference to pollution control. Const. art. 4, § 17; NRS 244.9191 et seq.

5. Statutes. County Economic Development Revenue Bond Law is not violative of the constitutional proscription

against local or special laws. Const. art. 4, §§ 21, 22; NRS 244.9191 et seq.

6. Constitutional Law; Counties. County Economic Development Revenue Bond Law does not unlawfully delegate legislative authority,

nor does it impermissibly allow the counties to delegate authority. Const. art. 3, § 1; NRS 244.9191et seq., 244.9197-244.9199, 244.9204, 244.9205, 244.9208.

7. Taxation. County Economic Development Revenue Bond Law is violative of neither the constitutional provision

with respect to uniform taxation, nor the provision requiring corporate property to be taxed in the same

manner as the property of an individual. Const. art. 8, § 2; art. 10, § 1; NRS 244.9191 et seq.

OPINION


This original proceeding for a writ of mandamus tests the constitutionality of the County

Economic Development Revenue Bond Law. Clark County proposes to issue revenue bonds �� .(�(//�///�� 4��,� �� ) � � ��


in the principal amount of $5,500,000 to assist The Flintkote Company in the acquisition and

construction of pollution control facilities for its plants in Clark County. The Board of County

Commissioners voted to enact Ordinance No. 396 to effectuate that purpose, but the County

Clerk, acting pursuant to legal advice, has refused to publish the same. Consequently, this

proceeding was commenced to compel her to do so.

The ordinance followed a memorandum of agreement between the County and Flintkote.

That agreement was made and executed pursuant to the authority of the County Economic

Development Revenue Bond Law, as was the ordinance which followed. Capsulized, the

agreement provides that Clark County shall hold title to the pollution control facilities to be

acquired and constructed at the Flintkote plants, which facilities, Flintkote, in turn, shall lease

from the County and remit as lease rental payments an amount sufficient to meet all monetary

requirements of the bonds to be issued by the County. Upon full payment of the bonds and

other expenses connected therewith, Flintkote may exercise an option to purchase the

improvements and facilities from the County for the sum of $1.

It is evident that the method of financing contemplated by the Revenue Bond Law may, in

proper circumstances, materially reduce the cost of financing essential industrial

improvements since the interest on the bonds issued by the political subdivision may be

exempt from taxation as well as from the registration requirements of securities acts.

[Headnote 1]

The Revenue Bond Law is designed to encourage industry to locate or remain in this State

in order to relieve unemployment and to secure and maintain a stable economy. NRS

244.9197. We turn to consider the challenges to that law.

[Headnote 2]

1. Public funds may not be spent for private purposes. It is asserted that the Revenue Bond

Law here in issue somehow violates that doctrine. Of course, if the County were to levy a tax

to retire the bonds and if the purpose of the bond issue was private rather than public in

nature, the law would be struck down. Nev. Const. art. 1, § 8; State v. Churchill County, 43

Nev. 290, 185 P. 459 (1919); cf. Cauble v. Beemer, 64 Nev. 77, 82, 177 P.2d 677 (1947).

The Revenue Bond Law, however, forbids pecuniary liability of the County, or a charge

against its general credit or taxing ��


powers. NRS 244.9201(2). Neither can it reasonably be contended that the legislative purpose

is other than public. The Revenue Bond Law may be expected to encourage industry to either

locate or remain in this State and, thereby, aid in relieving unemployment and maintaining a

stable economy. City of Gaylord v. Beckett, 144 N.W.2d 460 (Mich. 1966). This inures to the

public benefit. That Law also will work to realize the purposes of the Nevada Air Pollution

Control Law, NRS 445.401 et seq., which proposes to require the use of “reasonably

available methods to prevent, reduce or control air pollution.” That such a purpose is a public

purpose cannot be denied. Fickes v. Missoula County, 470 P.2d 287 (Mont. 1970); Nemelka

v. Salt Lake County, 499 P.2d 862 (Utah 1972); Harper v. Schooler, 189 S.E.2d 284 (S.C.

1972); Knight v. West Alabama Environmental Imp. Auth., 246 So.2d 903 (Ala. 1971);

Opinion of the Justices, 268 N.E.2d 149 (Mass. 1971).

[Headnote 3]

2. It is asserted that the Revenue Bond Law contravenes the prohibitions of Nev. Const.

art. 8, §§ 9 and 10, relative to loans of public credit. Since the Revenue Bond Law

specifically forbids a charge against the County's credit or taxing powers, precludes County

liability for the bonds and interest coupons, and bars County contribution towards the

acquisition cost of the project, this challenge to the Law also must fail. McLaughlin v.

L.V.H.A., 68 Nev. 84, 227 P.2d 206 (1951); State ex rel. Brennan v. Bowman, 88 Nev. 582,

503 P.2d 454 (1972). Inasmuch as the bonds are payable only from income to be derived from

leasing the pollution control facilities, and no resort can be had against the County or its

taxpayers, the County is not lending its credit in breach of the constitutional proscription.

Allen v. Tooele County, 445 P.2d 994 (Utah 1968).

[Headnote 4]

3. Nev. Const. art. 4, § 17, provides that “[e]ach law enacted by the Legislature shall

embrace but one subject, and matter, properly connected therewith, which subject shall be

briefly expressed in the title. . . .” The title of the Revenue Bond Law is said to violate that

provision of our Constitution since it does not contain a reference to pollution control.

The title of the Act: “An act relating to public securities and obligations; authorizing

counties and cities to issue revenue bonds to finance industrial development projects and to

lease ��5�� 5�� 2


such projects; prescribing details in connection therewith; and providing other matters

properly relating thereto.” As we see it, this title encompasses one subject, economic

development revenue bonds. It is similar in character to the title of the Housing Authorities

Law which we upheld against the same challenge in McLaughlin v. L.V.H.A., supra. This

attack upon the Law is without substance.

[Headnote 5]

4. Nev. Const. art. 4, § 21, proscribes local or special laws in the cases therein

enumerated. The Revenue Bond Law does not offend that proscription since it is statewide in

application, and is neither local nor special. State ex rel. Brennan v. Bowman, 88 Nev. 582,

503 P.2d 454 (1972). The Law is general and of uniform operation throughout the State as

required by § 22 of art. 4. It may be utilized by all counties within the State without

classification. Cf. Reid v. Woofter, 88 Nev. 378, 498 P.2d 361 (1972).

[Headnote 6]

5. The respondent asserts that the Revenue Bond Law unlawfully delegates legislative

authority in contravention of Nev. Const. art. 3, § 1. This assertion is without force. Adequate

standards are specified in the Law. Its purpose [NRS 244.9197], the powers of the county

NRS [244.9198], procedures for notice and hearing [NRS 244.9199], the nature and form of

the bonds to be issued [NRS 244.9204], the investment of revenues [NRS 244.9205], rights

upon default [NRS 244.9208], and several other matters are particularly set forth. The

legislative guides are clear for the counties to follow. No. Las Vegas v. Pub. Serv. Comm'n,

83 Nev. 278, 429 P.2d 66 (1967); State ex rel. Brennan v. Bowman, supra.

The same is true with respect to the contention that the Law impermissibly allows the

counties to delegate authority. McLaughlin v. L.V.H.A., supra.

[Headnote 7]

6. Next, it is contended that art. 10, § 1, regarding uniform taxation, and art. 8, § 2,

requiring corporate property to be taxed in the same manner as the property of an individual,

are violated by the Law.

Lands and other property owned by the county are exempt from taxation, NRS 361.060,

and NRS 244.9216 of the Revenue Bond Law expressly provides that property acquired by

the county pursuant to that law shall remain exempt from taxation. Thus, the pollution control

facilities will be owned by the county until the bonds are retired and Flintkote has �#��


exercised its option to purchase. Notwithstanding this fact, Flintkote, by reason of the

provisions of NRS 361.157 and 361.159, will be taxed for the pollution control facilities, as

the lessee thereof, and to the same extent as though it was the owner. Consequently, there is

no footing for the claim that a discrimination or inequality arises from the statutory scheme.

Allen v. Tooele County, 445 P.2d 994, 997 (Utah 1968).

7. The remaining challenges to the Revenue Bond Law have been carefully examined and

are without validity.

A peremptory writ of mandamus shall issue directing the respondent to publish Clark

County Ordinance No. 396.

Mowbray, Batjer, and Zenoff, JJ., concur.


Assuming that a real controversy exists between the county commissioners and the county

clerk—an assumption somewhat difficult to sustain—I can concur in the result of the

majority opinion. However, I must note disapproval of this court larding its opinions with

unnecessary constitutional dicta, discussing issues because attorneys desire it, and not

because the case requires it.

I had misgivings about the excess language in State ex rel. Brennan v. Bowman, 88 Nev.

582, 503 P.2d 454 (1972). In that mandamus proceeding as in this one, it was unnecessary to

decide any of the constitutional issues “raised” in the county clerk's name. Indeed, we might

well have declined to entertain the proceeding at all, on the ground that it presented no actual,

present controversy. Cf. Muskrat v. United States, 219 U.S. 346 (1910). 1 At most, in that

proceeding as in this one, assuming a bona fide controversy between the commissioners and

the clerk, we should simply have summarily ordered the clerk to perform her ministerial duty,

i.e., in that case, to attest the trust instrument. Cf. State v. Glass, 44 Nev. 234, 192 P. 472

(1920). We have frequently declared we will not decide �� )�� +��

____________________

1

In Muskrat, the United States Supreme Court ordered certain actions dismissed for want of jurisdiction,

saying:

“. . . The whole purpose . . . is to determine the constitutional validity of this class of legislation, in a suit not

arising between parties concerning a property right necessarily involved in the decision in question, but in a

proceeding against the Government in its sovereign capacity, and concerning which the only judgment required

is to settle the doubtful character of the legislation in question. Such judgment will not conclude private parties,

when actual litigation brings to the court the question of the constitutionality of such legislation.” Id., at

361-362.


constitutional questions, unless that is necessary to adjudicating some interested party's rights.

See, for example, State v. Tax Commission, 38 Nev. 112, 145 P. 905 (1914), and authorities

collected at 10 Nev. Digest, Constitutional Law, § 60.

Although the opinion issued in the first Brennan v. Bowman case discussed issues not

necessary to decide it, purporting to resolve constitutional challenges to Stats. Nev. 1971, ch.

502 (NRS 242B), we at least refrained from suggesting blanket approval of that law and of

the trust indenture ostensibly drawn pursuant thereto. In the instant case, if this court does not

refrain altogether from advisory dicta, I suggest we should confine ourselves, as in the first

Brennan v. Bowman matter, to considering whether, under some tendered theory, the state

statute in question necessarily contemplates unconstitutional governmental action. Surely, we

should not intimate that some county ordinance will hereafter be deemed lawful, either in

form or in ultimate application. (Although the majority may not intend such sweeping

approval, their opinion might be so understood.)

It will be a very dangerous practice, I think, if county commissioners can impel our

advisory review of any ordinance they enact simply by having their county clerk refuse to

publish it. This court lacks the time and foresight to assess, in the abstract, the constitutional

implications and ramifications of every financial scheme county commissioners throughout

the state may be motivated to enter by laws like that before us and that concerned in State ex

rel. Brennan v. Bowman, supra. Such an undertaking is both foreign to our office and beyond

our capacity. Particularly this is so because a district attorney, when he nominally represents

his county clerk by tendering us constitutional arguments against an ordinance, will often be

presenting a view he does not want to prevail—perhaps arguing against an ordinance he

helped to prepare. If we approve such procedures, how much real advocacy can we expect

from counsel?

Candidly, although the district attorney's Points and Authorities in this case are responsibly

prepared from the standpoint of scholarship, they reflect little desire for victory. I believe a

taxpayer or a competitor of The Flintkote Company, truly interested in defeating the plan to

buy pollution equipment for Flintkote, might prefer to retain other, truly interested counsel.

And, as I now perceive it, the friendly litigation now before us has been concocted to obviate

the danger that, at some later date, some interested party with interested counsel might

persuade us that his constitutional rights were � �� ) ��4��,� ��


violated by selling bonds to purchase equipment for The Flintkote Company. Since that

danger exists, I suggest it is our duty to wait, and hear the interested party.

____________

��89 Nev. 337, 337 (1973) Sheriff v. Hultenschmidt��

SHERIFF, CHURCHILL COUNTY, NEVADA, Appellant, v.

FRED HULTENSCHMIDT, Jr., Respondent.

No. 7399

August 21, 1973 512 P.2d 1326

Appeal from an order granting a pre-trial writ of habeas corpus. First Judicial District

Court, Churchill County; Richard L. Waters, Jr., Judge.

Affirmed.

Michael V. Roth, District Attorney, Churchill County, for Appellant.

Diehl, Recanzone, Evans & Smart, of Fallon, for Respondent.

OPINION

Per Curiam:

This appeal is without merit. The order of the trial court is affirmed.

____________

��89 Nev. 337, 337 (1973) Hilt v. Sheriff��

JAMES WILLIAM HILT, Appellant, v. SHERIFF,


No. 7365

August 21, 1973 513 P.2d 442

Appeal from an order denying a pre-trial petition for a writ of habeas corpus, Eighth

Judicial District Court, Clark County; William P. Compton, Judge.

The Supreme Court held that evidence was sufficient to establish probable cause to believe

that defendant had committed murder.

Affirmed.

��89 Nev. 337, 338 (1973) Hilt v. Sheriff��




1. Criminal Law. Evidence was sufficient to establish probable cause to believe that defendant had committed murder.

NRS 200.010.

2. Habeas Corpus. In determining whether to grant pre-trial habeas corpus relief on ground evidence before magistrate failed

to establish probable cause to hold defendant for trial, court is not concerned with sufficiency of evidence

to support conviction. NRS 171.206.

OPINION

Per Curiam:

In this appeal from an order denying pre-trial habeas relief, appellant, charged with murder

(NRS 200.010), contends that the evidence adduced before the magistrate failed to establish

probable cause to hold him for trial.

[Headnotes 1, 2]

Contrary to appellant's contention the record before us is sufficient to show that “there is

probable cause to believe that an offense has been committed and that the [appellant] has

committed it, . . .” NRS 171.206. At this stage of the proceedings we are not concerned that

“[t]he evidence of commission of the offense charged may not support a conviction . . .”

Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969).


____________

��89 Nev. 338, 338 (1973) Askew v. State��

GARY ASKEW, Appellant, v. THE STATE


No. 6889

August 21, 1973 513 P.2d 441

Appeal from judgment of conviction and sentence of the Fifth Judicial District Court,

Mineral County; Kenneth L. Mann, Judge.

Defendant was convicted before the district court of battery � ��

��89 Nev. 338, 339 (1973) Askew v. State��

with intent to kill, and he appealed. The Supreme Court held that defendant who was

acquitted of attempted murder charge was not prejudiced because of refusal to give requested

instruction defining attempted murder and that crime of battery with intent to kill may be

separate and distinct crime from attempted murder.

Affirmed.


Robert List, Attorney General, Carson City; and Charles Waterman, District Attorney,

Mineral County, for Respondent.

1. Homicide. Refusal to give defendant's requested instruction defining attempted murder did not prejudice defendant

who was acquitted by jury of attempted murder charge and was convicted of battery with intent to kill.

NRS 200.010, 200.400, subd. 3, 208.070.

2. Homicide. In order to sustain a conviction for attempted murder, malice and premeditation must be alleged and

proved; however, there is no such requirement of allegation or proof to convict one of battery with intent to

kill. NRS 200.010, 200.400, subd. 3, 208.070.

3. Indictment and Information. Crime of battery with intent to kill, while a lesser included offense under an attempted murder charge,

may be a separate and distinct crime where malice and premeditation are absent. NRS 200.010,

200.400, subd. 3, 208.070.

OPINION

Per Curiam:

Appellant, charged with two counts of attempted murder (NRS 200.010, NRS 208.070),

was convicted of two counts of battery with intent to kill (NRS 200.400(3)). He asks us to

reverse the conviction because (1) the trial court refused to give the jury his requested

instruction defining attempted murder and, (2) both attempted murder and battery with intent

to kill are identical crimes and since different penalties 1 are provided for the offenses there is

an unlawful delegation of legislative authority under Lapinski v. State, 84 Nev. 611, 446 P.2d

645 (1968).

____________________

1

A conviction for attempted murder can result in a 20 year prison term. NRS 208.070. Battery with intent to

kill carries a maximum 10 year sentence. NRS 200.400(3).

��89 Nev. 338, 340 (1973) Askew v. State��

[Headnote 1]

1. We are unable to perceive how the appellant could possibly be prejudiced by the refusal

of the trial court to give his requested instruction defining attempted murder, because he was

acquitted by the jury of the attempted murder charges. Therefore, we find that contention to

be totally without merit. Bumper v. North Carolina, 391 U.S. 543 (1968); Pacheco v. Warden,

87 Nev. 231, 484 P.2d 1082 (1971). Cf. Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).

[Headnotes 2, 3]

2. In Lapinski we condemned a statute which permitted the prosecutor to elect whether to

charge an accused with a felony or a misdemeanor. Appellant's reliance on Lapinski is

misplaced.

In order to sustain a conviction for attempted murder “malice and premeditation must be

alleged and proved.” In battery with intent to kill “there is no such requirement of allegation

or proof to convict.” Graves v. Young, 82 Nev. 433, 437, 420 P.2d 618, 620 (1966). The

crime of battery with intent to kill, while a lessor included offense under an attempted murder

charge, may be a separate and distinct crime where malice and premeditation are absent.

Furthermore, the penalty is less severe. See Graves v. Young, supra.

Affirmed.

____________

��89 Nev. 340, 340 (1973) Hartman v. Sheriff��

WILLIAM ALFRED HARTMAN, Appellant, v.

SHERIFF, WASHOE COUNTY, NEVADA, Respondent.

7430

September 7, 1973 513 P.2d 443

Appeal from an order denying a pre-trial petition for habeas corpus, Second Judicial

District Court, Washoe County; John E. Gabrielli, Judge.

Affirmed.

H. Dale Murphy, Public Defender, Washoe County, for Appellant.

Robert List, Attorney General, Carson City; Robert E.

��89 Nev. 340, 341 (1973) Hartman v. Sheriff��

Rose, District Attorney, and Larry Hicks, Deputy District Attorney, Washoe County for

Respondent.

OPINION

Per Curiam:

This appeal is without merit. The order of the district court is affirmed.

____________

��89 Nev. 341, 341 (1973) Securities Investment Co. v. Donnelley��

SECURITIES INVESTMENT COMPANY OF ST. LOUIS, Appellant, v. J. A.

DONNELLEY and HAROLD V. CLARK, as Coexecutors of the Estate of WILBUR I.

CLARK, Deceased, Respondents.

No. 6848

September 7, 1973 513 P.2d 1238

[Headnote 1]

Appeal from Order dated June 24, 1971, refusing to adjudicate a claim as an expense of

administration; order denying motion to make additional findings 1 and amend judgment or

alternatively for a new trial, taking of additional testimony, making new findings and

directing entry of new judgment; and an order granting motion to retax costs. Eighth Judicial

District Court, Clark County; Clarence Sundean, Judge.

Action on partial guaranty executed by co-executors of estate. The Supreme Court, Batjer,

J., held that claim based on partial guaranty of cost of installing kitchen equipment in hotel

being built and to be operated by corporations in which decedent was principal stockholder

was not a necessary expense of administration and was not executed to preserve asset, and

that denial of attorney fees to claimant was proper and order relating to costs was proper.

Affirmed.

____________________

1

An order denying a motion to amend findings of fact and conclusions of law is not an appealable order.

NRCP 72(b). Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d 953 (1970); Cf. Grenz v. Grenz, 78

Nev. 394, 374 P.2d 891 (1962); Harmon v. Tanner Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963).


George Rudiak, of Las Vegas, for Appellant.

Foley Brothers, of Las Vegas, for Respondents.

1. Appeal and Error. Order denying motion to amend findings of fact and conclusions of law is not an appealable order. NRCP

72(b).

2. Executors and Administrators. Claim on assignment of claim secured by continuing guarantee executed by executors under order of

district court to secure purchase of kitchen equipment for hotel which was asset of corporation in which

decedent held stock was not a “necessary expense” of administration authorizing making of such order or

under statute allowing executor or administrator to retain within his control necessary expenses of

administration. NRS 143.050, 150.230.

3. Executors and Administrators. Equality in treatment of creditors of estates is general rule and any intent of legislature to accord

preferential status must be clearly expressed. NRS 143.050, 150.230.

4. Executors and Administrators. Word “preserved” is susceptible to broad range of connotations from maintaining something in status quo

to preventing its total destruction and implies continuance of what previously existed and does not connote

creating something new or extending existing thing or status. NRS 143.050, 150.230.

5. Executors and Administrators. Purchase of kitchen equipment for hotel which was being constructed by corporation and which was to be

operated by another corporation in both of which decedent was principal stockholder did not constitute

preserving or protecting asset but was attempt to put hotel into operating position and claim based on

guaranty of debt for purchasing such equipment was not payable as expense of administration. NRS

143.050, 150.230.

6. Guaranty. Signers of guaranty agreements are not liable for attorney fees incurred in suits to enforce such

agreements in absence of an express provision for such liability. NRS 18.010, subd. 3.

7. Executors and Administrators. District court did not err in refusing to allow recovery of attorney fees by party bringing action against

co-executors of estate on guaranty which was executed by co-executors but which contained no provision

for payment of attorney fees. NRS 18.010, subd. 3.

8. Costs. Where party bringing action against co-executors on partial guaranty filed memorandum of costs more

than five days after it served notice of entry of order on co-executors, district court did not err in granting

co-executors' motion to retax costs. NRS 18.110, subd. 1.


9. Executors and Administrators. Party bringing suit against co-executors pursuant to guaranty executed by them was not entitled to costs

in view of absence of provision for costs in guaranty.

OPINION


Wilbur I. Clark died on or about the 27th day of August, 1965, and the respondents were

appointed and qualified as co-executors of his estate. At the time of his death, Wilbur Clark

was engaged in a number of hotel enterprises including the development of a 310 room hotel

in Austin, Texas, known as “Wilbur Clark's Crest Hotel.” That hotel was being constructed

by W. C. Austin, Inc., a corporation in which the decedent was a principal stockholder at the

time of his death. The hotel was to have been operated under a lease to which the decedent

was one of the participating lessees.

To place the hotel in an operating condition, it was necessary to install certain kitchen

equipment, the installation of which resulted in appellant's claim. On September 23, 1965, the

co-executors of Wilbur Clark's estate petitioned the district court for authority to continue

operating the businesses of the decedent. In that petition the particular facts relating to the

Austin, Texas hotel were set forth. On the same day they obtained an order from the district

court expressly authorizing them to continue the operation of the business of the decedent and

“to perform all acts, execute any and all documents, whether they be in the nature of

promissory notes, trust deeds, continuing guaranties, leases, chattel mortgages, security

agreements pertaining to the enumerated projects in the petition, so as to insure the continuity

of said business.” On January 25, 1966, the co-executors executed a limited guaranty

agreement guaranteeing a promissory note in the amount of $138,287.60, in which W. C.

Austin, Inc., appears as maker, and the appellant as payee. This limited guaranty agreement

ran in favor of D. E. C. Associates, Inc., and was for the purpose of inducing D. E. C.

Associates to endorse the note.

The proceeds of the note made by W. C. Austin, Inc., went to that corporation and were

never delivered to the Wilbur Clark estate. W. C. Austin, Inc., defaulted and a foreclosure

took place, resulting in a deficiency of $119,785.86, plus interest and certain court costs

awarded by the Texas trial court.


The appellant demanded payment of the deficiency from D. E. C. Associates, Inc., as

endorser of the note, and D. E. C. Associates in turn demanded payment from the

co-executors of the Wilbur Clark estate under the limited guaranty agreement. D. E. C.

Associates then assigned its claim under the limited guaranty agreement to appellant, which

brought its verified petition in the Wilbur Clark estate requesting that this debt be treated as

an expense of administration.

The district court found that the appellant's deficiency claim was not entitled to priority as

a cost of administration and denied the petition. An appeal from the order was taken and in

Securities Investment Co. v. Donnelley, 84 Nev. 457, 443 P.2d 551 (1968), we held that

appeal to be premature and remanded the cause for further proceedings to allow the district

court to determine the validity of Securities Investment Company's claim. After remand

several hearings were held and the district court on June 24, 1971, ordered, subject in part to

the prior decision of that court entered on September 12, 1967, 2 that the deficiency claim of

appellant in the amount of $119,785.86, together with interest and $199.85 in costs be

allowed. No award of requested attorney fees was made.

The appellant now contends that the trial court erred in (1) refusing to adjudicate the claim

of the appellant as an expense of administration with priority over the ante-mortem debts of

the decedent; (2) refusing to award attorney fees, and (3) disallowing costs.

[Headnote 2]

1. The claim of the appellant, which is upon an assignment of a claim secured by a

continuing guarantee executed by the respondents under the order of the district court to

secure the purchase of an improvement, i.e. kitchen equipment for a hotel which was the asset

of a corporation in which the decedent held stock, can not properly be classed as a necessary

expense �� $%��!@�/(/@�� K �� $%��(/�&@/�� #�� #��

____________________

2

On September 12, 1967, John C. Mowbray, then a district court judge, filed his Decision, in which he held:

“In the opinion of this Court the loan which is the subject of the pending petition should not be entitled to

priority over the ante-mortem debts of decedent and should be held to be a charge against the estate rather than

an expense of administration.

“THEREFORE, IT IS ORDERED that the petition of Securities Investment Company of St. Louis for an

order directing the Co-Executors to pay its claim forthwith as an expense of administration be, and it is hereby

denied.”


of administration either under NRS 143.050 3 authorizing the making of such an order nor

under NRS 150.230 which allows the executor or administrator to retain within his control

the necessary expenses of administration. NRS 143.050 does not specifically provide for a

preference and cannot be so construed. The effect of NRS 143.050 is to make claims such as

the one presented here a charge against the estate rather than the co-administrators but no

preference is created.

[Headnote 3]

Equality in treatment of creditors of estates is the general rule. Any intent of a legislature

to accord a preferential status must be clearly expressed. In Re Andrew's Estate, 40 N.Y.S.2d

81 (Sur.Ct. 1942); In Re Stewart's Will, 109 N.Y.S.2d 609 (Sur.Ct. 1951). The appellant has

cited no statutes of this state which could be construed to give this debt a preference.

In In Re Allen's Estate, 108 P.2d 973 (Cal.App. 1941), the administratrix in compliance

with a court order entered pursuant to a statute very similar to NRS 143.050, continued to

operate a distributing business for dairy products. There the appellate court held that goods

sold on credit to enable the business to continue could not be classed as an expense of

administration because the statutory authority did not provide for such a preference and

should not be so construed.

We have discovered no authority and none has been cited which would allow the cost of

an improvement to an estate as an expense of administration or as a debt with a priority of

payment ahead of the general creditors. 4 In two California �� $%��!@�/(/��

____________________

3

Historically the identical language found in NRS 143.050 was enacted in the Statutes of California, 1929, p.

157, sec. 1, as an amendment to the California Code of Civil Procedure, Sec. 1581. In the Statutes of California,

1931, p. 587 et seq. (approved May 11, 1931; effective August 14, 1931), certain of the California Civil Code

and the California Code of Civil Procedure, pertaining to the probate of the estates of decedents were repealed

and a Probate Code (of California) was enacted. The amendment to sec. 1581 (the second sentence) was

reenacted as sec. 572 of the Probate Code (of California). The exact wording of sec. 1581 of the California Code

of Civil Procedure was enacted as sec. 164 of the Statutes of Nevada, 1897, and later codified as sec. 9764 NCL

1929. The present language of NRS 143.050 was first enacted in this State on March 26, 1941 and is found in

Statutes of Nevada, 1941, p. 163, and later codified as sec. 9882.195, 1929 NCL 1931-41 Supplement.

4

Cf. Nathan v. Lehman Abraham & Co., 39 Ark. 256 (1882), where money advanced to the administrator to

improve the real estate and protect it against an attachment suit was held to be an expense of administration.


cases decided long before that state enacted legislation similar to NRS 143.050, it was held

that new construction performed on estate property during the course of administration could

not properly be classified as a cost of administration. In In Re Moore, 13 P. 880 (Cal. 1887),

an administrator had expended moneys of the estate in the erection of a new building upon

property belonging to the decedent and claimed reimbursement. The appellate court held that

the trial court erred in allowing that claim, stating: “This money was not expended in the care

and management of the estate. It was the duty of the administrator to administer and turn over

the estate as soon as possible, and not to speculate with it, or carry on business on its account,

or to improve it for the benefit of the heirs.” 13 P. at 884.

In the Matter of Hincheon's Estate, 116 P. 47 (Cal. 1911), that court said: “While it is the

duty of executors to perform valid and uncompleted contracts which have been entered into

by their testator, they are not called on, nor have they the right to expend the funds of the

estate for the doing of new work which the testator himself was not bound to do.” There is

nothing in this record nor is there even a hint or suggestion that the loan money was used to

perform valid and uncompleted contracts which had been entered into by the testator in his

individual capacity. See also In Re Thurber's Estate, 142 N.E. 493 (Ill. 1924) and In Re

Allen's Estate, supra.

In support of its position the appellant relies upon In Re Estate of Sharp, 95 Cal.Rptr., 816

(Cal.App. 1971), Quigley v. Nash, 36 P.2d 112 (Cal. 1934), and In Re Donnelly's Estate, 92

A. 306 (Pa. 1914). Each can be clearly distinguishable from the case at bar. Those cases hold

that expenses of preserving the property of an estate are entitled to a priority of payment

before general creditors are paid. In Perez v. Gil's Estate, 222 P. 907 (N.M. 1924), also relied

upon by the appellant, the trial court specifically found that certain groceries and supplies

furnished by the appellee to the co-administrators to carry on a sheep raising business, were

expenses of administration necessary to preserve and protect the assets of that estate.

[Headnote 4]

The word “preserve” 5 is susceptible to a broad range of connotations from maintaining

something in its status quo to ��

____________________

5

In Webster's Third New International Dictionary, p. 1794 (1968), the definition to preserve is: “To keep

safe from injury, harm or destruction; guard or defend from evil; protect, save.” In Webster's Second New

International Dictionary, p. 1956 (1952), the definition to


preventing its total destruction. It implies the continuance of what previously existed. In none

of its uses does it connote creating something new or extending an existing thing or status.

The purchase of kitchen equipment for “Wilbur Clark's Crest Hotel” is not conceivable

within the range of the meaning of the words “preserve” or “protect.”

[Headnote 5]

Here the action of the co-executor was not in the nature of preserving or protecting an

asset as contended by the appellant, but was in reality an attempt to put the hotel into an

operating position. It amounted to speculation which proved to be costly.

It was held in In Re Smith's Estate, 60 P.2d 574 (Cal.App. 1936), 6 that a bank which had

loaned money to the estate of the decedent on unsecured notes signed in the name of the

estate by the executors, as authorized by the will and an order of the court, to enable the

executors to carry on the ranch operations of the estate, had a valid claim against the estate

for the amount of the loan but such claim was not entitled to any priority over the general

debts and obligations of that estate. That court said: “It follows that the unsecured

indebtedness of the appellant should be classified . . . as an ordinary debt or obligation of the

estate, and not as current expenses of administration exactly the same as though the loan had

been made to the decedent for the same purpose before her death. To hold otherwise would

defeat the very spirit and purpose of the probate law which seeks to distribute the property of

an estate to the heirs, legatees, and creditors of the decedent

____________________

preserve is: “To protect or save, to keep or save from injury or destruction. To maintain.” Cf. Doe v. Scott, 321

F.Supp. 1385 (N.D. Ill. 1971); Concrete, Inc. v. Rheaume Builders, 132 A.2d 133 (N.H. 1957); City of

Cincinnati v. Wright, 67 N.e.2d 358, 361 (Ohio App. 1945); McKeon v. Central Stamping Co., 264 F. 385, 387

(3rd Cir. 1920).

6

The Nevada legislature enacted the statute which is presently NRS 143.050 as the second paragraph of NCL

9882.125 (adopted from the statutes of the State of California (see footnote 3, supra)), several years after In Re

Smith's Estate, supra, and In Re Allen's Estate, supra, had been decided. When a legislature patterns a statute

upon a law of another state, the courts of the adopting state usually follow the construction placed on the statute

in the jurisdiction of its inception. However, in Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947), 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.” 64 Nev. at 437, 183 P.2d at 620. See

Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963); Nootenboom v. State, 82 Nev. 329, 418 P.2d 490

(1966); Sutherland, Statutory �� Construction § 5209.


as speedily and in as unimpaired a condition as possible. The appellant's construction of this

statute would enable the representatives of an estate to speculate on the success of a

questionable enterprise in conducting a farm or for various other purposes at the expense of

those who are entitled to the property and perchance thereby destroy the security of

established debts and valid claims by creating new and subsequent obligations which would

supersede the former ones as preferred claims. This would be a dangerous power to confer

upon the representatives of an estate, and we are of the opinion the Legislature wisely

refrained from doing so. That procedure would be unfair and unjust to the heirs, legatees, and

creditors of the estate, and in the absence of clear statutory provisions to that effect we must

assume it is not the law.” 60 P.2d at 576.

The appellant also argues: “Furthermore, since no creditor appeared in the court below to

object the granting of the appellant's petition it would seem completely inconsistent for the

co-executors who had initially induced the [c]ourt to authorize the continuing guaranty. . . , to

now take the position that the [o]rders of the lower [c]ourt were not reasonably necessary to

preserve and maintain the assets of the [e]state.”

The appellant has ignored the facts as well as the time sequence surrounding the entry of

the order in question. The Petition for Authority to Continue Operation of Business was filed

at 3:40 p.m. on September 23, 1965, the Order Authorizing Co-executors to Continue

Operation of Business was signed by the district judge and filed two minutes later at 3:42

p.m., on September 23, 1965. It recited that “[A]fter examining the petition and evidence

having been heard and it appearing the primary beneficiaries and/or distributees under the

will of the decedent have filed their written approval of said petition and any order this court

may issue predicated thereon and therefore notice of hearing is unnecessary and should be

dispensed with. . . .” The statutory provisions (NRS 149.020(2)) in effect at the time of the

entry of that order required the clerk of the court to set the petition for hearing and give notice

thereof for the period and in the manner required by statute or in the alternative to give such

notice as the court by order may require. Nowhere may it be found that the court had the

authority to order that “notice of hearing is unnecessary and should be dispensed with.” It is

apparent that at that point in time no consideration was given to the ante-mortem creditors.

[Headnotes 6, 7]

2. We turn now to consider whether the district court erred in denying the appellant

attorney fees. An examination of the - � ��6��=��#��


Limited Guaranty 7 reveals that the legal and other costs and expenses for which the

guarantors promised to pay are costs of collection. The provision for the payment of legal

costs relates only to proceedings to collect the note. This action is upon the guaranty. The

signers of guaranty agreements are not liable for attorney fees incurred in suits to enforce

such agreements in the absence of an express provision for such liability. 8 Here the Limited

Guaranty does not contain an express provision for the payment of attorney fees to enforce it.

The district court did not err in refusing to allow the appellant attorney fees. 9 D. W. Jaquays

& Co. v. First Security Bank, 419 P.2d 85 (Ariz. 1966); George Moroy Cigar & Tobacco Co.

v. Henriques, 184 So. 403 (La.App. 1938). See also Cooke v. Mesmer, 128 P. 917 (Cal.

1912); Abbot v. Brown, 22 N.E. 813 (Ill. 1889); Blume v. National Homes Corporation, 441

S.W.2d 176 (Tex. 1969); Schauer v. Morgan, 216 P. 347 (Mont. 1923); 38 Corpus Juris

Secundum, Guaranty § 58.

[Headnote 8]

3. The appellant's claim that the district court erred in its judgment of June 24, 1971, and

in its order of October 5, 1971, granting respondents' motion to retax costs. This contention is

not well taken. Its memorandum of costs and disbursements was filed more than five days

after it had served its notice of entry of order upon the co-executors. The statutory provision,

NRS 18.110(1), requires the prevailing party to serve a copy of his costs upon the adverse

party within five (5) days after the notice of the entry of order or judgment. 10 �C�� DC�� D

____________________

7

Limited Guaranty reads in pertinent part:

“Paragraph I: . . . the undersigned . . . hereby unconditionally guarantee . . . that the Obligor will promptly

and punctually perform . . . that all sums . . . will be promptly paid in full . . . together with any and all legal and

other costs and expenses paid or incurred in connection therewith. (Emphasis added.)

“Paragraph II: The liability of the undersigned hereunder may be enforced directly against the undersigned,

and each of them, independently of and without proceeding against the Obligor. . . .”

8

NRS 18.010(3) is not controlling in this case.

9

Cf. Wiener v. Van winkle, 78 Cal.Rptr. 761 (Cal.App. 1969), a case cited by the appellant, where the

guaranty agreement read: “25. I agree to pay without demand reasonable attorney's fees and all costs . . . or in

enforcing this Guaranty against me or any other guarantor.”

1 0

NRS 18.110(1): “The party in whose favor judgment is rendered, and who claims his costs, must deliver to

the clerk, and serve a copy upon the adverse party, within 5 days after the verdict or notice of the entry of

judgment of the court or master, or such further time as the court or judge may grant, a memorandum of the

items of his costs and


[Headnote 9]

Appellant's argument that in any event the same items should have been recoverable as

contractual costs fails for the same reason that its claim for attorney fees fails. The costs

referred to in the Limited Guaranty 11 are costs of collection on the original note. Here the

Limited Guaranty does not contain an express provision for the payment of costs in

connection with its enforcement. The district court did not err in disallowing costs to the

appellant.

The orders of the district court are affirmed.

Thompson, C. J., and Gunderson and Zenoff, JJ., and Guinan, D. J., concur.

____________________

necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the

party, or his attorney or agent, or by the clerk of his attorney, stating that to the best of his knowledge and belief

the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.”

11

See footnote 7, supra.

____________

��89 Nev. 350, 350 (1973) Erickson Constr. Co. v. Nevada Nat'l Bank��

ERICKSON CONSTRUCTION CO., a Nevada Corporation,

Appellant, v. NEVADA NATIONAL BANK, Respondent.

No. 6946

September 10, 1973 513 P.2d 1236

Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.

Bowen, Judge.

Contractor brought action to foreclose mechanic's lien. The district court granted summary

judgment in favor of bank which held prior recorded deed of trust and the contractor

appealed. The Supreme Court, Mowbray, J., held that contractor's mechanic's lien was subject

to bank's prior recorded deed of trust and, when bank foreclosed its deed of trust, the

mechanic's lien was extinguished.

Affirmed.

McCune & Williams and Virgil D. Dutt, of Reno, for Appellant.

Breen, Young, Whitehead & Hoy, Chartered, of Reno, for Respondent.


1. Mortgages. One who undertakes construction of improvements on real property subject to a recorded mortgage or

deed of trust does so with constructive notice of the prior encumbrance and any mechanics' liens that may

arise out of the construction of the intended improvements are junior and subordinate to the earlier

recorded mortgage or deed of trust. NRS 108.225.

2. Mortgages. Contractor's mechanic's lien arising from construction of building was subject to prior recorded deed of

trust of bank and, when bank foreclosed on its deed of trust, mechanic's lien was extinguished, despite

contention that mechanic's lien was a severable lien attaching to the improvements only and not the real

property. NRS 108.225.

OPINION


Appellant, Erickson Construction Co., commenced this action to foreclose its mechanic's

lien on a building it had constructed. One of the defendants in the action, Respondent Nevada

Bank of Commerce, now Nevada National Bank, held a prior recorded deed of trust. On a

stipulated set of facts, the lower court granted summary judgment in favor of the Bank,

holding that: (1) The security of the recorded deed of trust held by the Bank extended to a

subsequently erected building; (2) the lien of the deed of trust had priority over a mechanic's

lien that came into existence after the recordation of the deed of trust; and (3) the purchase at

the foreclosure sale by a senior lien claimant eliminated the junior liens. Erickson now

appeals, contending that the mechanic's lien is a severable lien attaching to the improvements

only and not the real property. We do not agree.

1. The Facts.

Magnum T. Inc. of Nevada was the fee owner of the subject property, and on June 15,

1966, executed a promissory note and deed of trust in the sum of $66,000 in favor of Nevada

National Bank, formerly Nevada Bank of Commerce. Various sums were advanced by the

Bank under said note from June 21, 1966, through December 14, 1967. On July 27, 1966,

Erickson commenced construction on the subject property, and a notice of completion was

recorded on November 8, 1966. Erickson recorded a mechanic's lien upon the property on

December 13, 1966, and amended its claim on March 16, 1967. When Magnum failed to

make payments on the note as ��A��


they became due, the Bank commenced foreclosure proceedings under the deed of trust. On

July 14, 1967, the Bank recorded a notice of breach and election to sell under the deed of

trust. The property was duly noticed for sale and was sold to the Bank for $48,712 in

satisfaction of a portion of the indebtedness then secured by the deed of trust. Erickson then

brought this action to foreclose its mechanic's lien upon the subject property. The Bank, as

one of the defendants below, opposed the action on the ground that the lien was extinguished

by the foreclosure of the deed of trust.

The priority of liens in this State is established by NRS 108.225, which provides that

mechanics' liens are superior to mortgages or other encumbrances only when such liens or

encumbrances have attached subsequent to the time construction was commenced or when

the lienholder had no actual or constructive notice at the time work was commenced. 1

There is no statutory provision in the State of Nevada for the severability of liens, and this

concept has been rejected in states having statutes similar to those of Nevada. In Barr Lumber

Co. v. Shaffer, 238 P.2d 99 (Cal.App. 1951), the California court rejected the concept of

severability of liens and, in affirming the principle of the superiority of prior recorded

mortgages over subsequent liens, at 101 cited Basham v. Goodholm & Sparrow Inv. Co., 152

P. 416, 420 (Okla. 1915), as follows:

“. . . ‘* * * [T]here are many states which permit materialmen and mechanics, who furnish

material and labor to improve land upon which there is a prior recorded mortgage, to obtain a

lien on the improvements so constructed superior �� 5�� #�� K��

____________________

1

NRS 108.225:

“1. The liens provided for in NRS 108.221 to 108.2395, inclusive, are preferred to:

“(a) Any lien, mortgage or other encumbrance which may have attached subsequent to the time when the

building, improvement or structure was commenced, work done, or materials were commenced to be furnished.

“(b) Any lien, mortgage or other encumbrance of which the lien-holder had no notice and which was

unrecorded at the time the building, improvement or structure was commenced, work done, or the materials were

commenced to be furnished.

“2. Every mortgage or encumbrance imposed upon, or conveyance made of, property affected by the liens

herein provided for between the time when the building, improvement, structure or work thereon was

commenced, or the materials thereof were commenced to be furnished, and the expiration of the time herein

fixed in which liens therefor may be recorded, whatever the terms of payment may be, shall be subordinate and

subject to the liens in full herein authorized, regardless of the date of recording of the liens.”


to the mortgage lien, but such priority operates only upon the improvements, the mortgage

holder still retaining his priority as to the land; but, as this rule contravenes the common law,

it cannot be done in the absence of an expressed statute which plainly authorizes it. It will be

noted that statutes that authorize it are clear and explicit, and leave nothing to conjecture.'”

See also Utah Sav. & Loan Ass'n v. Mecham, 366 P.2d 598 (Utah 1961); Nelson v. Bailey,

338 P.2d 757 (Wash. 1959).

[Headnotes 1, 2]

One who undertakes construction of improvements on real property that is subject to a

recorded mortgage or deed of trust does so with constructive notice of the prior encumbrance,

and any mechanics' liens that may arise out of the construction of the intended improvements

are junior and subordinate to the earlier recorded mortgage or deed of trust. We hold,

therefore, that appellant's mechanic's lien was subject to the prior recorded deed of trust of the

Bank and that, when the Bank foreclosed on its deed of trust, the mechanic's lien was

extinguished. Call v. Thunderbird Mortgage Co., 375 P.2d 169 (Cal. 1962); Jones v.

Sacramento Sav. & Loan Ass'n, 56 Cal.Rptr. 741 (Cal.App. 1967).



____________

��89 Nev. 353, 353 (1973) Sellman Auto, Inc. v. McCowan��

SELLMAN AUTO, INCORPORATED, a Nevada Corporation, Appellant, v. JERRY L.

McCOWAN and CLARA McCOWAN, Respondents.

No. 6977

September 10, 1973 513 P.2d 1228

Appeal and cross-appeal from judgment of Eighth Judicial District Court, Clark County;

Carl J. Christensen, Judge.

An automobile dealer brought an action to recover for damage resulting from default of the

buyers of a new car on their installment payments under the conditional sales contract, and

the buyers counterclaimed for damages for breach of an express warranty and for refund of

their trade-in allowance. The district court held against the dealer and awarded the buyers

only the amount of their trade-in allowance and both the dealer and the buyers appealed. The

Supreme Court, Mowbray, J., held that the evidence supported the trial court's � � ��(1��(/�///1� �� +��


finding that a salesman for the dealer had made a 5-year or 50,000-mile warranty as to the car,

that the buyers had relied thereon, that the warranty was not nullified by disclaimer provisions

printed on the back of the conditional sales contract which were not called to the attention of

the buyers, and that the buyers had not waived their right to rescind the contract by failing to

return the automobile after they had discontinued making payments, in view of evidence that

their continued use of vehicle was induced by promises on the part of the dealer's agent to

remedy the defects.

Affirmed.

Robert K. Dorsey, of Las Vegas, for Appellant.

Robert L. Gifford, of Las Vegas, for Respondents.

1. Sales. Evidence supported trial judge's finding that automobile dealer's salesman verbally warranted new car to

buyers for 5 years or 50,000 miles, and that buyers relied on such warranty. NRS 96.210.

2. Sales. Express 5-year or 50,000-mile warranty made as to new car by automobile dealer's salesman to

purchasers was not nullified by disclaimers printed on back of conditional sales contract which were not

called to purchasers' attention. NRS 96.210.

3. Sales. Where existence of disclaimer is unknown to purchaser, express warranties made by seller remain in

force. NRS 96.210.

4. Sales. Evidence supported trial court's finding that purchasers of new car did not waive their right to rescind

contract on ground of breach of warranty when they failed to return automobile after having discontinued

making payments, but instead continued use of vehicle because they were induced to do so by promises on

part of dealer's agent to remedy defects.

5. Sales. Question of waiver of right to rescind sales contract for breach of warranty is factual one, and where

market sophistication of seller exceeds that of buyer, finding of lower court that there was no waiver of

right to rescind is not error.

6. Appeal and Error. Where cross-appellants cited no authority to support their position, contentions could not be considered.

OPINION


Sellman Auto, Incorporated, commenced this action on July 28, 1969, for the recovery of

damages resulting from an alleged ��1��;��


default by defendants-respondents, the McCowans, on the purchase of a new Chrysler

automobile. The McCowans filed a counterclaim for breach of warranty, and they sought

recovery of their trade-in allowance and the payments they had made to Sellman under the

conditional sales contract. The district judge ordered that Sellman take nothing by its

complaint and the McCowans recover only the amount of their trade-in allowance,

disallowing the payments they had made under the sales contract. Sellman has appealed, and

the McCowans have responded with a cross-appeal.

1. The Facts.

On December 12, 1964, Respondents Jerry L. McCowan and Clara McCowan, his wife,

purchased a new Chrysler automobile from Appellant Sellman Auto, Incorporated, for a total

purchase price of $6,991 less a net trade-in allowance of $1,327.90. Payment of the purchase

price was to be made in monthly installments pursuant to a conditional sales contract that

Jerry L. McCowan testified he had signed in blank. The reverse side of the contract form,

which contained a disclaimer of all unwritten warranties, had not been called to the attention

of either of the respondents.

At the time of the transaction, Gilbert Merritt, salesman for appellant, represented that all

defects that occurred within 50,000 miles or 5 years would be corrected. The McCowans

testified that this representation was relied upon in purchasing the automobile.

Shortly thereafter, numerous mechanical difficulties developed that Sellman failed to

satisfactorily remedy. In June or July of 1965, the McCowans refused to make further

payments, and the automobile was repossessed and later sold for $4,500. At the time of

repossession, the McCowans had made total payments pursuant to the conditional sales

contract in the amount of $1,168.68.

2. Issues Presented on Appeal.

(a) The Express Warranties Made by Appellant's Salesman Merritt.

[Headnote 1]

At the trial both Respondent Jerry L. McCowan and Salesman Gilbert Merritt testified

that, prior to the execution of the sales contract, Merritt had represented to the respondent that

the automobile was a “top line” car with a 5-year or 50,000-mile warranty and that any

defects would be corrected. Merritt did not explain what the warranty covered, nor did he

state that any limitations were contained therein.

The Uniform Sales Act, chapter 96 of NRS, then in effect, �� L��*��#�� &


governed the relationship between the parties. 1 Under the Act, an express warranty was one

in which any affirmation of fact or any promise relating to the goods involved was made by

the seller and relied upon by the buyer. 2

A fair reading of the record demonstrates that the trial judge had sufficient evidence upon

which to make the determination that the statements of Mr. Merritt, together with the

McCowans' reliance thereon, constituted an express warranty within the purview of the

Uniform Sales Act. Where there is substantial evidence to support the findings of the lower

court, they will not be disturbed on appeal. Lyon v. Walker Boudwin Constr. Co., 88 Nev.

646, 503 P.2d 1219 (1972); Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624

(1972).

(b) The Effect of the Disclaimer.

[Headnotes 2, 3]

Sellman next contends that the effect of the express warranty was nullified by the

disclaimer printed on the back of the conditional sales contract. We do not agree. Respondent

Jerry L. McCowan testified that he had never seen the disclaimer and that it had not been

called to his attention. Appellant's salesman, Merritt, corroborated this testimony. Where the

existence of a disclaimer is unknown to a purchaser, the express warranties made by the seller

remain in force. Willard Van Dyke Productions, Inc. v. Eastman Kodak Co., 189 N.E. 2d 693

(N.Y. 1963); Moorhead v. Minneapolis Seed Co., 165 N.W. 484 (Minn. 1917); Annot., 160

A.L.R. 357, 367 (1946).

(c) The Waiver of Right to Rescind.

[Headnote 4]

Sellman also claims that the trial court committed error in refusing to rule that the

McCowans waived their right to rescind the contract when they failed to return the

automobile after they had discontinued making payments. The record �� ;�� +��

____________________

1

The Uniform Sales Act was repealed by a law enacted in 1965, effective March 1, 1967.

2

Law of Mar. 18, 1915, ch. 159, § 12, [1915] Stats. Nev. (NRS 96.210, repealed by Law of April 12, 1965,

ch. 353, § 55, [1965] Stats. Nev., effective Mar. 1, 1967), provided, in relevant part:

“Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the

natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer

purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to

be a statement of the seller's opinion only, shall be construed as a warranty.”


contains sufficient evidence for the court to have concluded that continued use of the vehicle

by the McCowans was induced by promises on the part of Sellman's agent to remedy the

defects. On numerous occasions the McCowans returned the car to Sellman for repairs, which

repairs either were not made or were made in an unworkmanlike manner.

[Headnote 5]

The question of waiver is a factual determination, and where, as in this case, the market

sophistication of the seller exceeds that of the buyer, the finding of the lower court that there

was no waiver of the right to rescind is not error. Lehigh, Inc. v. Stevens, 468 P.2d 177 (Kan.

1970); Lester v. Percy, 364 P.2d 423 (Wash. 1961).

The remaining assignments of error urged by Sellman, if error at all, cannot reasonably be

deemed to have affected substantial rights and therefore shall be disregarded. NRS 178.598;

El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 484 P.2d 1089 (1971).

[Headnote 6]

The McCowans, in their cross-appeal, argue that the trial court erred in not awarding them

damages for the payments they made to Sellman under the conditional sales contract. They

have cited no authority to support their position. Therefore, their contention may not be

considered on appeal. Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89

(1971); Riverside Casino Corp. v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964).

Accordingly, the judgment of the district court is affirmed.


____________

��89 Nev. 358, 358 (1973) Winterberg v. University of Nevada System��

FRIEDWARDT WINTERBERG, Appellant, v. THE UNIVERSITY OF NEVADA

SYSTEM, THE BOARD OF REGENTS OF UNIVERSITY OF NEVADA SYSTEM; FRED

M. ANDERSON, JAMES H. BILBRAY, PROCTER HUG, Jr., HAROLD JACOBSEN,

MOLLY KNUDTSEN, PAUL McDERMOTT, WILLIAM MORRIS, MEL STENINGER,

HELEN THOMPSON, ARCHIE C. GRANT, LOUIS LOMBARDI, in Their Capacity as

Members of Said Board of Regents; NEIL D. HUMPHREY, in his Capacity as Chancellor of

the University of Nevada System; ROMAN J. ZORN, in his Capacity as President of

University of Nevada at Las Vegas; N. EDD MILLER, in his Capacity as President of

University of Nevada at Reno; CHARLES R. DONNELLY, in his Capacity as Director of the

COMMUNITY COLLEGE DIVISION in Nevada; JOHN M. WARD, in his Capacity as

Director of the DESERT RESEARCH INSTITUTE, Respondents.

No. 7126

September 10, 1973 513 P.2d 1248

Appeal from judgment of the Eighth Judicial District Court, Clark County; Leonard I.

Gang, Judge.

Professor brought action seeking declaration that he had permanent tenure in university

system as a whole and not merely within one division and seeking injunctive relief against

terminating him as a university professor. The district court found professor to be tenured in

only one division, and he appealed. The Supreme Court, Mowbray, J., held that Desert

Research Institute was a separate division of University of Nevada in 1966 when professor

was granted tenure by the Institute, that university president had no authority to grant

professor Systemwide tenure and that even if professor held joint appointment, he was not

entitled to Systemwide tenure.

Affirmed.

Hilbrecht, Jones & Schreck, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; and Thomas G. Bell, Special Deputy Attorney

General, Las Vegas, for Respondents.


1. Officers. Generally, “tenure” is a mode of holding or occupying, and “tenure of an office” means the manner in

which it is held, especially with regard to time.

2. Colleges and Universities. For purpose of claim to Systemwide tenure by professor, who had been granted tenure by Desert

Research Institute in 1966, such Institute was a separate division of University of Nevada at such time

rather than a part of the University. NRS 396.795, 396.7953.

3. Colleges and Universities. Even if university president's letter, which notified “Desert Research Institute Associate Professor” that

he had been given tenure as a member of “University Faculty,” could be construed as having special

meaning, president had no authority to grant professor Systemwide tenure. NRS 396.795, 396.7953.

4. Colleges and Universities. Even if university professor held a joint appointment as associate professor of atmospheric physics to

college of arts and sciences and the Desert Research Institute, such professor, who was granted tenure by

Institute, was not entitled to Systemwide tenure in university where his employment contract for 2 years

immediately prior to his obtaining tenure listed his appointment as “Desert Research Institute Associate

Professor” and where he never taught more than one course per term at University. NRS 396.795,

396.7953.

OPINION


On June 30, 1971, appellant, Friedwardt Winterberg, filed a complaint for declaratory and

injunctive relief against respondents, hereinafter referred to as the University of Nevada

System or the System, requesting that the court declare that Winterberg be recognized as

having permanent tenure in the entire University of Nevada System as a whole and not merely

within one division. Winterberg further sought a temporary restraining order, a preliminary

injunction, and a permanent injunction to permanently restrain and enjoin the University of

Nevada from terminating him as a university professor. A temporary restraining order was

issued, and subsequently a preliminary injunction was granted.

At the hearing on the permanent injunction, the district court held that Winterberg was

tenured in only one division of the University of Nevada System, the Desert Research

Institute. Winterberg now appeals, contending that the trial court committed reversible error

in limiting his tenure solely ��#�� <��%��


and exclusively to the Desert Research Institute. We do not agree, and we affirm the ruling of

the district court. 1

1. The Facts.

On June 1, 1963, Winterberg received a joint appointment as associate professor of

atmospheric physics to the college of arts and sciences and to the Desert Research Institute

(“DRI”). On February 12, 1966, appellant was granted tenure in DRI by the board of regents.2

The University of Nevada System was established by the board of regents on February 10,

1968, and was recognized by the 1969 Legislature by enactment of chapter 666, Statutes of

Nevada 1969, which became effective July 1, 1969. One result of the reorganization was to

establish four divisions of the System, namely, the University of Nevada, Reno; the

University of Nevada, Las Vegas; Desert Research Institute; and the Community College

Division. All faculty are now employed in one of these four divisions, the chancellor's office,

the computing center, or the University Press.

On March 13, 1971, the board of regents, pursuant to the reorganization of the System,

passed a motion that any person who was granted tenure prior to February 10, 1968, would be

recognized as holding tenure in the division in which he held appointment at the time tenure

was granted. 3 Earlier in �� K�� !

____________________

1

The University of Nevada System filed a cross-appeal, which was dismissed without objection.

2

The minutes of the February 12, 1966, meeting of the board of regents of the University of Nevada relating

to Winterberg's grant of tenure read as follows, at 182-183:

“(2) Recommendations for Tenure

“MOTION by Mr. Hug, seconded by Mr. Jacobsen, carried without dissenting vote that the Committee

recommended to the Board the approval of the granting of tenure, effective July 1, 1966, to the following:

“Desert Research Institute

“Friedwart [sic] Winterberg, Associate Professor

. . .

“ACTION OF THE BOARD:

“MOTION by Mr. Jacobsen, seconded by Mr. Ronzone, carried unanimously that the action of the

Committee become the action of the Board.”

The motion passed by the board of regents is reflected in the minutes of the March 13, 1971, meeting as

follows, at 89:

“33. Rights of Faculty Granted Tenure Prior to Establishment of the University of Nevada System . . .

“Mr. Hug MOVED that faculty who were granted tenure prior to February 10, 1968, shall be recognized as

holding tenure in the division in which he held appointment at the time tenure was granted. Motion seconded by

Mr. Bilbray, carried without dissent.”


that meeting the board of regents tabled a resolution that would have granted Systemwide

tenure to any professor who had received tenure in a particular division prior to the

reorganization of the System. 4

Respondents subsequently proceeded to terminate Winterberg's tenure and employment in

the DRI by claiming the existence of a financial exigency. It was in response to the pending

termination that this litigation commenced.

2. The Concept of Tenure.

[Headnote 1]

There is little question that tenure when acquired by a faculty member is a valuable right

and an important part of the university systems throughout the United States. See State ex rel.

Saxtorph v. District Court, 275 P.2d 209 (Mont. 1954); Holbrook v. Board of Educ., 231 P.2d

853 (Cal. 1951); Titus v. Lawndale School Dist., 322 P.2d 56 (Cal.App. 1958). The term

“tenure” evolved from the mode or system of holding lands or tenements in subordination to

some superior, which in the feudal ages was a leading characteristic of real property. In its

general sense, it is a mode of holding or occupying, and we speak of the tenure of an office

meaning the manner in ��

____________________

4

The tabled resolution read as follows:

“WHEREAS, the Board of Regents did, on February 10, 1968, reorganize the University of Nevada as the

University of Nevada System; and

“WHEREAS, the Nevada State Legislature recognized that reorganization by enactment of Chapter 666,

Statutes of Nevada 1969; and

“WHEREAS, faculty granted tenure prior to reorganization are recognized by the Board of Regents as

having rights in the ‘University Faculty' which are considered different than [sic] the tenure rights of faculty

granted tenure after reorganization;

“NOW, THEREFORE, BE IT RESOLVED that the Board of Regents directs that any faculty member with

tenure granted prior to February 10, 1968 shall be recognized as having tenure in the ‘University Faculty' as well

as tenure in a division of the University of Nevada System.

“AND BE IT FURTHER RESOLVED, that the Board of Regents directs that if such a faculty member is

notified of pending termination under the provisions of Chapter IV, Section 1.6, i.e. for financial exigency, he

shall be entitled to a hearing by a five member ad hoc committee on appeals appointed by the Chancellor from

the faculties of the four divisions and the non-division faculty (i.e. Chancellor's Office, Computing Center and

the University Press); such committee shall, in conformity with the spirit of Chapter IV, Section 1.5 of the

University Code, submit its report and recommendations to the Board of Regents for its review and final

decision.” Board of Regents Univ. of Nev. Systems Minutes of Meeting Mar. 13, 1971, at 81.


which it is held, especially with regard to time. Black's Law Dictionary 1639 (4th ed. 1951). 5

In the University of Nevada System, the regulations regarding tenure are contained in

chapter IV of the University Code, which has the effect of law in the State of Nevada. See

State ex rel. Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515 (1953). While the

term “tenure” is not specifically defined in the Code, its meaning can be inferred from chapter

IV, which provides in pertinent part:

“SECTION 1—Tenure

“. . . Full-time faculty members required to serve a probationary period will, at the

expiration of such probationary period, have permanent tenure, and their services will be

terminated only for adequate cause, except in the case of retirement for age, financial

exigencies, or extraordinary circumstances (such as a state of [sic] national emergency or

prolonged disability). In the interpretation of this principle of tenure, the following academic

practices are operative:

. . .”

“1.6 If a permanent appointment [that of a tenured professor] is terminated because of

financial exigency, the released faculty member's place will not be filled by a new appointee

within a period of two years, unless the released faculty member has been offered, and has

declined, the reappointment. If a permanent appointment is terminated because a special

subject has been dropped, or a curriculum or course reorganized, the faculty member

concerned will be continued on the faculty in some other capacity, if possible. . . .

Termination of a permanent appointment because of financial exigency will be demonstrably

bona fide.

“. . .

“1.8 Tenure in academic departments is a privilege reserved only for professional staff

members who have earned the right to tenure by virtue of experience in teaching or research. .

. .” University of Nevada System, Univ. Code ch. IV, § 1 (Faculty POLICY Bull. # 68-3, July

1968).

Under the University Code, then, the object of Winterberg's attempt to establish his rights

to Systemwide tenure is to compel a transfer to a comparable position within the System in

the event financial exigency terminates his position at DRI.

3. DRI as a Division of the University of Nevada System.

____________________

5

For an interesting discussion of academic tenure, see Van Alstyne, Tenure: A Summary, Explanation, and

“Defense”, American Association of University Professors, 77 Bull. 328 (1971).


[Headnote 2]

Winterberg bases his claim to Systemwide tenure upon the assertion that the DRI was not

a separate division of the University of Nevada but was part of the University of Nevada,

Reno, at the time he received his tenure in 1966. We do not agree.

In 1963, the DRI was established by NRS 396.795, which provides:

“To contribute more effectively to the security of the nation and to promote the general

welfare of the State of Nevada and its citizens through the development of educational and

scientific research, the board of regents of the University of Nevada is authorized to establish

an educational and scientific research division of the university, to be known as the desert

research institute.”

Moreover, the personnel policy and procedure for the DRI are separate and distinct from

normal University policies. 6 Finally, the contract under which Winterberg held his position

during the time he received his tenure shows that he was appointed solely as a member of the

DRI staff.

[Headnote 3]

Appellant puts great emphasis upon a letter from President Armstrong, notifying him that

he had been given tenure as a member of the “University Faculty”. The term “University

Faculty” at that time included all persons holding professional positions and included those

who were not tenured. Even if the term “University Faculty” could be construed as having

special meaning, the board of regents alone is the body which must make final approval of

tenure, and President Armstrong had no authority to grant Systemwide tenure on his own.

University Code, ch. II, § 2.8 (Faculty POLICY Bull. # 68-3, July 1968).

4. Joint Appointment.

[Headnote 4]

Winterberg further asserts that he is entitled to Systemwide tenure on the ground that he

held a joint appointment as associate professor of atmospheric physics to the college of arts

and sciences and the DRI. Although Winterberg may have had �� ""��

____________________

6

NRS 396.7953 provides in pertinent part:

“1. The board of regents may devise and establish personnel policies and procedures in connection with the

operation of contractual or sponsored research activities [sic] of the institute, separate and apart from those

personnel policies and procedures established for the professional personnel of other colleges and divisions of

the university.”


a joint appointment as his initial position, the record clearly shows that when he was granted

tenure in 1966 he did not possess such joint appointment. Appellant's employment contract

for the 2 years immediately prior to his obtaining tenure lists his appointment as “Desert

Research Institute Associate Professor.” In addition, the record of his teaching at the

University of Nevada, Reno, shows that at no time did he ever teach more than one course per

term. Thus, even if Winterberg were considered to have a joint appointment, his status as a

part-time teacher does not entitle him to a tenured position. 7

A fair reading of the record demonstrates that there is substantial evidence to support the

decision of the trial court that Winterberg did not receive Systemwide tenure, but only that

within the division of the DRI. Where there is substantial evidence to support the lower

court's decision, we will not disturb it on appeal. Perry v. Law Enforcement Electronics, Inc.,

88 Nev. 180, 495 P.2d 355 (1972); Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d

624 (1972). Accordingly, the judgment of the lower court is affirmed.



I concur in the result.

____________________

7

The University Code in effect at the time provided in pertinent part:

“The foregoing principles and regulations governing tenure apply only to full-time regular employees of the

University holding rank of Instructor, Assistant Professor, Associate Professor, Professor, or equivalent ranks in

effect at this University. They do not apply to special faculty appointments, which include Visiting Professor,

Lecturer, Instructional Assistant, and all term, part-term, or temporary appointments. All special faculty

appointments are governed by the terms of the individual contracts.” University Code, University of Nevada

Regulations on Tenure and Academic Freedom, § I.A. 7 (Faculty Policy Bull. 64-8 at 34, Sept. 4, 1964).

____________

��89 Nev. 364, 364 (1973) Kovack v. State��

MICHAEL H. KOVACK, Appellant, v. THE STATE


No. 7272

September 10, 1973 513 P.2d 1225

Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,

Clark County; Clarence Sundean, Judge.


Defendant was convicted in the district court of robbery, and he appealed. The Supreme

Court held that trial court did not err in failing to give proposed instruction that jury should

adopt theory consistent with defendant's innocence if there were two reasonable theories

supported by testimony and one of such theories was consistent with defendant's innocence.

Affirmed.

Jones & Holt, of Las Vegas, for Appellant.



Criminal Law.

Trial court did not err in failing to give proposed instruction that jury should adopt theory consistent

with defendant's innocence if there were two reasonable theories supported by testimony and one of such

theories was consistent with defendant's innocence, in view of direct evidence and absence of indication

that other instructions, including those on reasonable doubt, were inadequate.

OPINION

Per Curiam:

Appellant was charged by information on four counts of robbery. At the trial, prosecution

introduced the testimony of witnesses who identified appellant as one of the perpetrators of

the robbery. Appellant's defense consisted of an alibi to which he testified during trial.

Convicted of robbery, appellant assigns as error the failure of the trial court to give the

following proposed instruction:

“If, upon a fair and impartial consideration of all the evidence in the case, the jury finds

that there are two reasonable theories supported by the testimony in the case, and that one of

such theories is consistent with the theory that the Defendant is innocent of charges contained

in the information and that the other is consistent with the guilt of the Defendant, then it is the

law, and the law makes it the duty of the jury, to adopt that theory which is consistent with

the innocence of the Defendant.”

In view of the direct evidence in this case and there being no indication that other

instructions, including those on reasonable doubt, were inadequate, appellant's contention is

without merit. Holland v. United States, 348 U.S. 121 (1954); Scott v. State, =&�$��'


72 Nev. 89, 295 P.2d 391 (1956); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970).


____________

��89 Nev. 366, 366 (1973) Hall v. State��

BILLY DON HALL, Appellant, v. THE STATE


No. 6856

September 10, 1973 513 P.2d 1244

Appeal from a judgment in the Eighth Judicial District Court, Clark County; Clarence

Sundean, Judge.

Defendant was convicted before the district court of burglary, and he appealed. The

Supreme Court, Batjer, J., held that credibility of witness could not be attacked for first time

on appeal, that evidence supported conviction, that fact that home of one of jurors was

burglarized and that such fact had been communicated to another juror did not entitle

defendant to mistrial, that refusal to instruct, in effect that if testimony reasonably supported

either theory consistent with innocence or theory consistent with guilt, jury had to acquit was

not error and that trial judge's statement that “I'm going to sentence you to prison” was not a

presentence pronouncement that judge was planning to arbitrarily send defendant to prison.

Affirmed.

Morgan D. Harris, Public Defender, Stewart L. Bell and Joseph T. Bonaventure, Deputy

Public Defenders, Clark County, for Appellant.

Robert List, Attorney General, State of Nevada; Roy A. Woofter, District Attorney, and


1. Criminal Law. Credibility of witness could not be attacked for first time on appeal from conviction.

2. Criminal Law. Weight and value of testimony of witness is question for trier of fact to determine.

3. Burglary. Evidence, beyond testimony of state witness who had been convicted of a felony, supported conviction of

burglary. NRS 50.015, 50.095.

��89 Nev. 366, 367 (1973) Hall v. State��

4. Jury.

That juror has been victim of burglary committed during burglary trial does not, in and of itself,

disqualify her as a juror. NRS 16.050, 175.071, 175.121, subd. 4.

5. Criminal Law. That home of one of jurors was burglarized during first day of trial of burglary case and that such fact had

been communicated to another juror did not entitle accused to new trial, absent showing of prejudice on

part of any juror. NRS 16.050, 16.050, subd. 1(g), 16.060, 175.071, 175.121, subd. 4.

6. Criminal Law. Refusal in criminal prosecution to instruct, in effect that if testimony reasonably supported either theory

consistent with innocence or theory consistent with guilt, jury had to acquit accused, was not error where

jury was properly instructed on standards for reasonable doubt.

7. Criminal Law. Trial judge's statement, which was made prior to receiving presentence report or hearing evidence by

accused or his counsel in mitigation, that “I'm going to sentence you to prison” was not a presentence

pronouncement that judge was planning to arbitrarily send accused to prison, but only a statement of

judge's intention to follow law requiring that sentence first be imposed before its execution could be

suspended and probation granted. NRS 176.015, 176.033, 176.135, 176.145, 176.185.

OPINION


Ronald Fisher testified at the appellant's trial that on the afternoon of May 6, 1971,

between 3:00 and 3:30 p.m., he was driving in the alley behind Penwood Street in Las Vegas,

Nevada, and observed a white 1966 Pontiac automobile, with a crashed-in side, parked with a

driver whom he later identified as the appellant. He further testified that he saw another

person wearing black gloves crawl out of the window of an apartment, get into the Pontiac

automobile and they drove off.

Within five minutes Fisher telephoned and reported the incident to the Las Vegas police

department and the information was broadcast to the officers on patrol. Shortly thereafter the

police arrested the appellant for reckless driving. At the time of his arrest he was driving a

white Pontiac with a crashed in side. On the back seat of the automobile was a portable TV,

on the front seat a tape recorder, and on the back floor a crowbar, a screwdriver and a pair of

black gloves.

The portable television set and the tape recorder found in the white Pontiac were identified

by the tenant as having been taken from his apartment. That was the same apartment from��

��89 Nev. 366, 368 (1973) Hall v. State��

which the person with black gloves had been seen departing through a window.

At a line-up conducted later that evening, Fisher was unable to immediately identify the

appellant who was then wearing jail clothes, however, within a short period of time after

leaving the line-up area, Fisher telephoned the police and identified the appellant by name. At

the trial he identified the appellant as one of the occupants of the Pontiac and he testified that

he had known the appellant from school and other activities. The record contains some

conflicting testimony concerning statements made to a representative of the Public Defender's

office at the line-up by the witness. 1

The appellant's trial began on October 26, 1971. On the second day of the trial, after the

morning recess, it was revealed that juror Darlene Zeh's house had been burglarized during

the first day of the trial. At that time the appellant's attorney moved for a new trial [mistrial].

The trial judge out of the presence of the other jurors, questioned Darlene Zeh and

determined, as a matter of fact, that she could still objectively participate in the trial even

though she had been the victim of a similar crime. Although she admitted telling one of the

other jurors about the incident, no other jurors were questioned.

During the giving of instructions to the jury, the appellant requested the following

instruction which was not given: “If, upon a fair and impartial consideration of all the

evidence in the case, the jury finds that there are two reasonable theories supported by the

testimony in the case and that one of such theories is consistent with the theory that the

defendant is innocent of charges contained in the information and the other is consistent with

the guilt of the defendant, then it is the law and the law makes it the duty of the jury to adopt

that theory which is consistent with the innocence of the defendant and find the defendant not

guilty.”

After the jury had returned a verdict of guilty, the trial judge commented that he agreed

with the verdict. Following the discharge of the jury the trial judge in a colloquy relating ��

____________________

1

Jerrold J. Courtney testified: “Well, he [Fisher] said, I asked him before he went into the line-up room, I

said, now, if you saw these two suspects would you be able to recognize them and he said, I most definitely

would. He said, I got a good look at them.”

“. . . [A]fter the line-up was over Mr. Fisher, said, no, that's not them, neither of the two people that I saw are

in this line-up. . . .”

On cross-examination, Fisher denied telling Jerrold J. Courtney, the representative of the public defender's

office who viewed the line-up, “that's not them, I would know them when I saw them.”

��89 Nev. 366, 369 (1973) Hall v. State��

to the release of the appellant on bail prior to sentencing informed the appellant that he did

not like house burglars and believed that appellant might be a user of narcotics. After

argument by defense counsel and the appellant himself, the trial judge fixed bail but

cautioned the appellant that he was going to receive a prison sentence. Although the trial

ended on October 28, 1971, sentencing was not set until December 14, 1971, and the actual

sentence was not entered until December 21, 1971, which time the appellant was denied

probation and received a term of six (6) years in prison.

The appellant claims (1) that the record contains insufficient evidence to sustain a

conviction; (2) that the trial court erred in failing to grant a mistrial after it was revealed

during the course of the trial that the home of one of the jurors had been burglarized, and that

this fact had been communicated to another juror; (3) that it erred in failing to properly

instruct the jury and, (4) that it erred in making a determination that the appellant would be

sentenced to prison prior to receiving the presentence report or hearing evidence by appellant

or his counsel in mitigation.

1. The appellant contends that because the state's witness, Ronald Fisher, had been

convicted of a felony, his testimony is completely untrustworthy and should not be

considered, and without it there is unsufficient evidence to convict him.

[Headnotes 1-3]

The common law rule which prohibits one who has been convicted of an “infamous

crime” from testifying was abrogated in this state by statute in 1881 (Comp. Laws, 3472).

State v. Roberts, 28 Nev. 350, 82 P. 100 (1905). With certain exceptions every person is

competent to be a witness. NRS 50.015. 2 However, for the purpose of attacking the

credibility of a witness, evidence that he has been convicted of a felony is admissible under

limited circumstances. NRS 50.095. 3 At no place in the record did the appellant ever attack

the credibility of the witness, Fisher, and his credibility cannot be attacked for the first time

on appeal. Furthermore, �� , ��

____________________

2

NRS 50.015: “Every person is competent to be a witness except as otherwise provided in this Title.”

3

NRS 50.095: “1. For the purpose of attacking the credibility of a witness, evidence that he has been

convicted of a crime is admissible but only if the crime was punishable by death or imprisonment in excess of 1

year under the law under which he was convicted.

“2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed

since:

“(a) The date of the release of the witness from confinement; or

��89 Nev. 366, 370 (1973) Hall v. State��

it is not our province on appeal to pass upon the credibility of Fisher. State v. Williams, 67

Nev. 373, 219 P.2d 184 (1950). The weight and value of the testimony of a witness is a

question for the trier of fact to determine. William v. State, 78 Nev. 346, 372 P.2d 462

(1962). Here the jury made its determination against the appellant. There is sufficient direct

evidence in the record beyond Fisher's testimony to support the appellant's conviction.

[Headnotes 4, 5]

2. The fact that juror Zeh was the victim of a burglary committed on the first day of the

trial presents a unique situation. However, that fact alone does not, as a matter of law,

disqualify her as a juror. NRS 16.050; NRS 175.071; NRS 175.121(4). 4 See: United States

ex rel. DeVita v. McCorkle, 133 F.Supp. 169 (DC N.J. 1955); State v. Hirsack, 465 ��3�&

(!@�>;��

____________________

“(b) The expiration of the period of his parole, probation or sentence, whichever is the later date.

“3. Evidence of a conviction is inadmissible under this section if the conviction has been the subject of a

pardon.

“4. Evidence of juvenile adjudications is inadmissible under this section.

“5. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of

the pendency of an appeal is admissible.”

4

NRS 16.050: “1. Challenges for cause may be taken on one or more of the following grounds: (a) A want

of any of the qualifications prescribed by statute to render a person competent as a juror. (b) Consanguinity or

affinity within the third degree to either party. (c) Standing in the relation of debtor and creditor, guardian and

ward, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the

family of either party or a partner, or united in business with either party; or being security on any bond or

obligation for either party. (d) Having served as a juror or been a witness on a previous trial between the same

parties for the same cause of action; or being then a witness therein. (e) Interest on the part of the juror in the

event of the action, or in the main question involved in the action; except the interest of the juror as a member or

citizen of a municipal corporation. (f) Having formed or expressed an unqualified opinion or belief as to the

merits of the action, or the main question involved therein; but the reading of newspaper accounts of the subject

matter before the court shall not disqualify a juror either for bias or opinion. (g) The existence of a state of mind

in the juror evincing enmity against or bias to either party.

“2. A challenge for cause for standing in the relation of debtor and creditor when the party to an action is a

public utility as defined in NRS 704.020 may be allowed only where the circumstances as determined by the

court so warrant.”

NRS 175.071: “If, before the conclusion of the trial, and there being no alternate juror called or available, a

juror dies, or becomes disqualified or unable to perform his duty, the court may duly order him

��89 Nev. 366, 371 (1973) Hall v. State��

S.W.2d 543 (Mo. 1971). Whether or not the incident disqualified her for cause became a

question of fact to be determined by the trial judge. NRS 16.060. 5

The trial judge fully explored juror Zeh's attitude toward the case and concluded that she

was unbiased and that her impartiality was unaffected. His examination did not reveal a state

of mind evincing enmity against the appellant and the trial was allowed to proceed. NRS

16.050(1)(g). Only if her answers on voir dire had disclosed that she was prejudiced and as a

result could not render a fair and impartial verdict would the appellant have been entitled to

have her disqualified.

There is no showing on the record before us of any prejudice on the part of juror Zeh, or

any other juror on the panel. Nor is there any proof of actual bias nor of facts from which to

infer bias. No basis has been shown to support the challenge. The appellant is not entitled to a

new trial. See: People v. Martinez, 23 Cal.Rptr. 897 (1962). Cf. State v. Hirsack, supra; State

v. Baran, 474 P.2d 728 (Utah 1970); State v. Ragsdale, 187 So.2d 427 (La. 1966).

[Headnote 6]

3. Where a jury has been properly instructed on the standards for reasonable doubt, an

additional instruction such as the one proposed by the appellant is confusing and should not

be given. Here the record reveals that the jury was properly instructed on the standards for

reasonable doubt and the appellant does not contend otherwise. The trial court did not

commit error in refusing the proposed instruction. Holland v. United States, 348 U.S. 121

(1954); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970); Vincze v. State, 86 Nev. 547,

548, 472 P.2d 936 (1970).

[Headnote 7]

4. We cannot agree with the appellant's contention that the trial judge failed to follow

statutory requirements, specifically NRS 176.015, NRS 176.135 and NRS 176.145, in

pronouncing sentence. The record does not contain a copy of ��

____________________

to be discharged and a new juror may be sworn and the trial begun anew, or the jury may be discharged and a

new jury then or afterward impaneled.”

NRS 175.121(4): “4. If it appears that the juror has declared any fact relating to the case to his fellow jurors

as of his own knowledge, or that his vote was influenced by such knowledge undisclosed, the judge shall declare

a mistrial.”

5

NRS 16.060: “Challenges for cause shall be tried by the court. The juror challenged and any other person

may be examined as a witness on the trial of the challenge.”

��89 Nev. 366, 372 (1973) Hall v. State��

the presentence investigation nor a transcript of the proceedings in district court at the time

the appellant was sentenced. The appellant relies on Boles v. State, 497 P.2d 449 (Okla.

Cr.App. 1972), where the matter was remanded to the trial court with directions to consider

the defendant's application for a suspended sentence and to grant or deny the same upon

grounds sanctioned by law, however, in that case the appellate court had before it the report

from the department of pardon and parole, and a copy of the trial court's order denying the

suspended sentence “by reason of the nature of the crime charged.”

Although the trial judge's remarks made following the trial were intemperate and ill

advised, there is nothing in this record to indicate that probation was denied because he was

“harsh on house burglars” or “tough as far as burglars go” or “against house burglars” or

because he had a feeling that the appellant was a narcotics user stealing to supply his habit.

On the other hand the record does reveal that the trial judge did say: “[I]f you prove not to be

a user, I'll give that very serious consideration on my sentencing.”

The fact that the trial judge told the appellant “I'm going to sentence you to prison” was

not a presentence pronouncement that he was planning to arbitrarily send the appellant to

prison, but only a statement of his intention to follow the law of this state. A sentence must

first be imposed before its execution can be suspended, and probation granted. NRS 176.015;

NRS 176.033; NRS 176.185.

We cannot surmise why probation was denied. On this record we do not find that the trial

court denied the appellant's application for probation upon grounds not sanctioned by law.



____________

��89 Nev. 372, 372 (1973) Scherer v. State��

JAMES DONALD SCHERER, Appellant, v. THE


No. 7020

September 10, 1973 513 P.2d 1232

Appeal from a conviction in the Eighth Judicial District Court; William P. Compton,

Judge.


Defendant was convicted before the district court of second degree murder, and he

appealed. The Supreme Court, Batjer, J., held that the timely filing of a notice of appeal is

jurisdictional and is an essential prerequisite to the perfection of appeal and that notice of

appeal filed more than nine years after the judgment of conviction was entered was untimely

and appeal had to be dismissed.

Appeal dismissed.


Morgan D. Harris, Public Defender, Clark County, for Appellant.

Robert List, Attorney General, State of Nevada; and Roy A. Woofter, District Attorney,


1. Criminal Law. Timely filing of a notice of appeal from a conviction is jurisdictional and is an essential prerequisite to

the perfection of an appeal.

2. Criminal Law. Jurisdiction over an appeal from a conviction cannot be conferred upon an appellate court by the consent

or the stipulation of the parties or their counsel.

3. Criminal Law. Where defendant at time of his conviction was allowed by statute three months to perfect his appeal,

notice of appeal filed by defendant more than nine years after the entry of the judgment of conviction was

untimely and appeal had to be dismissed. NRS 177.066.

OPINION


On February 1, 1963, the appellant was found guilty, by a jury, of second degree murder,

and on February 15, 1963, he was sentenced to 10 years to life in prison. At that time no

appeal was taken from the conviction. On June 8, 1972, the appellant in pro per filed his

notice of appeal. On the strength of a written stipulation entered into on June 14, 1972,

between a deputy public defender of Clark County, Nevada, who had been appointed to

represent the appellant, and a deputy from the Clark County District Attorney's office, an

attempt has been made to provide jurisdiction for this appeal.

At the time of his conviction, the appellant was allowed, by ��

��


statute, three months to perfect his appeal. NRS 177.100 (repealed, 1967 Stats. of Nev. Vol.

II, p. 1472). 1 Since 1967 the time to perfect an appeal from a conviction in district court has

been limited to 30 days. NRS 177.066. 2 Notice of appeal was filed in this case more than

nine (9) years after the judgment of conviction was entered.

[Headnote 1]

The timely filing of a notice of appeal is jurisdictional and is an essential prerequisite to

the perfection of an appeal. O'Neal v. United States, 264 F.2d 809 (1959); Lewis v. U.S., 278

F.2d 33 (D.C.Cir. 1960); State v. Janiec, 80 A.2d 94 (N.J. 1951). See also Nelson v. Smith,

42 Nev. 302, 176 P. 261 (1918); Pacific Live Stock Co. v. Ellison Ranching Co., 52 Nev.

279, 286 P.120 (1930).

In United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed. 259 (1959), the High

Court held that an appeal from a judgment of conviction must be filed within the time fixed

by the Federal Rules of Criminal Procedure and said: “Every other decision to which we have

been cited, and that we have found, holds that the filing of a notice of appeal within the

10-day period presented by Rule 37(a)(2) is mandatory and jurisdictional.

[Headnote 2]

Furthermore, jurisdiction cannot be conferred upon an appellate court by the consent or

stipulation of the parties or their counsel. Jasper v. Jewles, 50 Nev. 153, 254 P. 698 (1927); In

Re Hanley's Estate, 142 P.2d 423 (Cal. 1943).

[Headnote 3]

This appeal is dismissed without prejudice to any relief that might be available to the

appellant under NRS 177.315 et seq.


____________________

1

NRS 177.100: “An appeal to the supreme court from a judgment or order must be taken within 3 months

after its rendition. An appeal to a district court from a final judgment of a justice's court must be taken within the

time specified in NRS 189.010.”

2

NRS 177.066: “In other cases, an appeal to the supreme court from a judgment or order must be taken

within 30 days after its rendition. An appeal to a district court from a final judgment of a justice's court must be

taken within the time specified in NRS 189.010.”

____________

��89 Nev. 375, 375 (1973) Way v. Hayes��

AUDREY D. WAY, Appellant, v. MATT HAYES; SHELAM, INC., a Corporation;

SHELBY WILLIAMS and SAM DIAMOND, dba SILVER SLIPPER, Respondents.

No. 6917

September 10, 1973 513 P.2d 1222

Appeal from judgment and order denying appellant's motion for judgment n.o.v. or, in the

alternative, for a new trial. Eighth Judicial District Court, Clark County; Michael J. Wendell,

Judge.

Plaintiff brought action against casino and employee thereof to recover damages for

injuries sustained when door of slot machine to her right was opened, hitting plaintiff in the

right hand. The district court entered judgment on verdict for defendants and denied plaintiff's

motion for judgment n.o.v. or for new trial, and the plaintiff appealed. The Supreme Court,

Mowbray, J., held that refusal to allow a courtroom demonstration of operation of slot

machines was not abuse of discretion, that where jury returned verdict for the defendants

without reaching the question of damages, permitting a defense witness to testify, who was

not named as a witness in response to interrogatories, was not prejudicial error, and that there

was substantial evidence to support verdict for defendants.

Affirmed.

Daryl EngeBregson, of Las Vegas, for Appellant.


1. Trial. Admissibility of evidence of test or demonstration depends upon a foundational showing of substantial

similarity between the demonstration conducted and the actual conditions.

2. Appeal and Error; Trial. The decision whether to allow a courtroom demonstration rests largely in the discretion of the trial judge

and his decision will not be overturned on appeal absent a clear showing of an abuse of that discretion.

3. Trial. Refusal to allow courtroom demonstration of operation of slot machines, in action for injuries allegedly

caused by employee of casino opening door of slot machine and hitting plaintiff in hand, because spacing

between the two machines did not simulate the actual positions of the machines at the time of the accident,

was not an abuse of discretion.

��89 Nev. 375, 376 (1973) Way v. Hayes��

4. Appeal and Error. Where the jury returned a verdict for the defendant without reaching the question of damages, permitting

defense witness, who was not named as a witness in response to interrogatories, to testify on the question of

damages was not prejudicial error.

5. Appeal and Error. Where the jury returned a verdict for the defendant without reaching the question of damages, refusal of

trial court to submit special interrogatories on the question of whether plaintiffs retirement from previous

employment was due to alleged injury or other disabilities was not prejudicial error.

6. Negligence. Verdict for defendants, in action by plaintiff who claimed that she was struck on right hand while playing

a slot machine by the door to the slot machine next to her which was opened by employee of casino, was

supported by substantial evidence.

7. Appeal and Error. Assignment of error which could not reasonably be deemed to have affected substantial rights was

disregarded. NRS 178.598.

OPINION


The appellant, Audrey D. Way, plaintiff below, commenced this action against the

respondents to recover damages for injuries to her right hand that occurred when Audrey was

playing a slot machine at the Silver Slipper Casino in Las Vegas. The case was tried before a

jury that found in favor of the respondents and against Audrey. Audrey has appealed from

that verdict and also from an order denying her motion for judgment notwithstanding the

verdict or, in the alternative, for a new trial.

Audrey's appeal is predicated upon several assignments of error, all of which we reject,

and therefore we affirm the judgment below.

1. On the day she was injured, Audrey was playing a slot machine in the Silver Slipper

Casino in Las Vegas. Respondent Matt Hayes, a slot machine mechanic employed by

Respondent Shelam, Inc., was called by a change girl to repair a clogged slot machine located

to the immediate right of the slot machine that Audrey was playing. Audrey's witnesses

testified that Hayes approached the slot machine in a disgusted, irritated manner; that he

jerked open the door of the clogged machine, causing it to hit Audrey's hand.

Hayes testified differently. He stated that he was not irritated; that when he first came on

the scene no one was playing �� #�� 5��

��89 Nev. 375, 377 (1973) Way v. Hayes��

the slot machine next to the one he was repairing; that he opened the door of the clogged

machine a short distance and saw that a Canadian coin was the cause of the trouble. When he

saw the coin, he opened the door another few inches, and it was then that Audrey reached for

the handle of the slot machine to the left and was struck on the right hand by the slot machine

door.

[Headnotes 1-3]

2. Audrey claims that the trial judge committed reversible error in not permitting her to

conduct a courtroom demonstration of the operation of the slot machines. Respondents

objected to the proposed demonstration on the ground that there was insufficient evidence as

to the spacing between the two slot machines to permit an accurate demonstration of their

operation. Notwithstanding the objection, the judge ruled that the demonstration could take

place if the slots were placed on their stands as they were in the casino. Although granted a

continuance to obtain the stands, Audrey was unable to do so, and consequently the judge

refused to permit the demonstration.

Admissibility of evidence of a test or a demonstration depends upon a foundational

showing of substantial similarity between the demonstration conducted and the actual

conditions. The decision whether to allow a courtroom demonstration rests largely in the

discretion of the trial judge, and his decision will not be overturned on appeal absent a clear

showing of an abuse of that discretion. Smith v. State, 87 Nev. 84, 482 P.2d 302 (1971). In

the instant case, the trial judge refused to allow the demonstration because the spacing

condition between the two machines did not simulate the actual positions of the machines at

the time of Audrey's accident. Consequently, the court did not abuse its discretion in

disallowing the demonstration.

[Headnotes 4, 5]

3. Audrey further complains that the trial judge erred in permitting a defense witness to

testify who was not named as a witness in response to interrogatories submitted to the

respondents. Since the witness's testimony was directed solely to the question of damage, no

prejudice could have resulted, because the jury returned a verdict for the

defendants-respondents and never reached the issue of damages. Cf. Schell v. Kullhem, 259

P.2d 861 (Colo. 1953); Crippen v. Pulliam, 380 P.2d 475 (Wash. 1963). For the same reason,

Audrey's additional argument, that the court erred in refusing to submit �� *��+��

��89 Nev. 375, 378 (1973) Way v. Hayes��

special interrogatories relating to whether Audrey's retirement from her previous employment

was due to the alleged injury to her hand or other disabilities, is meritless.

[Headnote 6]

4. Audrey urges that the judge erred in not granting her a new trial or a judgment

notwithstanding the verdict. She claims that, as a matter of law, judgment should have been

rendered in her favor. The evidence concerning respondents' alleged negligence and the

contributory negligence of Audrey were questions of fact for the jury. While there is a

conflict in the evidence as to just what occurred at the time of Audrey's accident, there is

substantial evidence in the record to support the jury's verdict in favor of the respondents, and

it shall not be disturbed on appeal. B & C Enterprises v. Utter, 88 Nev. 433, 498 P.2d 1327

(1972).

[Headnote 7]

The remaining assignment of error, if error at all, cannot reasonably be deemed to have

affected substantial rights, and therefore shall be disregarded. NRS 178.598.



____________

��89 Nev. 378, 378 (1973) Amundsen v. Ohio Brass Co.��

JERRY AMUNDSEN, Appellant, v. THE

OHIO BRASS CO., Respondent.

No. 6907

September 10, 1973 513 P.2d 1234

Appeal from judgment on jury verdict, and from order denying motion for new trial,

Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.

Action for injuries sustained when hydraulic basket manufactured by defendant collapsed

beneath plaintiff allegedly as result of defect in design. The district court rendered judgment

adverse to plaintiff, who appealed. The Supreme Court, Gunderson, J., held that trial court

did not err in refusing instructions regarding implied warranty of fitness for a known purpose

in view of full and proper strict liability instructions and that plaintiff's contention that

evidence established liability ��


of defendant as matter of law was not ground for motion for new trial, in absence of plain

error in record or showing of manifest injustice.

Affirmed.

Foley Brothers, of Las Vegas, for Appellant.

Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.

1. Trial. In action for injuries sustained when hydraulic basket manufactured by defendant sold to plaintiff's

employer and used to lift linemen up to high voltage wires collapsed beneath plaintiff, wherein complaint

stated claims of negligence, strict liability and implied warranty, trial court did not err in refusing

instructions regarding implied warranty of witness for a known purpose in view of full and proper strict

liability instructions.

2. New Trial. Plaintiffs contention that evidence established liability of defendant as matter of law was not ground for

motion for new trial in absence of plain error in record or showing of manifest injustice.

OPINION


Appellant's amended complaint stated claims in negligence, strict liability, and implied

warranty, all based on a alleged defect in design of a hydraulic basket used to lift linemen up

to high-voltage wires, which respondent manufactured and sold to appellant's employer.

Appellant, who seeks damages for injuries sustained when the basket collapsed beneath him,

contends on this appeal that the trial court erred in refusing instructions regarding implied

warranties of fitness for a known purpose. 1 Appellant also contends he was entitled to

judgment as a matter of law.

1. The trial court rejected appellant's implied warranty instructions as “not applicable,”

apparently following our decision in Long v. Flanigan Warehouse Co., 79 Nev. 241, 382 :�&@ �>� "@?�

____________________

1

Particularly, appellant asked this instruction: “Where the seller at the time of the sale has reason to know

any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or

judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such

purpose.”

Other rejected instructions stated how such warranties are proved, and told the jury that any implied warranty

of the basket sold to his employer extended to appellant.


P.2d 399 (1963). In Long, we held implied warranties of the Uniform Sales Act provided no

basis for a nontort claim by a person, like appellant, not in privity with the seller. We refused

to follow several contrary recent cases, saying: “Clarity in our law will not be served by

applying the Uniform Sales Act to parties for whom its provisions were not designed.” 79

Nev. at 247, 382 P.2d at 403. In so doing, we quoted the eminent Dean Prosser concerning

obstacles that exist to imposing liability on implied warranty theories, in cases like those

before us then and now:

“What all of 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 Laocoön 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. 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.” W. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer),

69 Yale L.J. 1099, 1133-34 (1960).

In Long, we declined to consider strict liability theories, tendered for the first time on

appeal, but later we did adopt strict liability in tort for persons injured by defectively

manufactured or designed products, whether they are in privity with the seller or not. Worrell

v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470

P.2d 135 (1970); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).

Appellant does not question that the jury was instructed adequately under the theory of these

later cases, as well as on usual negligence principles, but he urges us to overrule Long and

hold that he was entitled to implied warranty instructions as well.

[Headnote 1]

So far as we can perceive, appellant has tendered no substantial case authority to support

his request that we overrule -��&�� L� �� L� ��*�� ) � ��


Long. 2 He makes no suggestion that the Uniform Commercial Code, which supplanted the

Uniform Sales Act, contains any provision requiring departure from that holding. Moreover,

appellant has made no real effort to explain how his rights could be prejudiced by the absence

of implied warranty instructions, when the jury received full and proper strict liability

instructions.

Thus, appellant has demonstrated neither error nor prejudice in the court's refusal to

instruct regarding implied warranty.

[Headnote 2]

2. Appellant's contention that the evidence established liability as a matter of law was not

presented to the trial court except by motion for a new trial. NRCP 59 does not recognize

such a ground for such a motion, at least unless “there is plain error in the record or if there is

a showing of manifest injustice.” Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837, 841

(1969).

Unlike the situation presented in Price v. Sinnott, in the instant case the verdict does not

strike our minds “at first blush, as manifestly and palpably contrary to the evidence.” 85 Nev.

at 608, 460 P.2d at 842. It is far from clear to us that the evidence established, as a matter of

law, the defective design of respondent's product.

Affirmed.


____________________

2

Appellant urges that Long is “inconsistent” with later cases, particularly Worrell v. Barnes, supra.

In Worrell, this court assumed that a cause of action in strict liability could co-exist with one for breach of

implied warranty; however, in Worrell privity existed between the plaintiff and defendant; hence, Worrell is not

inconsistent with Long.

Appellant also cites Shoshone Coca-Cola v. Dolinski, supra, in which we upheld a judgment entered on the

verdict of a jury, who had been properly instructed regarding strict liability in tort. In Shoshone, the appellate

issue was whether to approve the strict liability doctrine. In Long, the appellate issue was whether to extend a

different doctrine, implied warranty, to persons not in privity with sellers of goods.

Again, appellant cites Justice Traynor's landmark opinion in Greenman v. Yuba Power Products, Inc., 377

P.2d 897 (Cal. 1962). That case seems of little help to appellant; for in recognizing that there should be strict

liability in tort for injuries caused by defectively designed goods, without regard to theories of implied warranty,

Justice Traynor noted that strict tort liability is ordinarily simpler to prove than breach of implied warranty. Id.,

at 901.

Other cited authorities seem equally inapposite.

____________

��89 Nev. 382, 382 (1973) Franklin v. State��

GEORGE E. FRANKLIN, Jr., Appellant, v. THE


No. 7236

September 10, 1973 513 P.2d 1252

Appeal from an order denying a pretrial petition for a writ of habeas corpus. Eighth

Judicial District Court, Clark County; Howard W. Babcock, Judge.

Defendant who had been indicted for crime of the asking of a bribe by an officer petitioned

for writ of habeas corpus challenging probable cause to hold him for trial. The district court

entered an order denying the pretrial writ of habeas corpus and the petitioner appealed. The

Supreme Court, Batjer, J., held, inter alia, that there was no showing of prosecutorial

misconduct before grand jury and that despite the admission of certain tape recordings there

was other evidence of so legally sufficient quality to authorize the return of indictment.

Affirmed.

Gunderson, J., dissented.

Franklin & Bartley, of Las Vegas, for Appellant.

Roy A. Woofter, District Attorney, and Charles E. Thompson, Deputy District Attorney,


1. Habeas Corpus. Indicted defendant who was free from custody upon his own recognizance could utilize remedy of habeas

corpus to challenge probable cause to hold him for trial.

2. Appeal and Error. If appellant fails to present authorities in support of an alleged error Supreme Court will consider

assignment only if error is so unmistakable that it is revealed by casual inspection of record.

3. Grand Jury. In presenting case to grand jury prosecutor and his assistants are authorized to recite and explain law and

to present legal evidence, but they must scrupulously refrain from words or conduct which will invade

province of grand jury or tend to influence jurors in their judgment. NRS 172.135, subd. 1.

4. Grand Jury. To accomplish explanation of law and presentation of evidence before grand jury prosecutor may have

present from time to time such reasonable number of assistants as he deems appropriate.

5. Grand Jury. Where there were more than three assistant district attorneys present and the other two members from

district attorney's staff �� )�� K�� +��


who were present were a secretary and a bailiff, both of whom were requested by grand jury and authorized

by statute to be present, there was no prosecutorial misconduct based on claim that five members of district

attorney's staff were present when evidence was presented to grand jury. NRS 172.135, subd. 1,

172.205, 172.235.

6. Habeas Corpus. Challenge to validity of grand jury proceedings because of alleged illegal introduction of tape recordings

was properly made by motion and not by pretrial habeas corpus proceeding. NRS 174.105, subd. 1,

177.015, subd. 2.

7. Indictment and Information. Legal efficacy of indictment will be sustained if there has been presented to grand jury the slightest

sufficient legal evidence and best in degree even though inadmissible evidence may have also been

adduced. NRS 172.135.

8. Indictment and Information. Grand jury indictment of defendant for crime of asking bribe by a public officer was not rendered invalid

because of the admission of certain tape recordings subsequently suppressed by district court where there

was other evidence presented to grand jury of sufficient legal quality to support indictment. NRS

172.135.

9. Indictment and Information. Inference drawn by grand jury that defendant public officer committed the crime of asking a bribe was

reasonably drawn or deduced from facts presented including testimony that defendant insisted that the

money was not for him but for other unnamed persons. NRS 172.135, subd. 1, 172.155, 172.155, subd.

1, 197.040.

10. Indictment and Information. Grand jury does not determine guilt or innocence but needs only to have before them legally sufficient

evidence to establish probable cause in order to return an indictment.

11. Grand Jury. Accused is entitled to fair but not perfect consideration before grand jury.

OPINION


The appellant, George E. Franklin, Jr., a member of the Las Vegas Board of City

Commissioners, has been indicted and charged with having committed the crime of asking a

bribe by a public officer in violation of NRS 197.040. He now appeals from the denial of his

petition for a writ of habeas corpus challenging probable cause to hold him for trial.

[Headnote 1]

Franklin is free from custody upon his own recognizance. While in that status he may

utilize the remedy of habeas corpus to challenge probable cause to hold him for trial.

Jacobson v. State, 89 Nev. 197, 510 P.2d 856 (1973).


A fair reading of the testimony adduced before the grand jury reveals that Johnny Tocco,

the owner of a bar in Las Vegas, Nevada purchased other property and desired to transfer his

liquor license to the new location. He recognized that he might have some difficulty obtaining

authorization for the transfer from the Las Vegas Board of County Commissioners. A mutual

friend suggested that he contact Commissioner George E. Franklin, Jr., the appellant, and

discuss the entire matter. Tocco contacted Franklin's office and shortly thereafter Franklin

arrived at Tocco's establishment and informed Tocco that there was substantial opposition to

his request; that he was personally prepared to vote for the transfer; that the opponents were

prepared to pay as much as $10,000 to block it, 1 and that for a like sum which he would

deliver to other unnamed persons he could obtain a favorable vote for Tocco's ��)��

____________________

1

Tocco's pertinent testimony before the grand jury about his meetings with Franklin:

“A. Oh, all right. Well, he says, ‘I tell you what,' he says, ‘If you can come up with a like amount,' he says ‘I

believe I can get it on for you.' I says, ‘You mean $10,000?' He says, ‘Yes.'

. . .

“A. Well, he says, ‘If you can come up with the like amount of money,' he says, ‘I can get it on.' And I says

to him, ‘Well, George,' I says, ‘how in the hell can you tell me that if I come up with $10,000 and meet the same

demand that is being put up by the Mirabelli forces that you stated, that you would drop Mirabelli in my favor?' I

says, ‘After all, I'm just a small businessman.'

“I says, “Phil's pretty well known in the town, he's pretty powerful and, I says, ‘You're willing to drop him for

the ten?' He says, ‘That's it. That's what its going to take.' He says, ‘I can get it on.'

“Q. Did he tell you what he meant by, ‘get it on?'

“A. Well, I guess—

“Q. Not guess. Did he tell you?

“A. No, he didn't tell me. Just says he needs $10,000 to do it. But he didn't tell me who he was going to give

it to.”

. . .

“Q. You say, ‘he,' you mean Mr. Franklin?

“A. Mr. Franklin.

“Q. And what did he say then?

“A. Well, I says to him, I says, ‘Now, you know if the bank gives me a loan they'll probably give me the

certified checks.' I said, ‘do you want the certified check?'

. . .

“A. He says, ‘Hell, no,' he says, ‘take the check and give it to one of the tellers and get it cashed, and bring

me $10,000 in one-hundred-dollar bills.'

. . .

“A. Well I says to him, ‘When I bring the money,' I says, ‘Who is going to handle it?' He says, ‘I'm going to

handle it.'

. . .

“A. Well he told me, he says, ‘Now, the money isn't for me.' He


request. Franklin made several visits to Tocco's establishment to determine if Tocco had been

able to raise the $10,000. Tocco was unsuccessful in his efforts. In the meantime Tocco had

reported Franklin's request to a deputy district attorney and the district attorney's office began

an investigation. No money was ever delivered. Franklin apparently became aware of the

district attorney's investigation and reported his version of the affair to the mayor and other

commissioners and later he gave a taped exculpatory statement to members of the district

attorney's staff.

At the grand jury hearing the mayor and all the other members of the commission testified

that they never sought any payment from Tocco through Franklin or otherwise. A bank

official testified concerning Tocco's effort to borrow $10,000 during the time that the

Tocco-Franklin meetings were occurring.

1. Among other contentions, Franklin claims that the district court erred in denying

habeas because of several instances of alleged prosecutorial misconduct:

(1) The matter as presented to the grand jury was entitled “State of Nevada v. George

Franklin;”

(2) The prosecutor delivered to the members of the grand jury copies of the statutes

claimed to have been violated by the appellant; and

(3) Only “true bill” forms of indictment were presented for the grand jury.

____________________

says, ‘I'm getting no part of it.' That he told me. He says, ‘It's got to go to others.' He didn't mention any names

of—

“Q. Did George indicate to you at all how he was going to vote on this at anytime?

“A. Well, he told me, he says, ‘I told you at our first meeting that I would go for you and,' he says, ‘as far as

money is concerned, the money is not for me at all.'

“Q. Did he tell you who it was for?

“A. No, he didn't.

“Q. Would you relate to us again the exact words that were said involving that?

“A. Well, he told me again he was going to take care of others, and he said to me--now, he says, ‘I'm going

to tell you,' he says, ‘I had a luncheon date this afternoon with two of the commissioners at the Sahara Hotel.'

“Q. Did he say who those commissioners were?

“A. I asked him and he says, ‘Yeah,' he says, ‘Coblentz and Thornley.'

“Q. Did he discuss at all any difficulty or problems he might have getting this vote?

“A. Well, he said that one of them was kind of hesitant about going along because he was committed to the

other side.”


[Headnote 2]

The appellant has cited no authorities to support these assignments of error. If an appellant

fails to present authorities in support of a alleged error we will consider the assignment only

if the error is so unmistakable that it is revealed by the casual inspection of the record.

Williams v. State, 88 Nev. 164, 494 P.2d 960 (1972); Carson v. Sheriff, 87 Nev. 357, 487

P.2d 334 (1971). Here a careful inspection of the record, in light of our conception of the

applicable law, reveals no error in the district court's interpretation.

2. The appellant further claims prosecutorial misconduct and error because five members

of the district attorney's staff were present when evidence was presented to the grand jury.

In support of this assignment of error the appellant relies upon In re Opinion of the

Justices, 94 N.E. 852 (Mass. 1911). His reliance is misplaced because the Supreme Judicial

Court of Massachusetts in Commonwealth v. Favulli, 224 N.E.2d 422 (Mass. 1967),

approved the presence of six prosecutors before the grand jury on two occasions, and

specifically found that Opinions of the Justices, supra, was not in point because it dealt with

the presence of persons other than duly appointed prosecutors.

[Headnotes 3-5]

In presenting a case to a grand jury a prosecutor and his assistants are authorized to recite

and explain the law and to present legal evidence (NRS 172.135(1)) but they must

scrupulously refrain from words or conduct that will invade the province of the grand jury or

tend to influence the jurors in their judgment. Commonwealth v. Favulli, supra; State v.

Good, 460 P.2d 662 (Ariz. 1969). To accomplish an explanation of the law and the

presentation of the evidence a prosecutor may have present from time to time such reasonable

number of assistants as he deems appropriate. Commonwealth v. Favulli, supra. Here there

was never more than three assistant district attorneys present. This was not an unreasonable

number. The other two members from the district attorney's staff who were present were a

secretary and a bailiff. Both were specifically requested by the grand jury and authorized by

statute to be present when the grand jury was in session but not deliberating or voting. NRS

172.205; NRS 172.235; Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971). Furthermore

the appellant admits that there was nothing “illegal or impermissible” about their presence.

There is nothing in this record to indicate that the conduct of the district attorney's staff was

contrary to those fundamental principals ��


of liberty and justice which lie at the base of all our civil and political institutions. (Palko v.

Connecticut, 302 U.S. 319 (1937).) There was no violation of due process. Cf. State v. Joao,

491 P.2d 1089 (Haw. 1971).

[Headnote 6]

3. Franklin contended before the district court that the two magnetic tape recordings

which were played to the grand jury were illegally introduced into evidence and that they so

infected the entire record that dismissal of the indictment was mandatory. Such a challenge to

the validity of the grand jury proceedings is properly made by motion (NRS 173.105(1)) and

not by pretrial habeas corpus proceedings. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969);

Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971). Nevertheless, the district court

suppressed the magnetic tape recording of the telephone conversation between Franklin and

Tocco and held admissible the magnetic tape recording of Franklin's exculpatory statement to

members of the district attorney's staff. No cross appeal has been filed to question the

propriety of the challenge to the grand jury proceedings through a petition for habeas corpus.

See NRS 177.015(2).

It is difficult for us to understand why the prosecution would jeopardize the record in this

case by introducing the two magnetic tape recordings. We will consider them only to

determine whether their introduction before the grand jury could have poisoned the entire

record requiring dismissal of the indictment.

[Headnotes 7, 8]

Here the other evidence presented to the grand jury is of sufficient legal quality to support

the indictment and we do not pause to decide the validity of the material contained in the

magnetic tape recordings because the legal efficacy of an indictment will be sustained if there

has been presented to the grand jury the slightest sufficient legal evidence and best in degree

even though inadmissible evidence may also have been adduced contrary to NRS 172.135.

Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968). In State v. Logan, 1 Nev. 509 (1865),

this Court said: “That a grand jury should receive none but legal proof, is an old and

well-established rule, but that the admission of evidence not strictly legal will authorize a

setting aside of a indictment, is a proposition which seems to have no authority to sanction it,

and, if adopted, would only be a impediment to the execution of criminal justice, . . . but

where there is the slightest legal evidence, the court cannot �) �� 2


inquire into its sufficiency, or set it aside, because some illegal evidence was received with

it.”

A number of other jurisdictions adhere to a similar rule. See Coppedge v. United States,

311 F.2d 128 (D.C.Cir. 1962); United States v. John Doe, 455 F.2d 1270 (1st Cir. 1972);

People v. Freudenberg, 263 P.2d 875 (Cal.App. 1953); People v. Edwards, 249 N.Y.S.2d 325

(Orleans County Ct. 1964); Silbert v. State, 280 A.2d 55 (Md.App. 1971); Wickline v. Alvis,

144 N.E.2d 207 (Ohio App. 1957); State v. McDonald, 361 P.2d 1001 (Ore. 1962); Burton v.

State, 377 S.W.2d 900 (Tenn. 1964).

[Headnote 9]

The only meritorious question before us is whether the district court erred in holding that

the inference drawn by the grand jury that the appellant committed the crime of asking a bribe

was reasonably drawn or deduced from the facts presented.

Tocco testified that Franklin insisted that the $10,000 was not for him, but for the others,

and that he did not name the “others”. The mayor and other commissioners all testified that

they had never solicited any bribe from Tocco through Franklin or otherwise. The jurors

could have reasonably inferred that the “others” were other commissioners who would

through their vote control the transfer of Tocco's liquor license and if the other

commissioners were not to receive the $10,000, then Franklin intended to keep the money for

himself. Cf. Ex Parte Kline, 71 Nev. 124, 282 P.2d 367 (1955).

Examination of the record convinces us that the state sufficiently connected the appellant

to the crime and that the district court was justified in denying his petition.

[Headnote 10]

The quality and persuasive force of evidence necessary to support an indictment are

expressed in NRS 172.135(1) and NRS 172.155. Cf. State v. Eddington, 83 Nev. 359, 432

P.2d 87 (1967). A grand jury “ought to find an indictment when all the evidence before them,

taken together establishes probable cause to believe that an offense has been committed and

that the defendant has committed it.” NRS 172.155(1). See State v. von Brincken, 86 Nev.

769, 476 P.2d 733 (1970). The grand jury does not determine guilt or innocence, but needs

only to have before them legally sufficient evidence to establish probable cause. Kinsey v.

Sheriff, 87 Nev. 361, 487 P.2d 340 (1971).


[Headnote 11]

The district court has laboriously and meticulously considered and dealt with every facet

of this case. In Lutwak v. United States, 344 U.S. 604 (1952), the High Court said: “A

defendant is entitled to a fair trial but not a perfect one.” An accused is entitled to fair but not

perfect consideration before the grand jury. Here the appellant received fair consideration. We

find no error and affirm its order.

Thompson, C. J., and Mowbray, J., concur.


The thin requirements of probable cause to bind an accused over for trial have troubled

me, yet because this court has often reaffirmed those simple standards it seems fruitless to

disagree. Nevertheless, I am constrained to observe that a man's reputation was once so

respected that the devices of the preliminary hearing and grand jury were instituted to give

protection against weak or groundless accusations. Proof positive was necessary for an

accusation to be sufficiently strong to bring the accused to trial on the premise that a man

should not be put to shame or the expense of defending himself needlessly.

In this case the accusation consists practically of bar owner Tocco's word against that of a

public official. The $10,000 was not borrowed or otherwise obtained by Tocco, no sums were

paid to anybody at anytime before the application was denied. Of the parade of witnesses only

one bore directly on the accusation and that was the testimony of an admitted parole jumper

from a foreign state who “happened” to be buying a drink in the bar and said he overheard a

conversation between people he did not know. Furthermore, he was a stranger in the

community.

The past decisions of this court that have approved such low quality evidence solely

compels my concurrence.

Gunderson, J., dissenting:

Perhaps with the highest motives, the District Attorney's staff placed before the Grand Jury

a mass of pseudo evidence, obscuring that the case against Commissioner Franklin rests on

the credibility of bar owner John Tocco and fugitive convict James Kronke. It was within the

Grand Jury's province to determine their testimony was not credible, and therefore not

probable cause to prosecute Mr. Franklin. State v. Fuchs, ='�$��"@��"'


78 Nev. 63, 68, 368 P.2d 869, 871 (1962); In re Oxley and Mulvaney 38 Nev. 379, 385, 149

P. 992, 994 (1915); Ex Parte Wm. Willoughby, 14 Nev. 451, 452 (1880). And the Grand Jury

might well have so decided, if it had been permitted to evaluate the testimony of Tocco and

Kronke on its own merits, without illusory “corroboration.”

The majority opinion omits to discuss this problem, which I consider the most disturbing

aspect of the case before us. Thus, I have no idea how, if at all, the majority would justify

“witnesses” like Lt. James Smith, of the Las Vegas Police Department. His testimony is that

he got “involved in this controversy” on June 20, when he was “contacted by Mr. Bruce

Greenhalgh, who is the Chief Investigator for the Attorney General's Office.” Although Smith

did not state explicitly what Greenhalgh said, that was indicated by Smith's testimony

concerning a meeting later that day with Greenhalgh, Attorney General List, and Chief

Deputy Attorney General Gary Logan, in Logan's Las Vegas office. 1 By this testimony, the

District Attorney's staff evidently sought to convince the Grand Jury that the Attorney

General himself as well as his top assistants took Tocco's accusation seriously, and that

therefore the Grand Jury should also. From Smith's only other testimony, concerning a visit

Commissioner Hank Thornley made to Frankie's Bar, the District Attorney's staff apparently

wished the Grand Jury to draw the highly speculative inference that something sinister was

indeed transpiring concerning bars on Charleston Boulevard, in which Mr. Franklin, as a

member of the City Commission, was probably implicated.

____________________

1

Smith testified that he tried, unsuccessfully, “to acquire $10,000 in counterfeit money from the Secret

Service for Mr. Greenhalgh to use as bait money, and I brought with me a transmitter and receiver, equipment to

wire a man.” He met Mr. Greenhalgh, Attorney General List, and Chief Deputy Attorney General Gary Logan in

the latter's Las Vegas office, and sat there “while they discussed the situation, and Mr. Tocco showed up,”

whereupon Tocco supposedly “related the situation.” Finally, “[a]s a result of events that happened, the Attorney

General elected to call the Clark County District Attorney's Office, and once their investigation was commenced

there was no need for me and I left.”

Smith then went on to testify that the following day, about 9:05 A.M., he “was going out West Charleston to

make a right-hand turn on Rancho Road to go out Tonopah Highway.” By chance, Smith said, he saw

Commissioner Hank Thornley entering Frankie's Bar on West Charleston. (Former City Commissioner Phil

Mirabelli, who opposes the transfer of Tocco's liquor license, has an interest in Frankie's.) About 40 minutes

later, again by chance, Smith said he “saw Mr. Thornley leaving” shortly before a City Commission meeting that

was scheduled for 10:00 A.M.


To take other examples, Attorney General List, Rex Bell, and Gary Logan also testified

about their investigatory efforts, which so far as I can see produced no evidence whatever

against Mr. Franklin. Their testimony, like that of Lt. Smith, really showed nothing except

that Tocco had accused Franklin and that List and others took him seriously.

Deputy District Attorney Leon Simon, who represented the District Attorney at oral

argument before this court, acknowledged that such testimony would not be admissible as

part of the State's case in chief. Another deputy, who appeared with Mr. Simon, seemed to

believe that anything said or done outside a defendant's presence is proper evidence, except

that a witness may not recite explicitly what another person said. Of course, the latter deputy's

notion conflicts with the hearsay rule as understood since Wright v. Tatham, 112 Eng. Rep.

488 (1837). See also: J. Ball, Conduct as Hearsay, 41 L.A. Bar Bul. 558 (1965-66).

Moreover, whatever may be the status of Wright v. Tatham's doctrine in Nevada (consider

NRS 51.035-45), I trust my brethren agree that irrelevancy remains a ground for excluding

testimony concerning unproductive police activity. If we permit prosecutors to present matter

that remote from the central issues in criminal cases, the state will need to quadruple its

judicial forces.

This is not a case involving a negligible amount of improper evidentiary matter,

inadvertently placed before the Grand Jury. (If it were, I would view the matter as does my

brother Zenoff.) Here, to assure an indictment the Grand Jury might otherwise have refused,

the District Attorney's staff called a number of witnesses whose testimony was either largely

or totally inadmissible, and necessarily prejudicial. In so doing, I feel, the prosecution

invaded the province of the Grand Jury. Hence, I would grant appellant's petition, and require

the District Attorney's staff to resubmit the case correctly, either to a new Grand Jury or to a

magistrate. As the Supreme Court of Hawaii has said:

“We cannot second guess the grand jury by assuming that it would have returned an

indictment against [Mr. Franklin] even if the character of the proceedings had been other than

what it was.” State v. Joao, 491 P.2d 1089, 1091 (Hawaii 1971).

____________

��89 Nev. 392, 392 (1973) Clark v. State��

TOMMY CLARK, Appellant, v. THE STATE


No. 6959

September 10, 1973 513 P.2d 1224

Appeal from judgment of conviction and sentence, Eighth Judicial District, Clark County;

Clarence Sundean, Judge.

Defendant was convicted before the district court of second degree murder and he

appealed. The Supreme Court held that review of defendant's contention concerning

prosecutor's attempted impeachment of defense witness by interrogation concerning prior

misdemeanor conviction was precluded where defendant had failed to move for mistrial,

admonishment or special instruction concerning prosecutor's questioning of the witness.

Affirmed.

Morgan Harris, Public Defender, and Brian L. Greenspun, Deputy Public Defender, Clark




1. Criminal Law. Generally, failure to move to strike, move for mistrial, assign misconduct or request an instruction will

preclude appellate consideration of contention.

2. Criminal Law. Review of contention concerning prosecutor's attempted interrogation of defense witness concerning

prior misdemeanor conviction was precluded where defendant had failed to move for mistrial,

admonishment or special instruction to jury concerning prosecutor's questioning of the witness. NRS

200.010.

OPINION

Per Curiam:

Convicted of second degree murder (NRS 200.010) and sentenced to a 10-year prison

term, appellant asks us to reverse because of (1) insufficient evidence to sustain the

conviction and, (2) prosecutorial misconduct.

We have examined the record and find sufficient evidence to sustain the jury verdict. See

Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).

��89 Nev. 392, 393 (1973) Clark v. State��

The prosecutor attempted to impeach Charles Murrell, a witness for the defense, by

interrogating him about a prior misdemeanor conviction. Defense counsel objected to that

question and the trial judge sustained the objection. The appellant made no move for a

mistrial, nor did he request to have the jury admonished, nor did he request any special

instruction to the jury when the case was submitted.

[Headnote 1]

As a general rule, the failure to move to strike, move for a mistrial, assign misconduct or

request an instruction, will preclude appellate consideration. State v. Fouquette, 67 Nev. 505,

221 P.2d 404 (1950). See Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961); Kelley v. State, 76

Nev. 65, 348 P.2d 966 (1960); O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); State v.

Boyle, 49 Nev. 386, 248 P. 48 (1926); State v. Moore, 48 Nev. 405, 233 P. 523 (1925). Cf.

Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Hardison v. State, 84 Nev. 125, 437

P.2d 868 (1968); Shamberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); and Mathis v. State,

82 Nev. 402, 419 P.2d 775 (1966). See also, Baker v. State, supra.

[Headnote 2]

Since appellant's contentions are grounded upon a statutory prohibition and not upon a

constitutional question, and it is apparent from the record that the defense was conducted with

a complete understanding of the charge and without any prejudice to any substantive rights of

the appellant, we reject this assignment of error because appellant failed to move for a

mistrial, or for an admonishment or special instruction to the jury concerning the prosecutor's

questioning of the witness Charles Murrell.

Affirmed.

____________

��89 Nev. 393, 393 (1973) Walton v. State��

ALBERT HAL WALTON, Appellant, v. THE


No. 6699

September 12, 1973 513 P.2d 642


Clark County; Joseph S. Pavlikowski, Judge.

Affirmed.

��89 Nev. 393, 394 (1973) Walton v. State��

Morgan Harris, Public Defender, and Thomas D. Beatty, Deputy Public Defender, Clark



Charles L. Garner, Chief Deputy for Appeals, Clark County, for Respondent.

OPINION

Per Curiam:

A jury found appellant guilty of two counts of robbery; the court imposed concurrent

eight-year sentences; this appeal follows. In the record, we find no error affecting substantial

rights of the accused. NRS 177.255.

Affirmed.

____________

��89 Nev. 394, 394 (1973) L. V. Police Protective Ass'n v. City of Las Vegas��

LAS VEGAS POLICE PROTECTIVE ASSOCIATION, a Nevada Corporation, Appellant, v.

THE CITY OF LAS VEGAS, COUNTY OF CLARK, STATE OF NEVADA, and its Board

of City Commissioners Consisting of ALEXANDER COBLENTZ, M.D., JAMES J.

COREY, WESLEY G. HOWERY, HANK THORNLEY and MAYOR ORAN K.

GRAGSON, Respondents.

No. 6872

September 12, 1973 513 P.2d 1231

Appeal from an order for summary judgment and judgment, Eighth Judicial District Court,


Negotiating representative for police officers brought action against city and its board of

commissioners seeking retroactive pay raise for patrolmen. The district court granted

summary judgment in favor of defendants, and plaintiff appealed. The Supreme Court held

that title of ordinance is not to be interpreted to include a subject not expressed in its body;

and that ordinance providing unambiguously in its body that firefighters were to receive a

minimum pay raise of $144 per month but in any event were to receive a monthly wage equal

to that of a police patrolman did not mandate or sanction a pay raise for police patrolmen.

Affirmed.

[Rehearing denied October 25, 1973] 7��3� �� -��G��*��


Edward Weinstein, of Las Vegas, for Appellant.

Earl P. Gripentrog, City Attorney, and R. Ian Ross, Assistant City Attorney, Las Vegas,

for Respondents.

1. Municipal Corporations. The title of an ordinance does not control its meaning unless title must be read to clear up an ambiguity in

the body and, in any event, the title is not to be interpreted in a way that would enlarge the scope of the

ordinance to include a subject not expressed in its body.

2. Municipal Corporations. Ordinance providing in its body that all firefighters were to receive retroactively a minimum pay raise of

$144 per month and in any event were to receive a monthly wage equal to that of a police patrolman could

not be read to mandate or sanction a pay raise for police patrolmen, despite title reciting that ordinance

provided “equality of compensation of firefighters and patrolmen.”

OPINION

Per Curiam:

On November 5, 1968, a majority of the voters of the City of Las Vegas, Nevada, through

initiative process enacted an ordinance 1 increasing the monthly wage of firefighters,

retroactive to July 1, 1968, by not less than $144.00. The ordinance further provided, in any

event firefighters were not to be paid less than police patrolmen. In City of Las Vegas v.

Ackerman, 85 Nev. 493, 457 P.2d 525 (1969), this court not only found the ordinance to be

constitutionally sound, but that the electorate of Las Vegas had the power to enact the

ordinance in its present form.

On August 8, 1969, the Board of City Commissioners of Las Vegas denied a retroactive

pay raise to police patrolmen, and on May 4, 1970, the appellant, as the negotiating

representative for the police officers of the City of Las Vegas, filed its suit seeking such

retroactive pay. Both parties moved for summary judgment (NRCP 56) and on February 3,

1972, ��

____________________

1

“INITIATIVE PETITION—AN ORDINANCE PROVIDING FOR A WAGE INCREASE FOR

FIRE-FIGHTERS OF THE CITY OF LAS VEGAS AND EQUALITY OF COMPENSATION OF

FIREFIGHTERS AND PATROLMEN.

“The People of the City of Las Vegas, County of Clark, State of Nevada, do ordain that retroactive to the 1st

day of July, 1968, the monthly wage of firefighters shall be increased by not less than $144.00.

“And further Ordain that in all cases firefighters shall be compensated at a monthly rate not less than that

provided in the case of police patrolmen.”


summary judgment was granted in favor of the respondents and denied to the appellant.

The appellant contends as a matter of law that police patrolmen in the City of Las Vegas

are entitled to a retroactive increase in pay equal to that paid to firefighters and that the

district court erred in denying that relief. The appellant has misinterpreted the clear meaning

of the initiative ordinance. The body of the ordinance is not ambiguous. From July 1, 1968 all

firefighters were to receive a minimum pay raise of $144.00 per month, but in any event they

were to receive a monthly wage equal to that of a police patrolman.

[Headnotes 1, 2]

The title of an ordinance does not control its meaning unless it must be read to clear up an

ambiguity in the body. In any event, the title is not to be interpreted in a way that would

enlarge the scope of the ordinance to include a subject not expressed in its body.

Commonwealth v. Flax, 156 N.E. 19 (Mass. 1927); City of Pikeville v. Stratton, 78 S.W.2d

12 (Ky. 1935); State v. City of Lincoln, 162 N.W. 138 (Neb. 1917). Cf. City of Cleveland v.

Flegman, 170 N.E.2d 274 (Ohio App. 1960); Continental Oil Co. v. City of Santa Fe, 177 P.

742 (N.M. 1918); 6 McQuillin Mun. Corp. (3rd Ed.) § 20.59 at page 157. The intent of the

electorate of the City of Las Vegas gathered from the entire ordinance including the title was

to raise the pay of their firefighters. It cannot be read to mandate or sanction a pay raise for

the police patrolmen. See Carson City v. Red Arrow Garage, 47 Nev. 473, 225 P. 487 (1924).

The order and judgment of the district court is affirmed.

____________

��89 Nev. 396, 396 (1973) Glenny v. Warden��

HOYT GLENNY, Appellant, v. WARDEN,


No. 7471

September 12, 1973 514 P.2d 1

Appeal from order denying post-conviction petition for writ of habeas corpus, First

Judicial District Court, Carson City; Frank B. Gregory, Judge.

The Supreme Court held that in absence of indication that guilty plea was either

involuntary or made without assistance �� 5��

��89 Nev. 396, 397 (1973) Glenny v. Warden��

of counsel, collateral attack on conviction was precluded; any errors in custodial interrogation

or fingerprinting were superseded by plea.

Affirmed.

Hoyt Glenny, in Proper Person.


Carson City, for Respondent.

Criminal Law.

In absence of showing that guilty plea to charge of ex-felon in possession of a firearm was either

involuntary or made without assistance of counsel, collateral attack on conviction was precluded; any

errors in custodial interrogation and fingerprinting were superseded by the plea. NRS 202.360.

OPINION

Per Curiam:

The appellant pleaded guilty to a charge of ex-felon in possession of a firearm, a violation

of NRS 202.360. On this appeal from the denial of a post-conviction petition for a writ of

habeas corpus, he challenges his custodial interrogation, fingerprinting and the

constitutionality of NRS 202.360.

We have chosen not to appoint counsel in this proper person appeal or require any briefing

of the issues raised as the appeal is without merit.

Since the appellant pleaded guilty to the charge and there is no indication in the record that

the plea was either involuntary or made without assistance of counsel, collateral attack of the

conviction is precluded. Any errors are superseded by the plea of guilty. Hall v. Warden, 83

Nev. 446, 434 P.2d 425 (1967); Powell v. Sheriff, 85 Nev. 684, 462 P.2d 756 (1969); Mathis

v. Warden, 86 Nev. 439, 471 P.2d 233 (1970).

We have previously considered and rejected a challenge to the constitutionality of NRS

202.360. Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968).


____________

��89 Nev. 398, 398 (1973) American Cas. Co. v. Propane Sales & Serv.��

AMERICAN CASUALTY CO., Appellant, v. PROPANE

SALES & SERVICE, INC., Respondent.

No. 6477

September 14, 1973 513 P.2d 1226

Appeal from a judgment entered upon a jury verdict for the defendant; Eighth Judicial

District Court, Clark County; Clarence Sundean, Judge.

Insurer, as subrogee, brought action against propane gas supplier to recover amounts paid

to its insured for fire loss allegedly caused by supplier's negligence. The district court

rendered judgment in favor of the supplier and the insurer appealed. The Supreme Court,

Gunderson, J., held that trial court's refusal to instruct as requested by insurer that

establishing the specific etiological agent of ignition of the fire was not part of insurer's

burden of proof left jury to guess from general “stock” instructions as to what insurer was

required to prove in order to recover and was improper.

Reversed and remanded for new trial.

Thompson, C. J., and Mowbray, J., dissented.


Rose, Pico & Norwood, Ltd., of Las Vegas, for Respondent.

1. Gas.

Cause of ignition of fire allegedly caused by negligence of propane gas supplier while refilling propane

gas tank was immaterial to right of insurer of gas buyer to recover for amounts paid to buyer for fire loss if

supplier's negligence was the proximate cause of the fire.

2. Trial. Party is entitled to have specific charges given upon law applicable to each of the hypotheses or

combinations of facts which the jury, from the evidence, might legitimately find.

3. Gas.

In insurer's action, as subrogee, to recover amounts paid to its insured for fire loss allegedly caused by

negligence of propane gas supplier while refilling propane gas tank, refusal of trial court to instruct that

establishing the specific etiological agent of ignition was not part of insurer's burden of proof left jury to

guess from general “stock” instructions as to what insurer was required to prove in order to recover and

was improper.


4. Appeal and Error. Where requested instruction, though proper, is not essential to jury's understanding of case, rejecting the

instruction is harmless error at most.

OPINION


American Casualty Co., as subrogee to the rights of its insured, Wells-Stewart

Construction Co., brought this action against Propane Sales & Service, Inc., to recover money

paid to Wells-Stewart for a fire loss. American Casualty contended Propane Sales negligently

caused the fire while refilling a propane gas tank at Wells-Stewart's asphalt plant. After a

trial, the jury returned a general verdict for Propane Sales, and American Casualty has

appealed the judgment entered on that verdict. One error, particularly, forces us to remand

this case for a new trial, at which other rulings assigned as error will not necessarily recur.

Hence, on this appeal, we consider only the trial court's error in rejecting the following

specific instruction concerning appellant's burden of proof:

“In an action for injury resulting from an escape or explosion of gas, the burden of proof

rests on plaintiff to prove the facts constituting his cause of action. Hence plaintiff must prove

that the cause of the injury was escaping gas, that it escaped through the negligence of the

company, that it accumulated in the place where the injury occurred, and that defendant's

negligence proximately caused the damage. It is not necessary, however, for plaintiff to show

how the gas became ignited.” (Emphasis added.)

[Headnote 1]

The refused instruction correctly stated the law. Bubrick v. Northern Illinois Gas Co., 264

N.E.2d 560 (Ill.App. 1970); Marshall v. Co-operative Oil Co. of Olmsted County, 169

N.W.2d 395 (Minn. 1969); Great American Insurance Co. v. Modern Gas Co., 101 S.E.2d

389 (1958); Chattanooga Gas Co. v. Underwood, 270 S.W.2d 652 (Ct.App.Tenn. 1954). The

cause of ignition was immaterial if respondent's negligence was a proximate cause of the fire.

Ehler v. Portland Gas & Coke Company, 352 P.2d 1102 (Ore. 1960); McClure v. Hoopeston

Gas & Electric Co., 135 N.E. 43 (Ill. 1922); Moore v. Lanier, 42 So. 462 (Fla. 1906);

Coffeyville Mining & Gas Co. v. Carter, 70 P. 635 (Kan. 1902). As the court �� -��+�- ��O�:��


said in Luengene v. Consumers' Light, Heat & Power Co., 122 P. 1032 (Kan. 1912): “To hold

that a man . . . must, when injured by such an explosion, prove what intervening hand or

agency caused the spark is unreasonable, and in many cases would be impossible.” Id. at

1034.

[Headnote 2]

Of course, a party is “entitled to have specific charges upon the law applicable to each of

the hypotheses or combinations of facts which the jury, from the evidence, might legitimately

find.” Dixon v. Ahern, 19 Nev. 422, 429, 14 P. 598, 601 (1887). This, we believe, is not only

the law in Nevada, but throughout the United States. All authorities we have examined hold

that general, abstract (“stock”) statements of the law are not sufficient if proper request for a

specific instruction on some important point has been duly proffered to the court. 1

For example, in Beck v. Haley, 239 A.2d 699 (Del. 1968), the Delaware Supreme Court

held it reversible error to submit a rear-end accident case on general instructions concerning

contributory negligence, when the evidence rendered appropriate a specific charge concerning

an overtaking motorist's collision with a overtaken motorist. “It is the duty of trial Courts to

submit all the issues, both the cause of action and the defense, affirmatively to the jury, and

with such application of the law to the evidence as will enable the jury intelligently to

perform its duty.” Id. at 702.

[Headnote 3]

Again, in Stanich v. Western Union Tel. Co., 153 S.W.2d 54 (Mo. 1941), the Missouri

Supreme Court said that submitting a case on nothing but general, abstract legal propositions

“would give the jury a roving commission as to the facts and permit them to pass upon a

question of law according to any theory they could construct or evolve in their own minds.”

Id. at 58. As we see it, this is just the problem that existed in the instant case, when the trial

court refused to instruct the �� +��

____________________

1

See, for example: Investment Properties of Asheville, Inc. v. Norburn, 188 S.E.2d 342 (N.C. 1972); Doser

v. Interstate Power Company, 173 N.W.2d 556 (Iowa 1970); Welch v. Sheley, 443 S.W.2d 110 (Mo. 1969);

Pacific Insurance Company of New York v. Frank, 452 P.2d 794 (Okl. 1969); Menchaca v. Helms Bakeries,

Inc., 439 P.2d 903 (Cal. 1968); Hester v. Watson, 448 P.2d 320 (Wash. 1968); Beck v. Haley, 239 A.2d 699

(Del. 1968); Endermuehle v. Smith, 372 S.W.2d 464 (Mo. 1963); Kuehn v. Jenkins, 100 N.W.2d 610 (Iowa

1960); Law v. Hemmingsen, 89 N.W.2d 386 (Iowa 1958); Bourque v. Strusa, 25 A.2d 127 (N.H. 1942); Lewis

v. Watson, 47 S.E.2d 484 (N.C. 1948); Stanich v. Western Union Tel. Co., 153 S.W.2d 54 (Mo. 1941); Burke v.

Zwick, 20 N.E.2d 912 (Ill.App. 1939).


jury that establishing the specific etiological agent of ignition was not part of appellant's

burden of proof. The court left the jury to guess from general “stock” instructions what a

plaintiff must prove to recover in the rather unusual context of a gas explosion case.

Obviously, the rejected instruction was very important to the appellant; for without it, the jury

could easily suppose, incorrectly, that appellant had not proved its case because it had not

proved the exact cause of ignition. Clearly, this was contrary to the trial court's duty “to

explain the law of the case, to point out the essentials to be proved on the one side or the

other, and to bring into view the relations of the particular evidence adduced to the particular

issues involved.” Lewis v. Watson, 47 S.W.2d 484, 486 (N.C. 1948).

[Headnote 4]

In some instances a requested instruction, although proper, will not be essential to the

jury's understanding of the case. Then, rejecting it would be at most harmless error. However,

to us, that seems not to be the situation here, and without disregarding concepts central to the

jury system we cannot hold that a trial court, as a matter of general practice, need only give

“commonly used” or “stock” instructions. If anything in our prior decisions can be read to

support such a view, we expressly disapprove it.


Batjer and Zenoff, JJ., concur.

Thompson, C. J., with whom Mowbray, J., agrees, dissenting:

Although we agree with the majority that the specific instruction offered by the appellant

and refused by the trial court could properly have been given, we do not view such refusal as

error requiring another trial. Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733 (1963); Prell

Hotel Corp. v. Antonacci, 86 Nev. 390, 392, 469 P.2d 399 (1970); Wood v. Southern Pacific

Co., 88 Nev. 527, 501 P.2d 652 (1972). The case was not particularly complicated. The jury

was instructed as to the meaning of negligence and ordinary care, the duty owed by the owner

of premises, and that propane gas is a dangerous substance to be handled with care and

caution commensurate with its dangerous character. We do not believe that the requested

instruction truly was essential to the jury's understanding of the case and, therefore, would

affirm.

____________

��89 Nev. 402, 402 (1973) Elliott v. Chrysler Motor Corp.��

JOSH ELLIOTT, ROBERT D. ELLIOTT, and LEONARD T. MASON, Appellants, v.

CHRYSLER MOTORS CORPORATION, WALTER EPPRECHT, Individually and as

President of LAS VEGAS DODGE, INC., Respondents.

No. 7148

September 26, 1973 514 P.2d 207

Appeal from summary judgment for defendants; Eighth Judicial District Court, Clark

County; James D. Santini, Judge.

Suit was brought for injunctive relief and damages, based on asserted oral agreement for

automobile franchise. The district court entered summary judgment for defendants, and

plaintiffs appealed. The Supreme Court held that, assuming existence of such oral agreement,

which according to plaintiffs' understanding was not to be performed within one year, failure

to comply with statute of frauds would void it as to defendant automobile manufacturer.

Affirmed.


Lionel Sawyer Collins & Wartman, and Robert M. Buckalew, of Las Vegas, for

Respondent Chrysler Motors Corporation.

Dickerson, Miles & Pico, and A. Loring Primeaux, of Las Vegas, for Respondents Walter

Epprecht and Las Vegas Dodge, Inc.

Frauds, Statute of.

Assuming the existence of oral agreement with automobile manufacturer for an automobile franchise

not to be performed within one year of the making thereof, failure to comply with the statute of frauds

would void it as to the automobile manufacturer. NRS 111.220, subd. 1.

OPINION

Per Curiam:

This is an appeal from a summary judgment for the defendants in a suit for injunctive

relief and damages. The plaintiffs assert an oral agreement for an automobile franchise with

Chrysler Motors Corporation which, according to the plaintiffs' understanding, was not to be

performed within one year from ��

��89 Nev. 402, 403 (1973) Elliott v. Chrysler Motor Corp.��

the making thereof. Assuming the existence of such an oral agreement, the failure to comply

with the statute of frauds would void it as to the defendant Chrysler Motors Corporation.

NRS 111.220(1); Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047 (1941); Nehls

v. Stock Farming Co., 43 Nev. 253, 184 P. 212, 185 P. 563 (1919); cf. Harmon v. Tanner

Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963). Moreover, since the claims for relief asserted

by the plaintiffs against the defendants Epprecht and Las Vegas Dodge, Inc., presuppose an

enforceable agreement between the plaintiffs and Chrysler Motors Corporation, they must fail

as well.

Affirmed.

____________

��89 Nev. 403, 403 (1973) Cardinal v. Zonneveld��

RALPH CARDINAL, Appellant, v. JACK T.

ZONNEVELD, Respondent.

No. 6984

September 27, 1973 514 P.2d 204

Appeal from jury verdict and judgment for defendant; Second Judicial District Court,

Washoe County; John W. Barrett, Judge.

Action was brought for personal injuries sustained in an intersection collision. The district

court entered judgment on verdict in favor of defendant, and plaintiff appealed. The Supreme

Court, Thompson, C. J., held that failure to strictly comply with rule as to service of notice of

petition to perpetuate testimony was at most harmless error; and that, in case in which issue

was which driver ran red light, exclusion of opinion of plaintiff's expert as to speed of

plaintiff's driver was not shown to be prejudicial.

Affirmed.

Breen, Young, Whitehead & Hoy and David R. Belding, of Reno, for Appellant.

Vargas, Bartlett & Dixon and J. Rayner Kjeldsen, of Reno, for Respondent.

1. Depositions. Purpose of rule providing for perpetuation of testimony is to provide an ancillary proceeding to prevent a

failure of justice by ��


preserving testimony which otherwise would be lost before the matter to which it relates is ripe for judicial

determination. NRCP 27(a)(2).

2. Depositions. Use of incorrect first name of expected adverse party, in notice of petition for perpetuation of testimony,

was insignificant in context of case in which notice was served on wife of said adverse party at the same

address, though not on said adverse party. NRCP 4, 27.

3. Appeal and Error; Depositions. Where both husband and wife were expected adverse parties, copy of notice and petition for perpetuation

of testimony should have been served upon husband as well as wife, or an additional copy thereof left for

him with his wife, but failure to strictly comply with rule in such respect was at most harmless error where

husband and wife lived in the same house and their interests in the anticipated litigation were substantially

similar. NRCP 4, 4(d)(6), 27, 27(a)(2), 61.

4. Appeal and Error; Evidence. Generally, the competency of an expert to offer his opinion is for the sound discretion of the trial court,

whose ruling will not be disturbed unless clear abuse is shown.

5. Appeal and Error. Exclusion of opinion of plaintiff's expert that the vehicle in which plaintiff was riding was traveling at

about 10 miles per hour at time of collision was not prejudicial, in personal injury action arising from

intersection collision, where expert was permitted to testify that neither vehicle could have been proceeding

at a high speed, and thus corroborated testimony of plaintiff's driver that she was proceeding slowly, and

where the crucial issue was not speed but rather which driver ran a red light. NRCP 61.

OPINION


This appeal from a judgment entered upon a jury verdict for the defendant in a personal

injury action presents two questions for our consideration. The first question concerns the

reception of certain deposition testimony, and the second, the exclusion of proffered opinion

testimony. It is the appellant's contention that each ruling constituted reversible error.

The plaintiff-appellant, Ralph Cardinal, sustained serious personal injuries in an

automobile collision. The automobile in which he was riding was driven by his wife, Grace,

and collided with an automobile driven by the defendant-respondent, Jack Zomeveld. Mr.

Zonneveld's niece, Margaretha Mimpen, of Holland, then present in this country on a visitor's

visa, was � ��


riding with him. The collision occurred at the controlled intersection of Kietzke Lane and

Second Street in Reno, Nevada. The driver of each vehicle contended that the other ran a red

stop light thus proximately causing the collision. There were three percipient witnesses, the

two drivers and Margaretha Mimpen. The plaintiff, Ralph Cardinal, was unable to relate what

had occurred.

The trial court received in evidence the deposition of Margaretha Mimpen. Counsel for the

plaintiff objected thereto for reasons hereafter to be discussed. Mimpen's testimony, for the

most part, corroborated that given at the trial by the defendant, Zonneveld, and was adverse to

the evidence given by Grace Cardinal who drove the car in which the plaintiff was riding.

The trial court declined to receive certain opinion testimony as to the speed of the Cardinal

vehicle on the ground that a proper foundation therefor was lacking. That evidence, if

received, would have tended to corroborate that given by Mrs. Cardinal on the point. We turn

to consider these rulings.

[Headnote 1]

1. The Mimpen deposition was taken before this action was commenced pursuant to the

verified petition of Zonneveld to perpetuate her (Mimpen's) testimony, and the order of court

entered thereon. The purpose of the perpetuation rule, NRCP 27, is to provide an ancillary

proceeding to prevent a failure of justice by preserving testimony which otherwise would be

lost before the matter to which it relates is ripe for judicial determination. DeWagenknecht v.

Stinnes, 250 F.2d 414 (D.C.Cir. 1957).

The plaintiff objected to the use of that deposition as evidence at trial mainly upon the

ground that the requirements of notice and service specified in subdivision 2 of Rule 27 were

not satisfied. That portion of the Rule provides that “[t]he petitioner shall thereafter serve a

notice upon each person named in the petition as an expected adverse party, together with a

copy of the petition, stating that the petitioner will apply to the court, at a time and place

named therein, for the order described in the petition.” Moreover, it provides that such notice

shall be served in the manner provided in Rule 4 for the service of summons.

[Headnotes 2, 3]

In this case, the petition for perpetuation named Grace Cardinal and Jack Cardinal as the

expected adverse parties, �� 6��


and that each lived at the same address. 1 Service of notice and a copy of the petition,

however, was made only upon Grace Cardinal. A copy of the notice and petition was not

served upon Ralph Cardinal, nor did the process server leave an additional copy of the notice

and petition with Grace for delivery to her husband who occupied the same abode. 2

When the deposition of Margaretha Mimpen was taken the record reflects only that Grace

Cardinal and Jack Zonneveld were represented by counsel. The record does not show that

Ralph Cardinal was represented.

As previously noted, the Rule provides that the “notice shall be served in the same manner

provided in Rule 4 for service of summons.” In considering Rule 4 this court, in Doyle v.

Jorgensen, 82 Nev. 196, 200, 414 P.2d 707 (1966), ruled that “[e]ach defendant must be

served a copy of the summons, even though both may share the same place of abode and may

even be members of the same family.” Since one of the defendants in that case was not served

with a copy of the summons, the default judgment entered against him was void. Id. at 201.

By a parity of reasoning, the plaintiff-appellant here contends that the deposition of

Margaretha Mimpen was ineffective and void for the purposes of trial evidence against him.

The analogy to Doyle v. Jorgensen is valid insofar as the manner of effecting service is

concerned. A copy of the notice and petition should have been served upon Ralph Cardinal,

or an additional copy thereof left for him with his wife, Grace. Beyond this, however, Doyle

v. Jorgensen is inapposite, since it did not concern the use of a deposition as evidence, but

rather involved the validity of a default judgment entered upon defective service of process,

an entirely different matter, possessing different consequences to the litigants.

In a slightly different context, the court in Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970),

made the following observation. “Although it is generally the rule that a deposition is not

admissible as to one not having the opportunity to be represented at its taking, the presence of

an adversary with the same motive to cross-examine the deponent and identity of issues in the

case in which the deposition was taken with the �� K��#��

____________________

1

The misnomer regarding Mr. Cardinal's first name, Jack instead of Ralph, apparently resulted from an

incorrect police report. The address was correct for Grace and Ralph Cardinal. We regard this mistake as

insignificant in the context of this case.

2

NRCP 4(d)(6) allows a copy to be left “at his dwelling house or usual place of abode with some person of

suitable age and discretion then residing therein.”


one in which it is sought to be used provide a well recognized exception to the rule. . . . In

such case the purpose of Rule 26(d)—to ensure that the deposition is taken under adversarial

circumstances—is substantially satisfied.” This rationale is suited to the case before us. Ralph

and Grace Cardinal, husband and wife, lived in the same house. Their interests in the

anticipated litigation were substantially similar. Attorney Barbagelata was their friend. The

issue of fault to be explored through the questioning of the deponent Mimpen was the critical

issue of the litigation all believed would ensue. We perceive no basis upon which to assume

that the cross-examination of Mimpen would have been substantially different had separate

counsel for Ralph had the opportunity to participate therein. Neither does the record suggest

that Ralph Cardinal suffered any prejudice due to the fact that his own counsel was not

present when Mimpen was deposed.

A trial is a search for truth. The testimony of every eyewitness to an accident is helpful in

the pursuit of a just and fair trial. Margaretha Mimpen was a percipient witness—one of

three. If this case were to be tried once more, her testimony would be procured and submitted

to the jury and the record of evidence would be the same as the record now before us. For all

of these reasons, we deem the failure to strictly comply with Rule 27(a)(2) to be at most

harmless error in the context of this case. NRCP 61. Other objections to the admissibility of

the Mimpen deposition are without substance.

[Headnotes 4, 5]

2. The trial court would not allow Stephen Blewett, an expert physicist, to give his

opinion as to the speed of the Cardinal vehicle at the time of collision. 3 Had he been

permitted to do so he would have fixed the speed at about 10 m.p.h. The judge apparently

believed that the witness did not possess sufficient factual data upon which to base an

opinion, and for that reason precluded the same. Levine v. Remolif, 80 Nev. 168, 390 P.2d

718 (1964).

We need not decide whether the judge properly construed the Levine decision since we are

wholly unable to perceive how the proffered opinion was critical to the jury's decision.

____________________

3

As a general proposition, the competency of am expert to offer his opinion is for the sound discretion of the

trial judge and his ruling will not be disturbed unless a clear abuse is shown. Levine v. Remolif, 80 Nev. 168,

390 P.2d 718 (1964); So. Nevada Plumbing v. Adelson, 79 Nev. 233, 381 P.2d 232 (1963); ;��Lockart v.

Maclean, 77 Nev. 210, 361 P.2d 670 (1961); see also: Choat v. McDorman, 86 Nev. 332, 468 P.2d 354 (1970).


Mr. Blewett was permitted to testify that since the cars came to rest almost at impact, neither

could have been proceeding at a high speed. His testimony corroborated that given by Mrs.

Cardinal that she was proceeding slowly. Neither was there a conflict in the evidence as to the

speed at which the Zonneveld car was traveling. All who testified on that point surmised his

speed to be about 25 m.p.h. The crucial issue was not speed, but rather which driver ran the

red light. The jury evidently decided that issue against Mrs. Cardinal. In these circumstances

we cannot find that the substantial rights of the plaintiff-appellant were prejudiced by the

exclusionary ruling. NRCP 61.

Affirmed.


____________

��89 Nev. 408, 408 (1973) Turner v. Dorland��

WAYNE M. TURNER and JANICE A. TURNER,

Appellants, v. BONITA DORLAND, Respondent.

No. 7038

September 28, 1973 514 P.2d 210

Appeal from an order denying a motion to discharge excessive attachment and to

exonerate attachment bond; Eighth Judicial District Court, Clark County; Clarence Sundean,

Judge.

The Supreme Court, Mowbray, J., held that since parties' 1969 agreement, wherein it was

provided that “immediately upon such recordation, the attachment heretofore levied against

the aforesaid real property shall be dismissed, discharged and released of record and shall be

of no further force or effect,” had been recorded, the lower court's order, predicate being no

attachment to discharge or reduce, dismissing defendants' motion was proper and the appeal

of defendants therefrom would be dismissed.

Appeal dismissed.

Hilbrecht, Jones & Schreck, of Las Vegas, for Appellants.

Lionel Sawyer Collins & Wartman and Roger A. Wirth, of Las Vegas, for Respondent.


Stipulations.

Since parties' 1969 agreement, wherein it was provided that “immediately upon such recordation, the

attachment heretofore levied against the aforesaid real property shall be dismissed, discharged, and

released of record and shall be of no further force or effect,” had been recorded, the lower court's order,

predicated on there being no attachment to discharge or reduce, dismissing defendants' motion to

discharge excessive attachment and exonerate attachment bond was proper. NRCP 72(b), (b)(2).

OPINION


On April 26, 1967, Respondent Dorland commenced this action against the Turners,

appellants herein, to recover $12,047.62 due on three promissory notes, plus $1,500 for

damages to realty and removal of personal property therefrom. Contemporaneously with the

filing of the action, a writ of attachment issued, and the sheriff levied on certain real property

of the Turners', known as the Sunset Motel.

Nearly 2 years later, on March 3, 1969, the Turners and Dorland entered into a stipulation

wherein the attachment was discharged, and a cash deposit of $13,547.62 was placed in a Las

Vegas bank to satisfy any judgment that Dorland might recover.

Three years thereafter, on March 27, 1972, the Turners filed a motion to dismiss and, in

the alternative, motion to discharge writ of attachment, predicated upon the alleged

unconstitutionality of the Nevada attachment statutes. That motion was denied on April 19,

1972.

After certain amendments to the pleadings, the Turners filed on May 4, 1972, another

motion to discharge excessive attachment and to exonerate attachment bond, again renewing

the constitutional attacks presented in the March 1972 motion. The district judge denied the

second motion on May 10, 1972, and the Turners have appealed from that order. 1 �� =&��%��<�� B�>�?�4�� >&?��

____________________

1

The learned judge, in denying the motion, ruled in part as follows:

“. . . This motion is to dismiss an attachment, dismiss an excessive attachment and to exonerate attachment

bond. Precisely speaking, logically analysing the words used we don't have an attachment at all, so there is no

excessive attachment. I don't like to hide behind fine distinctions but there is no attachment as I have previously

ruled to either discharge or reduce or—I don't know how you reduce an attachment unless it's on funds of some

kind. . . . So legality or illegality of attachment, constitutionality or unconstitutionality of the attachment laws, in

this Court's opinion, are not in controversy at this hearing. . . .”


In September 1972, Respondent Dorland filed with this court a motion to dismiss the

appeal, based on two grounds: (1) That the appeal was not timely docketed and (2) that the

order appealed from was not an appealable order. NRCP 72(b)(2). 2 Even though the appeal

was not timely docketed as provided by the Rules, we denied the motion to dismiss, on the

ground that the appellants had made a showing of excusable neglect in failing to docket the

appeal within the prescribed time period.

In the appeal proper, Respondent Dorland has renewed her motion to dismiss, urging again

the nonappealability of the order of the lower court.

The March 1969 agreement of the parties provided in paragraph 5:

“5. Upon the signing of this Stipulation, the Court shall order the parties to conform

thereto and this Stipulation together with the Order shall be thereafter recorded in the office

of the Clark County Recorder, Las Vegas, Nevada, and that immediately upon such

recordation, the attachment heretofore levied against the aforesaid real property shall be

dismissed, discharged, and released of record and shall be of no further force or effect.”

(Emphasis added.)

The agreement was recorded on March 6, 1969. Thereafter, as provided in the stipulation,

the attachment ceased to exist, because the parties had agreed that it “shall be dismissed,

discharged, and released of record and shall be of no further force or effect.”

The Nevada case of Ranft v. Young, 21 Nev. 401, 32 P. 490 (1893), is controlling in the

instant case, and mandates dismissal of the appeal. In Ranft, the plaintiff, Young, had caused

an attachment to be levied against Ranft's property contemporaneously with the filing of the

complaint. The defendant, Ranft, prevailed at trial and thereafter moved to discharge the

attachment. The lower court denied the motion, and he appealed. This court ruled that, under

Gen. Stats. § 3160, then in effect, the writ of attachment was discharged upon recovery by

defendants against attacking plaintiffs and ��

____________________

2

NRCP 72(b), in applicable part:

“(b) Appealable Determinations. An appeal may be taken:

. . .

“(2) From an order granting or refusing a new trial, or granting or refusing to grant or dissolving or refusing

to dissolve an injunction, or appointing or refusing to appoint a receiver, or vacating or refusing to vacate an

order appointing a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to

change the place of trial, and from any special order made after final judgment.”


that, therefore, there was no attachment to be dissolved. The court held, 21 Nev. 402-403, 32

P. 490-491:

“Is this an appealable order? We think not. Appeals from orders dissolving or refusing to

dissolve an attachment are provided for by Stat. 1887, p. 91; but, from the view we take of the

case, there was no attachment in existance [sic] in this case on the 23d day of August, 1892.

The attachment had been discharged by virtue of the judgment of the court in the case in

which the writ issued.

“. . .

“From the moment the judgment was rendered the attachment was dissolved, the lien

created by it was vacated, and the property released from the custody of the law; . . .”

The court held that if there was a remedy, it must be against the sheriff's holding the

property after judgment.

Likewise, in the instant case, when the March 1969 agreement of the parties was recorded,

the attachment previously levied against the Sunset Motel was “dismissed, discharged, and

released of record and . . . of no further force or effect.” Therefore, Judge Sundean's order

dismissing appellant's motion to discharge excessive attachment and to exonerate attachment

bond was proper, and this appeal is dismissed.


____________

��89 Nev. 411, 411 (1973) Helitzer Advertising v. Seven Star Media��

HELITZER ADVERTISING, INC., Appellant, v. SEVEN

STAR MEDIA CORP., a Corporation, Respondent.

No. 7022

September 28, 1973 514 P.2d 214

Appeal from an order of the Eighth Judicial District Court, Clark County, setting aside a

default judgment; William P. Compton, Judge.

The Supreme Court held that record disclosed no abuse of discretion in setting aside

default judgment.

Affirmed.

Wiener, Goldwater & Galatz, Ltd., and J. Charles Thompson, of Las Vegas, for Appellant.

Galane, Tingey & Shearing, of Las Vegas, for Respondent.

��89 Nev. 411, 412 (1973) Helitzer Advertising v. Seven Star Media��

1. Appeal and Error; Judgment. Determination of the existence of the necessary grounds for setting aside a default judgment rests within

the sound discretion of the district judge, and in the absence of a clear showing of abuse, the trial court's

setting aside of a default judgment will not be disturbed on appeal. NRCP 60(b)(1).

2. Judgment. Record on appeal disclosed no abuse of discretion by district court in setting aside default judgment.

NRCP 60(b)(1).

OPINION

Per Curiam:

Helitzer Advertising, Inc., has appealed from an order of the district court setting aside a

default judgment entered in Helitzer's favor against Seven Star Media Corp., the respondent.

Seven Star's motion was predicated upon NRCP 60(b)(1), which provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal

representative from a final judgment, order, or proceeding for the following reasons: (1)

mistake, inadvertence, surprise, or excusable neglect; . . .” In addition to showing excusable

neglect, the movant must demonstrate that he has a meritorious defense to the action. Ogle v.

Miller, 87 Nev. 573, 491 P.2d 40 (1971); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209

(1970).

[Headnote 1]

The determination of the existence of the necessary grounds for setting aside a default

judgment rests within the sound discretion of the district judge, and in the absence of a clear

showing of abuse, the trial court's setting aside of a default judgment will not be disturbed on

appeal. Horton v. Pringle, 88 Nev. 358, 498 P.2d 372 (1972); Hotel Last Frontier Corp. v.

Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963).

[Headnote 2]

We have reviewed the record below, and we find no abuse of discretion. Accordingly, we

affirm the order of the district judge setting aside the default judgment.

____________

��89 Nev. 413, 413 (1973) Meyer v. Sheriff��

CHET MEYER, Appellant, v. SHERIFF, PERSHING


No. 7420

September 28, 1973 514 P.2d 2

Appeal from an order denying a pretrial petition for a writ of habeas corpus; Sixth Judicial

District Court, Pershing County; Llewellyn A. Young, Judge.

Affirmed.

Samuel B. Francovich and Peter A. Perry, of Reno, for Appellant.

Robert List, Attorney General, Carson City; and Roland W. Belanger, District Attorney,

Pershing County, for Respondent.

OPINION

Per Curiam:

This appeal is without merit.

The order of the lower court is affirmed.

____________

��89 Nev. 413, 413 (1973) Barnes v. Sheriff��

JACKIE BARNES, Appellant, v. SHERIFF, CLARK


No. 7455

September 28, 1973 514 P.2d 2

Appeal from an order denying a pretrial petition for habeas corpus; Eighth Judicial District


Affirmed.

Morgan D. Harris, Public Defender, and Michael A. Cherry, Deputy Public Defender,


Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and J. A.

Silver, Deputy District Attorney, Clark County, for Respondent.

OPINION

Per Curiam:

This appeal is without merit.

The order of the lower court is affirmed.

____________

��89 Nev. 414, 414 (1973) Bill Stremmel Motors v. IDS Leasing Corp.��

BILL STREMMEL MOTORS, INC., Doing Business as BILL STREMMEL

VOLKSWAGEN, Appellant, v. IDS LEASING CORPORATION, Respondent.

No. 6969

September 28, 1973 514 P.2d 654

Appeal from judgment of the Second Judicial District Court, Washoe County; John W.

Barrett, Judge.

Lessor brought action against lessee for breach of a communications equipment lease. The

district court entered judgment in favor of the lessor, and lessee appealed. The Supreme

Court, Mowbray, J., held that (1) the lease's disclaimer of express or implied warranties of

merchantability or fitness with respect to the equipment effectively limited lessor's liability

for economic loss, (2) the alleged misrepresentations made by manufacturer's agent to the

lessee concerning the equipment was not available as a defense to the lessee to avoid the

lease, and (3) the lease's disclaimer provision was effective and not unconscionable.

Affirmed.

Frank R. Petersen, of Reno, for Appellant.

Hibbs & Bullis, Ltd., of Reno, for Respondent.

1. Bailment. Equipment lease disclaimer reading “LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES

OF MERCHANTABILITY OR FITNESS WITH RESPECT TO SUCH LEASED PROPERTY AND

HEREBY DISCLAIMS THE SAME” effectively limited the lessor's liability for economic loss, as the

language of the disclaimer was conspicuous and specifically mentioned fitness and merchantability, and as

there was no testimony to the effect that the lessee did not see the disclaimer or understand it. NRS

104.2316.

2. Bailment. A disclaimer clause is a permissible method of limiting a lessor's liability to a lessee for a product that

fails to perform in accordance with the representations of the manufacturer.

3. Bailment.

Despite fact that leased equipment malfunctioned and was not corrected to lessee's satisfaction, the lease

agreement was supported by consideration on the part of the lessor, where the lessor purchased the

equipment, it placed the equipment in the lessee's possession, and the lessee was thereby provided with a

desired tax shelter.

4. Contracts. Fraud by a third party will not invalidate a contract unless the party against whom the defense is asserted

has knowledge that such fraud was the inducement for the contract.


5. Bailment. Although equipment lease may have been induced by misrepresentations of equipment manufacturer to

the lessee, the lessee could not avoid liability under the lease on the ground of fraud, where the lessor was

unaware of misrepresentations by the manufacturer's agent, and where there was nothing to indicate that the

lessor in any way accepted benefits of the manufacturer or induced the lessee to utilize the manufacturer's

services.

6. Contracts. Contract is unconscionable only when the clauses of the contract and the circumstances existing at the

time of the execution of it are so one-sided as to oppress or unfairly surprise an innocent party.

7. Bailment. Equipment lease provision disclaiming any express or implied warranties of merchantability or fitness

with respect to the leased equipment was effective and not unconscionable, where the parties were of the

same bargaining power and made an arm's length transaction.

OPINION


This is an appeal from a judgment in favor of IDS Leasing Corporation, plaintiff below,

who commenced this action against Bill Stremmel Motors, Inc., for an alleged breach of a

lease agreement when Stremmel refused to make further lease payments on faulty

communications equipment which had been leased from IDS.

1. The Facts.

Bill Stremmel Motors, Inc., appellant herein, entered into a 96-month lease with

respondent, IDS Leasing Corporation, for a Centrum Communications system manufactured

by National Communications Planning Service, Inc., of Santa Clara, California, and

purchased by IDS for $16,574.62. The system was selected by Stremmel after numerous

conversations between Bill Stremmel and David Martin, a representative of National

Communications. Martin represented to Stremmel that the installation of the system would

improve the efficiency of Stremmel's communication system and would reduce maintenance

and operation costs. Soon after the equipment was installed, it began to malfunction, and it

was not corrected to Stremmel's satisfaction. In February 1970, Stremmel refused to make

any further payments to IDS, and this action was commenced. Stremmel denied liability on

the basis of failure of consideration, fraud, and breach of express warranty; Stremmel

counterclaimed for rescission. The district court �� <�� $�� +�� <�� ;��


found that the lease agreement contained a disclaimer of warranties, and the court further

found that IDS was not bound by the representations made to Stremmel by National

Communication's representative, David Martin. Based upon these findings, the court entered

judgment in favor of IDS, denying Stremmel's claim for rescission. We affirm that judgment.

[Headnote 1]

2. The Issues.

(a) Disclaimer of Implied Warranties. The lease between Stremmel and IDS contained a

provision that disclaimed all warranties, both express and implied. The disclaimer read:

“LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF

MERCHANTABILITY OR FITNESS WITH RESPECT TO SUCH LEASED PROPERTY

AND HEREBY DISCLAIMS THE SAME.”

Stremmel asserts that the trial court erred in finding that the disclaimer effectively limited

IDS's liability for economic loss. We do not agree. NRS 104.2316 provides that implied

warranties of merchantability or fitness may be modified or excluded by appropriate

conspicuous language. 1 The language of the disclaimer was conspicuous, written in capital

letters, and specifically mentioned fitness and merchantability. There is no testimony to the

effect that Stremmel did not see this disclaimer nor that it was not understood.

[Headnote 2]

In spite of IDS's compliance with the aforementioned statute, Stremmel contends that the

disclaimer is ineffective because the equipment failed to conform to the oral representations

of Martin, resulting in a failure of consideration that rendered the contract unenforceable.

This contention is meritless. A disclaimer clause is a permissible method of limiting a lessor's

liability to a lessee for a product that fails to perform in accordance with the representations

of the manufacturer. Transamerica Leasing Corp. v. Van's Realty Co., 427 P.2d 284 (Idaho

1967); Cinbar Engineering Co. v. Delta Leasing & Inv. Corp., 404 S.W.2d 626 (Tex.Civ.App.

1966); Northwest Collectors, Inc. v. Gerritsen, 446 P.2d 197 (Wash. 1968); ��: ��-��

____________________

1

NRS 104.2316 provides in pertinent part:

“2. Subject to subsection 3, to exclude or modify the implied warranty of merchantability or any part of it

the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or

modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude

all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend

beyond the description on the face hereof.'”


Sawyer v. Pioneer Leasing Corp., 428 S.W.2d 46 (Ark. 1968).

In Transamerica Leasing Corp., supra, the Supreme Court of Idaho rejected the lessee's

contention that the failure of three leased ice vending machines to operate as contemplated by

the lessee was a failure of consideration that excused the lessee from its obligation under the

lease. The court held that the consideration on the part of the lessor consisted in the lessor's

providing financing to obtain and supply the machines.

[Headnote 3]

In the present case, the record supports the trial court's finding that consideration did exist.

The terms of the agreement as embodied in the lease were satisfied. Under those terms, the

purchase of the Centrum system, the placing of that system in the possession of Stremmel,

and providing Stremmel with the desired tax shelter supplied consideration on the part of

IDS.

[Headnote 4]

(b) Fraud as a Defense. Stremmel further attempts to void liability under the lease by

claiming that the representations by Martin, an employee of National Communications,

constituted fraud, which rendered the lease void. Whatever might have been the merits of the

defense of fraud, such a defense is not available to Stremmel under the facts presented. Fraud

by a third party will not invalidate a contract unless the party against whom the defense is

asserted has knowledge that such fraud was the inducement for the contract. Brelsford v.

Whitney Trust & Sav. Bank, 69 F.2d 491 (5th Cir. 1934); Wolf v. Bonanza Inv. Co., 77 Nev.

138, 360 P.2d 360 (1961); Columbian Mut. Life Ins. Co. v. Martin, 136 S.W.2d 52 (Tenn.

1940). In the Columbian Mut. case, supra, the court held at 55, quoting Restatement of

Contracts § 477, comment a (1932):

“‘As between the original parties to a transaction induced by the fraud or material

misrepresentation of a third person, the injured party has power of avoidance unless the other

party is not only ignorant of the fraud or misrepresentation when he enters into the

transaction, but has either parted with value or has changed his position materially in reliance

on the transaction. . . .'”

[Headnote 5]

The record shows that IDS was unaware of the misrepresentations by an agent of National

Communications. There is nothing in the record to indicate that IDS in any way accepted

benefits of National Communications by participating as a � �� K�� $��


financing institution or induced Stremmel to utilize the services of National Communications.

Rather, in reliance upon the selection of equipment between Stremmel and National

Communications and in further reliance on the lease agreement between the parties in this

appeal, IDS expended $16,574.62 in order to supply Stremmel with the equipment requested.2

[Headnotes 6, 7]

(c) Unconscionability of the Disclaimer. Stremmel contends the lower court committed

reversible error in not finding that the disclaimer of the warranty in the lease was

unconscionable. We do not agree. A contract is unconscionable only when the clauses of that

contract and the circumstances existing at the time of the execution of the contract are so

one-sided as to oppress or unfairly surprise an innocent party. Uniform Commercial Code, §

2-302, Comment 1; Kugler v. Romain, 279 A.2d 640 (N.J. 1971); Central Ohio Co-op Mill

Producers, Inc. v. Rowlad, 281 N.E.2d 42 (Ohio App. 1972); Division of Triple T Serv., Inc.

v. Mobil Oil Corp., 304 N.Y.S. 2d 191 (Sup.Ct. 1969), aff'd 311 N.Y.S.2d 961 (App. 1970).

See also Warranty Disclaimer and Limitation of Remedy for Breach of Warranty under the

Code, 43 Boston U.L. Rev. 397 (1963). In its decision, the trial court found that the

disclaimer provision was effective and not unconscionable, because the parties were of the

same bargaining power and they made an arm's-length transaction. 3 Such a finding is

supported by the record. Stremmel at all times had the option to purchase the equipment

outright, but declined to do so because of the substantial tax advantages of a lease. Both

parties were ��

____________________

2

Appellant attempts to utilize Connor v. Great W. Sav. & Loan Ass n, 447 P.2d 609 (Cal. 1968), as authority

that a financing agent or capital supplier such as IDS is liable for the acts of the seller. Such a principle cannot

apply in the absence of (1) knowledge on the part of the financing institution that wrongful acts were

perpetrated, (2) acceptance of the benefits of third-party acts by the financing institution, or (3) express and

systematic inducement by the financing institution to utilize the goods or services of the third party. The record

is devoid of facts that would impose liability under Connor.

3

The court also found that the disclaimer related to commercial loss, not personal injury or damage. In so

finding, the trial court merely placed the burden of proving unconscionability where it properly lies under the

principles expressed in the Uniform Commercial Code, NRS 104.2719, which provides in pertinent part:

“3. Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.

Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie

unconscionable but limitation of damages where the loss is commercial is not.”


merchants familiar with commercial transactions. IDS was no more than a financial

intermediary with which Stremmel was free to transact business.



____________

��89 Nev. 419, 419 (1973) Lundy v. Warden��

CALVIN REX LUNDY, Appellant, v. WARDEN,


No. 7150

September 28, 1973 514 P.2d 212

Appeal from an order denying post-conviction relief. Second Judicial District Court,

Washoe County; James J. Guinan, Judge.

The Supreme Court, Batjer, J., held that refusal to permit defendant to withdraw his guilty

plea was not improper.

Affirmed.

James W. Johnson, Jr., of Reno, for Appellant.



1. Criminal Law. Absent proof substantiating defendant's claim that his then attorney “guaranteed” that he would get

probation, and absent evidence impeaching defendant's guilty plea or suggesting that his admissions in

open court were anything but the truth, refusal to permit defendant to withdraw his guilty plea was not

improper.

2. Criminal Law. An allegation that a guilty plea was entered because of expectation of a lesser penalty is, of itself,

insufficient to invalidate the plea.

3. Criminal Law. When an accused expressly represents in open court that his guilty plea is voluntary, he may not

ordinarily repudiate his statements to sentencing judge.

OPINION


Appellant was charged, in Washoe County, with rape, incest and making a false report to

police officers. Rape and incest �� G �� ,��


charges were also pending against him in Virginia and Florida. His retained counsel, through

negotiations and plea bargaining, obtained an agreement with the prosecuting attorney

whereby appellant would enter a guilty plea to the incest charge (NRS 201.180), and the other

charges would not be pursued. The prosecutor also agreed not to oppose a request for

probation. Collaterally, a conviction in this state would effectively dispose of the pending

charges in Virginia and Florida.

On January 21, 1971, appellant entered a plea of guilty to the incest charge. The record of

the canvass by the trial judge satisfies the standard of Boykin v. Alabama, 395 U.S. 238

(1969), recognized by this court in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). The

trial judge scheduled sentencing, requested a pre-sentence report from the Department of

Parole and Probation, and ordered a psychiatric examination for the appellant. On February

22, 1971, the trial judge imposed a six year sentence, declined to suspend the sentence and

grant probation. Lundy was disenchanted because he was refused probation and one month

after being sentenced filed a motion, in the district court, to withdraw his guilty plea. The trial

judge fully considered the motion, affidavits, briefs and argument and, on June 9, 1971,

denied the motion to withdraw the guilty plea. No appeal was taken from that order.

Appellant then retained new counsel and, in March, 1972, again petitioned the district

court to permit him to withdraw his guilty plea. At the evidentiary hearing conducted June 21,

1972, counsel for appellant stated:

“The grounds of the petition for post-conviction relief in this case is predicated upon one

thing, that during the arraignment and entry of plea and between the arraignment and

sentencing of this defendant, that he was so inadequately and incompetently represented

by counsel that in effect he was deprived of the right to counsel under the Fourteenth

Amendment to the Constitution of the United States.”

The trial court subsequently denied the post-conviction petition and in this appeal the

identical issue is reurged.

[Headnote 1]

The thrust of appellant's argument does not challenge his guilt; rather, he contends that his

then attorney “guaranteed” that he would get probation. There is nothing in the record before

us, other than Lundy's statement, to support that �� *��0� ��2��


contention. 1 As noted, the record of the “guilty plea” proceedings reflects otherwise.

____________________

1

A portion of the colloquy between the trial judge and appellant reads:

“The Court: Mr. Lundy, the Court advises you that an information has been filed against you, by the District

Attorney of Washoe County, in which information your name is given as Calvin Rex Lundy. Is that your true

name?

The Witness: Yes, sir.

The Court: How do you spell your last name?

The Witness: L-u-n-d-y, sir.

The Court: If that is not your true name, and no correction is made at this time, all proceedings, in the future

in this matter, will be had against you under that name. Is that understood?

The Witness: Yes, sir.”

. . .

“The Court: Mr. Lundy, what is your plea?

The Witness: Guilty, sir.

The Court: Let the record show the defendant has entered the plea of guilty to the charge.

Mr. Lundy, in entering the plea of guilty that you have just entered, do you realize that by so doing, you are

admitting all of the essential elements of the crime charged?


The Court: Do you understand that that crime is a felony, specifically, incest, and that you are charged with

having committed fornication with your daughter?


The Court: Do you understand that by your plea of guilty, you are waiving the right to a jury trial and your

right to confront your accusers, and your privilege against self-incrimination?


The Court: Do you also realize that your plea of guilty subjects you to punishment ranging from one to ten

years imprisonment in the State Prison?

The Witness: Yes, sir.”

. . .

“The Court: Have you discussed this matter thoroughly with your attorney?


The Court: Is the plea made of your own volition and without any coercion from anyone?


The Court: Has anyone made you any promises of leniency?

The Witness: No, sir.

The Court: Do you understand that all matters of probation and sentencing are to be determined solely by

the Court, that is, by me, and by no one else?


The Court: Are you pleading guilty because you are in fact guilty and for no other reason?


The Court: All right. Let the record show that the defendant has entered a plea of guilty to the charge.”


[Headnotes 2, 3]

In the subsequent proceedings Lundy alleged and testified that he was “guaranteed”

probation but offered not a scintilla of proof in support of that fact. An allegation that a guilty

plea is entered because of the expectation of a lesser penalty is, of itself, insufficient to

invalidate the plea. When an accused expressly represents in open court that his plea is

voluntary, he may not ordinarily repudiate his statements to the sentencing judge. “In the case

before us, nothing in the record impeaches [Lundy's] plea or suggests that his admissions in

open court were anything but the truth.” Brady v. United States, 397 U.S. 742, 758 (1970). 2

In Smithart v. State, 86 Nev. 925, 931, 478 P.2d 576, 580 (1970), we said: “It is presumed

that an attorney has fully discharged his duties. This presumption can only be overcome by

strong and convincing proof to the contrary.”

Here the presumption was not overcome by strong and convincing proof, nor by any proof

at all. A reading of the transcript of the evidentiary hearing shows that counsel did all that

could be expected of him.

The order denying post-conviction relief is affirmed.


____________________

2

See Tollett v. Henderson, 411 U.S. 258 (1973), McMann v. Richardson, 397 U.S. 759 (1970), and Parker v.

North Carolina, 397 U.S. 790 (1970). Cf. Parker v. Ross, 470 F.2d 1092 (4th Cir. 1972).

____________

��89 Nev. 422, 422 (1973) Adams v. State��

ALFRED ADAMS, Appellant, v. THE STATE


No. 6458

September 28, 1973 514 P.2d 208

Appeal from judgments of conviction and sentence of the Eighth Judicial District Court,


Defendant was convicted before the district court of robbery and murder, and he appealed.

The Supreme Court, Batjer, J., held that fingerprints obtained during booking process

following valid arrest for liquor store robbery were admissible in prosecution for subsequent

unrelated robbery and murder; fact �� )��

��89 Nev. 422, 423 (1973) Adams v. State��

that defendant had been found not guilty of liquor store robbery did not render fingerprints

the product of an illegal detention.

Affirmed.






1. Criminal Law. Fact that defendant was found not guilty of charges which led to his arrest for liquor store robbery did not

render fingerprints taken during booking process after arrest the product of an illegal detention and

inadmissible in subsequent prosecution for unrelated robbery and murder. NRS 171.124 et seq.,

195.020, 200.010, 200.380; U.S.C.A.Const. Amends. 4-6, 14.

2. Searches and Seizures. Police may not round up all possible suspects on mere suspicion and compel them to provide exemplars

of their physical characteristics in the hope that the exemplars will provide incriminating evidence.

3. Arrest.

Legality of an arrest is not governed by ultimate determination of guilt or innocence of an accused.

OPINION


Convicted of robbery (NRS 200.380), and murder (NRS 200.010 and NRS 195.020), by a

jury verdict, appellant was assessed concurrent sentences to the Nevada State Prison. In this

appeal he seeks reversal of the convictions and sentences. His sole contention is that

fingerprint exemplars, admitted in evidence at trial, were the product of an illegal detention

under the doctrine announced in Davis v. Mississippi, 394 U.S. 721 (1969), and thus

inadmissible.

The crimes for which appellant stands convicted occurred April 18, 1969, at the Peyton

Place Bar in Las Vegas. While the robbery was in progress one of the patrons in the bar was

wounded by gunshot and subsequently died. During the investigation of the robbery and

homicide appellant's fingerprints ��

��89 Nev. 422, 424 (1973) Adams v. State��

were found in the bar. At trial the testimony of Robert Aernout, one of the participants,

implicated appellant in the felonious activity. Aernout had, prior to appellant's trial, entered a

guilty plea to the murder and was conceded to be an accomplice. To corroborate Aernout's

damaging testimony which, inter alia, named Adams as a participant and placed him at the

scene of the crimes, the State, over objection by appellant's trial counsel, introduced

fingerprint exemplars taken from appellant on December 4, 1968.

[Headnote 1]

Appellant's argument is predicated on the premise that appellant was found not guilty of

the charges which led to his arrest on December 4, 1968; therefore, he concludes that the

fingerprints taken during the booking process after that arrest were the product of an illegal

detention and thus inadmissible. The contention is without merit.

[Headnote 2]

Davis v. Mississippi, supra, is inapposite to this case. The facts in Davis show a “dragnet”

operation by the constabulary which resulted in a large number of people being picked up,

interrogated and fingerprinted. There was neither a warrant nor probable cause for the arrest,

which was conceded to be constitutionally invalid and the High Court determined the use of

fingerprints so obtained to be constitutionally proscribed. We view Davis as holding that the

police may not round up all possible suspects on mere suspicion and compel them to provide

exemplars of their physical characteristics in the hope that the exemplars will provide

incriminating evidence.

The gist of appellant's argument is that Davis holds that any time an arrest is made and an

accused is booked and fingerprinted that those fingerprints cannot be used unless the accused

is subsequently convicted of the charge upon which the arrest was made. The argument is

logically insufficient; Davis provides no such umbrella exclusion. In fact, as Justice Harlan

stated: “There may be circumstances, falling short of the “dragnet' procedures employed in

this case, where compelled submission to fingerprinting will not amount to a violation of the

Fourth Amendment even in the absence of a warrant. . .” 394 U.S. at 728.

The circumstances in the instant appeal are far different from those in Davis. Adams was

arrested December 4, 1968, pursuant to a arrest warrant arising out of a criminal complaint

that had been filed December 3, 1968, charging Adams and another with the robbery of a

liquor store in Las Vegas, ��$��!�� "'�

��89 Nev. 422, 425 (1973) Adams v. State��

on November 4, 1968. At a preliminary hearing on the charges, held December 16, 1968, the

presiding magistrate ruled that there was probable cause to hold Adams [and the other named

accused] for trial. The parties agree that Adams was ultimately found not guilty of that

charge.

[Headnote 3]

The legality of an arrest is not governed by the ultimate determination of guilt or

innocence of an accused. Stewart v. State, 244 S.W.2d 688 (Tex.Civ.App. 1951); Wiley v.

State, 170 P. 869 (Ariz. 1918); Price v. Tehan, 79 A. 68 (Conn. 1911). See NRS 171.124 et

seq; Edward C. Fisher, LAWS OF ARREST § 78, pp. 168-175 (1967).

In Scott v. State, 83 Nev. 468, 434 P.2d 435 (1967), we said: “. . . [F]ingerprinting does

not offend any ‘sense of justice.' Fingerprints are physical not testimonial evidence, and thus

are not within the scope of the Fifth Amendment privilege. The right to counsel under the

Sixth Amendment is not applicable to instances wherein fingerprints are taken since this is

not a critical stage where the absence of counsel would derogate the right to a fair trial.

Schmerber v. California, 384 U.S. 757 (1966); U.S. v. Wade, 388 U.S. 218 (1967); Gilbert v.

California, 388 U.S. 263 (1967). Further, it is reasonable, within the terms of the Fourth

Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence

which would aid in apprehending and convicting criminals. Fingerprinting does not violate

Fourth Amendment rights or the due process clause of the Fourteenth Amendment.

Schmerber v. California, supra; Warden v. Hayden, 387 U.S. 294 (1967). See also Graef v.

State, 228 A.2d 480 (Md.App. 1967). There was no error in admitting the fingerprint

evidence.” 83 Nev. at 471, 434 P.2d at 436-437. See Comment, Retention and Dissemination

of Arrest Records: Judicial Response, 38 U. Chi. L. Rev. 850 (1971).

The High Court's ruling in Davis v. Mississippi, supra, did not erode the rationale and

continued viability of Scott, which is applicable in this case. Cf. People v. McInnis, 494 P.2d

690 (Cal. 1972), and People v. Fitzgerald, 105 Cal.Rptr. 458 (Cal.App. 1972). See Wong Sun

v. United States, 371 U.S. 471 (1963).

Affirmed.


____________

��89 Nev. 426, 426 (1973) Pineda v. Sheriff��

LOUIS F. PINEDA, Jr., Appellant, v. SHERIFF,


No. 7472

October 5, 1973 514 P.2d 651

Appeal from an order denying a pretrial petition for a writ of habeas corpus, Seventh

Judicial District Court, White Pine County; Roscoe H. Wilkes, Judge.

The Supreme Court held that record would permit jury finding that witness whose

testimony tended to corroborate testimony of accomplice was not also an accomplice.

Affirmed.

Ross P. Eardley, of Elko, for Appellant.



Habeas Corpus.

Record on petition for habeas relief based on challenge to sufficiency of evidence to show probable

cause sustained district court's finding that witness whose testimony tended to corroborate accomplice

was not also an accomplice. NRS 175.291, 200.010.

OPINION

Per Curiam:

After preliminary examination, a magistrate held appellant to stand trial for murder. NRS

200.010. By petition for habeas relief, he challenged the sufficiency of the evidence to show

probable cause, contending that the only direct evidence against him was testimony of an

admitted accomplice, one Ornelas, and that supporting testimony from one Susan Rader was

insufficient to supply the corroboration of Ornelas' testimony that NRS 175.291 requires,

because as a matter of law Susan Rader also was an accomplice.

In rejecting this contention, the district court noted that Susan Rader's testimony, if

believed, portrayed her to be “a person riding along in a car who found herself unavoidably a

passenger with others who participated criminally.”

From review of the entire record, we believe the district court correctly determined that a

jury might properly decide Susan Rader was not a corrupt participant in the crime here

concerned. Cf. Austin v. State, 87 Nev. 578, 491 P.2d 724 >� =�?�


(1971). Of course, the jury should be duly instructed, so that they may guide their

deliberations by applicable legal principles.

The order denying habeas relief is affirmed.

____________

��89 Nev. 427, 427 (1973) Nevada Nat'l Bank v. Gold Star Meat Co.��

NEVADA NATIONAL BANK, Appellant, v. GOLD

STAR MEAT COMPANY, INC., Respondent.

No. 6922

October 9, 1973 514 P.2d 651

Appeal from a judgment of the Second Judicial District Court, Washoe County; James J.

Guinan, Judge.

Seller sued bank for alleged misrepresentations of bank's officer in responding favorably to

seller's inquiry about potential buyer's credit rating. The district court entered judgment for

the seller in the amount of the defaulted credit extended to the buyer. The bank appealed. The

Supreme Court, Batjer, J., held that the officer was acting within the scope of his apparent

authority in favorably representing the potential buyer's credit rating, that the officer, in

making such representation at a time when the buyer was not a customer of the bank and the

officer had no information on which to base a credit evaluation, breached his duty of due

care, that the seller acted reasonably in relying upon the representation of the agent, and that

the bank was responsible for the breach committed by its agent.

Affirmed.

Guild, Hagen & Clark, Ltd., of Reno, for Appellant.

John Sanchez, of Reno, for Respondent.

1. Principal and Agent. Manager of branch bank was acting within scope of his apparent authority when he represented to seller

that it was safe to extend credit to potential buyer.

2. Principal and Agent. “Apparent authority” arises when principal holds his agent out as possessing certain authority or permits

him to exercise or to represent himself as possessing such authority under circumstances that would estop

the principal from denying existence of such authority.


3. Principal and Agent. Principal is bound by acts of its agent acting in course of employment, and principal is liable for those

acts within scope of agent's authority.

4. Master and Servant. Where action of employee is clearly independent venture and not committed within course of task

assigned, employer is not liable.

5. Fraud. Where one responds to an inquiry, it is his duty to impart correct information.

6. Fraud. Where bank officer undertakes to give advice, he is bound to use the skill and expertise which he has or

which he could be presumed to have.

7. Master and Servant. When bank officer, acting within scope of employment, negligently or carelessly misrepresents facts

within his knowledge, bank must be held responsible for those misrepresentations.

8. Master and Servant. Bank officer who responded favorably to inquiry from seller about credit rating of prospective buyer at

time when buyer was not customer of bank and officer had no information on which to base credit

evaluation breached duty of due care, and bank was responsible for breach committed by its agent.

9. Fraud. Where misrepresentation is negligently made, or negligently allowed to stand, party injured in relying

upon it must show that he acted as reasonably prudent person in so doing.

10. Fraud. Seller acted reasonably in extending credit to prospective buyer after favorable representation by officer

of bank, which assertedly breached duty to impart correct information, in response to seller's inquiry about

credit rating of the buyer.

OPINION


During the latter part of December, 1969, Verner Aversch, the president of the respondent

company, telephoned the appellant, Nevada National Bank, inquiring about the credit status

of a potential customer, Holiday Ranch Beef, Inc. Aversch's phone call was transferred to

Dale Hastings, a long time employee who was the assistant vice-president and manager of the

South Reno branch of the appellant bank. During their conversation, Hastings represented to

Aversch that it would be safe to extend $6,000-$8,000 credit to Holiday Ranch Beef,

indicating that “we were going along with them �� 2��<�� " �� %��A�� * ��


and hoping that they would do a good business and be a credit to the community.” However,

as of late December, 1969, Holiday Ranch Beef did not in fact have an account with

appellant, though its parent corporation, Holiday Airlines, Inc., was a depositor.

After receipt of the credit information, Aversch contacted his bank, Guarantee Bank and

Trust, Denver, Colorado, which made a similar telephonic inquiry and was given essentially

the same credit information. Relying on this information, Gold Star delivered two shipments

of beef products valued at $3,028.59 to Holiday Ranch Beef. Payment was made in that

amount with a postdated check delivered after the second shipment had been delivered.

On February 5, 1970, respondent's Colorado bank tendered the check for payment and it

was returned marked insufficient funds. On February 16, 1970, the check was resubmitted at

the direction of Hastings, and again returned for the same reason. Thereafter, on June 2, 1971,

respondent commenced suit alleging that the appellant bank was liable for the amount of the

check because of Hastings' representations. On February 15, 1972, judgment was entered

against Nevada National Bank in the amount of $3,028.59, plus attorney fees of $750.00. It is

from that judgment that this appeal is taken.

[Headnotes 1-3]

Hastings, as an officer of the appellant bank, was acting within the scope of his apparent

authority when he represented to Aversch that it was safe to extend $6,000-$8,000 in credit.

“Apparent authority” arises when a principal holds his agent out as possessing certain

authority or permits him to exercise or to represent himself as possessing such authority under

circumstances that would estop the principal from denying its existence. Ellis v. Nelson, 68

Nev. 410, 233 P.2d 1072 (1951). It was appellant who placed Hastings in a position of

authority from which he made a statement concerning the credit status of a prospective

depositor. Merchant's Bank v. State Bank, 77 U.S. (10 Wall.) 604, 644 (1870); Dougherty v.

Wells, Fargo & Co., 7 Nev. 368 (1872). A principal is bound by acts of its agent while acting

in the course of his employment, Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 392, 469 P.2d

399, 400 (1970), and a principal is liable for those acts within the scope of the agent's

authority. The Yellow Jacket Silver Mining Company v. Stevenson, 5 Nev. 224 (1869); Ellis

v. The Central Pacific Railroad Company of California, 5 Nev. 255, 256 (1869); Lonkey v.

Succor ;�O�;��


M & M Co. 10 Nev. 17, 19 (1874); Wright v. Carson Water Co., 23 Nev. 39, 42, 42 P. 196,

197 (1895).

[Headnote 4]

Where the action of the employee is clearly an independent venture and not committed

within the course of the very task assigned to him, the employer is not liable. Chapman v.

City of Reno, 85 Nev. 365, 455 P.2d 618 (1969); J. C. Penney Co. v. Gravelle, 62 Nev. 434,

44 P.2d 487 (1945). Hastings' actions were not independent but were within the scope of

ostensible authority that is generally associated with the position of bank officer.

Hastings when confronted with the request for credit information was not obligated to

divulge such information. He could have requested written authorization for such a disclosure

with attendant releases and disclaimers, or he could have provided Aversch with an accurate

factual statement, thus shifting to Gold Star the burden of determining the financial status of

Holiday Ranch Beef. Instead, Hastings represented that it was safe to extend credit up to

$8,000 with the knowledge that Holiday Ranch Beef was not in fact a depositor in his bank

and that he had no accurate means of assessing the credit status of Holiday Ranch Beef.

[Headnotes 5-7]

Where one responds to an inquiry, it is his duty to impart correct information. Copper

Process Co. v. Chicago Bonding & Ins. Co., 262 F. 66 (3rd Cir. 1920); American Bonding

Co. v. Fourth Nat. Bank, 91 So. 480 (Ala. 1921); Roper et al. v. Sangamon Lodge No. 6, 91

Ill. 518 (1879); Hays v. Meyers, 107 S.W. 287 (Ky. 1908); Hutsell v. Citizens Nat. Bank, 64

S.W.2d 188 (Tenn. 1933); Baker v. Seahorn, 1 Swan 54, 55 (Tenn. 1851); Feist v. Roesler,

86 S.W.2d 787 (Tex.Civ.App. 1935). Moreover, where a bank office through its officer

undertakes to give advice, even gratuitously, that officer is bound to use the skill and

expertise which he has or which he could be presumed to have. When that officer negligently

or carelessly attempts to discharge that duty by misrepresenting facts within his knowledge,

the bank should be held responsible for those misrepresentations.

[Headnote 8]

Hastings was originally under no duty to divulge any information, but once having

voluntarily ventured on such a course of action, he was thenceforth required to exercise due

care. Conway Nat. Bank v. Pease, 82 A. 1068, 1071 (N.H. 1912); ��6��3�

A��O��=/�*�


Hobbs v. George W. Blanchard & Sons Co., 70 A. 1082 (N.H. 1903); W. Prosser, Law of

Torts § 54 at 339 (3rd ed. 1969). Having assumed this duty Hastings breached it by failing to

state accurately and with full candor the posture of Holiday Airlines, Inc., and the absence of

any bank account at the time of Aversch's phone call in December, 1969.

[Headnote 9]

On the basis of Hastings' statement, two shipments of beef products totalling $3,028.59,

were sent to Holiday Ranch Beef. Where a misrepresentation is negligently made, or

negligently allowed to stand, the party injured in relying upon it must show that he acted as a

reasonably prudent person in so doing. Conway Nat. Bank v. Pease, supra, at 1073.

[Headnote 10]

Here it was foreseeable that after a specific inquiry about the credit of a potential customer

and a favorable disclosure by the appellant that an ordinary, prudent person would extend

credit based on that favorable information. The position of an agent such as Hastings

facilitates the reliance of third persons to whom such information appears accurate and to

whom such agent appears to be acting in the ordinary course of the business entrusted to him.

In Warshauer v. Bauer Construction Co., 3 Cal.Rptr., 570, 573 (Cal.App. 1960), that court

said: “The courts have consistently held that the principal is responsible to third parties for

the misconduct of an agent committed within the scope of his authority even though the

principal is completely innocent and has received no benefit from the transaction. . . ,” citing

Wells Fargo Bank & Union Trust Co. v. Dowd, 294 P.2d 159 (Cal.App. 1956); Rutherford v.

Rideout Bank, 80 P.2d 978 (Cal. 1938); Restatement of Agency § 261. See also Merchant's

Bank v. State Bank, supra, at 644, Dougherty v. Wells Fargo & Co., supra; 2A C.J.S. Agency

§ 157 at p.785.

The district court committed no error in holding Nevada National Bank liable for the

negligent acts of its agent, based on Hastings' material misrepresentations.

Affirmed.


____________

��89 Nev. 432, 432 (1973) Sorenson v. Sheriff��

THOMAS RANDALL SORENSON and LAMONT GEORGE DUKART,

Appellants, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.

No. 7376

October 10, 1973 514 P.2d 868

Appeal from an order denying pretrial writ of habeas corpus, Eighth Judicial District


The Supreme Court held that it was wholly unable to decide the issue of whether the

evidence adduced before the magistrate was sufficient to establish probable cause to hold

petitioners for trial on charge of assault with a deadly weapon where the designation of record

for appeal did not request the transcript of a preliminary examination and the transcript was

not submitted to the Supreme Court.

Affirmed.

Raymond E. Sutton, of Las Vegas, for Appellants.



Habeas Corpus.

Where sole issue in habeas corpus proceeding was whether the evidence adduced before the

magistrate was sufficient to establish probable cause to hold petitioners for trial on charge of assault with

a deadly weapon and the designation of record for appeal did not request the transcript of the preliminary

examination and that transcript had not been submitted to the Supreme Court, the court was wholly

unable to decide the issues presented. NRS 200.471.

OPINION

Per Curiam:

Charged with assault with a deadly weapon, a gross misdemeanor under NRS 200.471,

appellants contend the trial court erred in failing to grant them habeas relief. The sole issue is

whether the evidence adduced before the magistrate was sufficient to establish probable cause

to hold appellants for trial. The designation of record for appeal did not request the transcript

of the preliminary examination and that transcript has not been submitted to us; therefore, we

are “wholly unable to decide the issue presented.” Lamoureux v. Sheriff, 85 Nev. 44, 449

P.2d 471 (1969). The order of the trial court is affirmed.

____________

��89 Nev. 433, 433 (1973) Lawrence v. Southwest Gas Corp.��

MARVIN LAWRENCE and LORD BARONOFF APARTMENTS, INC., Appellants, v.

SOUTHWEST GAS CORPORATION, LAWYERS TITLE OF LAS VEGAS, INC.,

UTILITY FINANCIAL CORP., McKELLAR AND ASSOCIATES, and CHICAGO TITLE

INSURANCE COMPANY, Respondents.

No. 7143

October 11, 1973 514 P.2d 868

Appeal from summary judgment, Eighth Judicial District Court, Clark County; Joseph S.

Pavlikowski, Judge.

The Supreme Court held that court was justified in not granting defendants' leave to file

belated answers to demand for admissions.

Affirmed.

[Rehearing denied November 1, 1973]


Darrell Lincoln Clark, of Las Vegas, for Respondents Southwest Gas Corporation and

Utility Financial Corp.

Dickerson, Miles & Pico, of Las Vegas, for Respondent Lawyers Title of Las Vegas, Inc.

George L. Albright, of Las Vegas, for Respondents McKellar and Associates and Chicago

Title Insurance Company.

Discovery.

Where plaintiffs did not serve timely answers nor timely objections to request to admit certain facts

and thereby admitted facts that negated existence of claims alleged in amended complaint, district court

was justified in not granting leave to file belated answer to demand for admissions and granting judgment

for defendant. NRCP 36, 36(a), (b).

OPINION

Per Curiam:

Pursuant to NRCP 36(a), appellants (plaintiffs below) were served a formal request to

admit certain facts. 1 Appellants served neither timely answers nor timely objections, and�� # �� *��

____________________

1

As with analogous federal provisions, NRCP 36(a) expressly declares that each matter of which an

admission is requested “is admitted unless, within 30 days after service of the request, or within

��89 Nev. 433, 434 (1973) Lawrence v. Southwest Gas Corp.��

thus they admitted facts that negatived the existence of the claims alleged in their Amended

Complaint. Thereafter, without moving for permission to withdraw or amend these

admissions, appellants filed a belated “Answer to Demand for Admissions,” purporting to

deny the matters already admitted by operation of NRCP 36. On motion, the district court

granted summary judgment, from which appellants have appealed, contending that the district

court “abused its discretion.”

Assuming the district court had discretion to relieve appellants of their admissions, on its

own motion, our review of the record satisfies us that in this case the court was justified in

not doing so.

Affirmed.

____________________

such shorter or longer time as the court may allow, the party to whom a request is directed serves upon the party

requesting the admission a written answer or objection addressed to the matter,” and NRCP 36(b) states that

“[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal

or amendment of the admission.”

____________

��89 Nev. 434, 434 (1973) McNair v. Sheriff��

JOHN TOTH McNAIR, Appellant, v. SHERIFF,


No. 7264

October 11, 1973 514 P.2d 1175

Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial

District Court, Clark County; William P. Compton, Judge.

Habeas corpus proceeding brought by petitioner who was indicted for robbery after justice

court had dismissed a prior criminal complaint for identical offense. The district court denied

relief and petitioner appealed. The Supreme Court, Gunderson, J., held that where prosecutor

appeared in justice court unprepared for preliminary examination at time set by prior court

order, he did not offer to support obviously insufficient motion for continuance, after public

defender objected and he suggested no excuse for his conduct, there was “conscious

indifference to rules of procedure” and, after dismissal of complaint by justice court, State

had no right to obtain and proceed on a grand jury indictment for the identical offense.

Reversed.

Mowbray, J., dissented.


Roy L. Nelson, II, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; and Roy A. Woofter, District Attorney, Clark


1. Criminal Law. With respect to continuances sought by prosecution in district court, there is no presumption that good

cause exists and burden of showing good cause for delay is on the prosecution. DCR 21.

2. Criminal Law. Prosecutors must either proceed to preliminary hearing at appointed time, or show good cause for a

continuance by affidavit. DCR 21.

3. Indictment and Information. Within rule providing that new proceeding for same offense is not allowable when original proceeding

has been dismissed due to “willful” failure of prosecutor to comply with important procedural rules,

“willful” refers not only to intentional dereliction on part of prosecution, but also to situations where there

has been conscious indifference to rules of procedure affecting a defendant's rights. DCR 21.

4. Criminal Law. When justice court has dismissed charge and subsequently it is refiled, it is district court which decides

whether prosecutor was “willful” or “consciously indifferent” with respect to prosecuting charge in justice

court so as to be barred from instituting a second prosecution. DCR 21.

5. Criminal Law. Prosecutor bears burden of showing an excuse when he has occasioned a dismissal by failing to make a

proper motion to continue case. DCR 21.

6. Criminal Law. Where prosecutor appeared in justice court unprepared for preliminary examination at time set by prior

court order, he did not offer to support obviously insufficient motion for continuance, after public defender

objected, and he suggested no excuse for his conduct, there was “conscious indifference to rules of

procedure” and, after dismissal of complaint by justice court, State had no right to obtain and proceed on a

grand jury indictment for the identical offense. DCR 21.

OPINION


This appeal questions the State's right to obtain and proceed on a grand jury indictment for

robbery, after a justice court dismissed a prior criminal complaint for the identical offense

because the prosecutor appeared unprepared for a scheduled preliminary hearing, and failed

to tender a proper motion to continue the case.


It appears that the State originally filed three complaints in Las Vegas Justice Court,

charging separate felonies by appellant, who invoked his statutory right to have preliminary

examinations within 15 days. NRS 171.196(2). On the appointed day, the court first called

Case No. 2191-26A, took evidence, and held appellant for trial. Then, the court called Case

No. 2190-26A, but when the prosecutor announced himself unprepared, the court dismissed

that charge on motion of the public defender, after denying the prosecutor's oral motion for

continuance which he made no attempt to support. 1 Thereupon, the court called Case No.

2192-26A, took evidence, and held appellant for trial. Fifty-one days later, the prosecutor

obtained an indictment re-stating the accusation involved in Case No. 2190-26A, which he

had failed to substantiate in justice court.

Appellant sought habeas relief in district court and, that being denied, has appealed. Thus,

we must decide whether the prosecutor may re-charge appellant by indictment, in the

particular facts of this case. We hold he may not.

[Headnote 1]

Concerning continuances in district court, we have long held: “There is no presumption

that good cause exists . . . and the burden of showing good cause for delay is on the

prosecution.” Ex Parte Morris, 78 Nev. 123, 125, 369 P.2d 456, 457 (1962). Accord:

Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970); Oberle v. Fogliani, 82 Nev. 428, 420

P.2d 251 (1966); Ex Parte Hansen, 79 Nev. 492, 387 P.2d 659 (1963).

Almost five years ago, this court unanimously determined to limit continuances strictly,

not only in district court, but at the justice court stage of criminal proceedings. This seemed

essential to prevent prosecuting and defense attorneys from destroying our justice courts'

capacity to meet an ever-increasing caseload. Then, as now, we believed our criminal justice

system can ill afford to bestow on prosecutors, or on defense ��

____________________

1

After the prosecutor orally moved for a continuance, the following occurred:

“BY PUBLIC DEFENDER: I would object to the continuance.

“BY THE COURT: The objection is sustained.”

So far as affidavits in the record reveal, the prosecutor made no effort whatever to justify his request for a

continuance, either when he made it, when the public defender objected to it, or even after the justice court

ruled. To date, it has not been suggested to any court that any reason or excuse existed.


counsel, largesse through continuances for which no cause is shown.

[Headnote 2]

Hence, in Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), we declared that the “reasons

underlying DCR 21 are equally appropriate to the continuance of a criminal proceeding in the

justice's court”; and although we withheld application of the rule in that case, we gave

prosecutors clear notice that, in the future, they must either proceed to a preliminary hearing

at the appointed time, or show good cause for a continuance by affidavit, as under DCR 21. 2

[Headnote 3]

Continuing omissions to comply with this obligation impelled our holding in Maes v.

Sheriff, 86 Nev. 317, 468 :�&�@@&�>� =/?�� B�0*��$%��='�("&>&?��

____________________

2

Rule 21. Motions for continuance: Contents, service of affidavits; counter-affidavits; argument.

1. All motions for the continuance of causes shall be made on affidavit.

2. When a motion for the continuance of a cause is made on the ground of absence of witnesses, the affidavit

shall state:

(a) The names of the absent witnesses and their present residences, if known.

(b) What diligence has been used to procure their attendance or their depositions, and the causes of a failure

to procure the same.

(c) What the affiant has been informed and believes will be the testimony of each of such absent witnesses,

and whether or not the same facts can be proven by other witnesses than parties to the suit whose attendance or

depositions might have been obtained.

(d) At what time the applicant first learned that the attendance or depositions of such absent witnesses could

not be obtained.

(e) That the application is made in good faith and not for delay merely.

3. No continuance will be granted unless the affidavit upon which it is applied for conforms to this rule,

except where the continuance is applied for in a mining case upon the special ground provided by NRS 16.020.

4. Copies of the affidavits upon which a motion for a continuance is made shall be served upon the opposing

party as soon as practicable after the cause for the continuance shall be known to the moving party.

5. Counter-affidavits may be used in opposition to the motion.

6. No amendments or additions to affidavits for continuance will be allowed after they have been read, and

no argument will be heard on motions for a continuance, except such as relate to the sufficiency of the affidavits

read on the hearing.

In McGill v. Chief of Police, 85 Nev. 307, 454 P.2d 28 (1969), this court declared that DCR 21 “is an

applicable rule for proceedings in the municipal court as well as the justice court as in Hill.” 85 Nev. at 309, 454

P.2d at 29.


P.2d 332 (1970), in which we said: “Although NRS 178.562(2) may not have been intended

to bar a second criminal complaint in the circumstances before us, basic fairness does bar

such a procedure. A new proceeding for the same offense (whether by complaint, indictment

or information) is not allowable when the original proceeding has been dismissed due to the

willful failure of the prosecutor to comply with important procedural rules.” 86 Nev. at 319,

468 P.2d at 333. Thereafter, in State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971), we made it

clear that in this context “willful” refers not only to intentional derelictions on the part of the

prosecution, but “equally to situations where there has been conscious indifference to rules of

procedure affecting a defendant's rights.” 87 Nev. at 83, 482 P.2d at 285; see also, Broadhead

v. Sheriff, 87 Nev. 219, 484 P.2d 1092 (1971). 3

Still, our aim being that criminal accusations should proceed or terminate on principles

compatible with judicial economy, fair play and reason, we have attempted to apply DCR 21

in the criminal realm firmly, consistently, but realistically. Therefore, to allow for legitimate

emergencies, we have held that, if surprised by absence of a subpoenaed witness, a prosecutor

may orally move for continuance on his own sworn testimony. Bustos v. Sheriff, 87 Nev.

622, 491 P.2d 1279 (1971). Moreover, we have held that a magistrate may permit a

prosecutor to supplement deficiencies in supporting affidavits with oral testimony. Jasper v.

Sheriff, 88 Nev. 16, 492 P.2d 1305 (1972).

[Headnotes 4, 5]

Furthermore, when a justice court has dismissed a charge that subsequently is re-filed, our

rulings contemplate that it is the district court which decides whether a prosecutor has been

“willful” or “consciously indifferent” so as to be barred from instituting a second prosecution.

Stockton v. Sheriff, 87 Nev. 94, 95, 482 P.2d 285, 286, n. 1 (1971). As noted, the prosecutor

bears the burden of justifying delay when he moves for a continuance; thus, a fortiori, he

must bear the burden of showing an excuse when he has occasioned a dismissal by failing to

make a proper motion. However, where the record contains a basis for finding something

other than “willful disregard” or “conscious indifference,” we have upheld the district court's

determination. Thus, in Johnson v. Sheriff, 89 Nev. 304, 511 P.2d 1051 (1973), we affirmed a

district court's denial of habeas corpus, although a prosecutor's oversight had caused �� +�� !

____________________

3

The incumbent District Attorney of Clark County did not occupy that office when the omissions concerned

in our Hill, Maes, Austin and Broadhead decisions occurred.


dismissal of justice court proceedings, where the record supported a finding that the

prosecutor's omission resulted from mere unfamiliarity with his obligations. 4

Also, to avoid delay by the defense, we have held that by failing to object promptly to an

allegedly improper continuance an accused waives his right to complain. Stockton v. Sheriff,

supra. The same is true if a defendant initiates a challenge by habeas, but does not pursue it.

George v. State, 89 Nev. 47, 505 P.2d 1217 (1973); Oberle v. Fogliani, supra.

We believe these prior decisions establish simple, fair, nontechnical guidelines for seeking

continuances, with which any lawyer acting in good faith can comply. We believe,

furthermore, that our application of DCR 21 to justice court proceedings, in the manner

described, has indeed significantly reduced lax practice, and that we cannot sacrifice this long

term benefit to salvage an accusation for which the prosecutor has shown scant concern. All

this in mind, we now consider the facts of the case at bar.

Here, the prosecutor acknowledges that the justice of the peace correctly denied the State's

motion for continuance and dismissed its complaint against appellant. The prosecutor seems

to contend, however, that if the breach of duty for which a felony complaint is dismissed

chances to be the prosecutor's first dereliction in that particular case, then it should not be

deemed “willful failure” or “conscious indifference” in law, no matter how willful or

indifferent it may be in fact. 5 �3�� 5�� 0�� 2��

____________________

4

See also: Concurring opinion of Gunderson, J., George v. State, 89 Nev. 47, 505 P.2d 1217 (1973).

5

As stated to the district court, this is the prosecutor's position:

“Your Honor, the State does not contest in this case the fact that it did not comply with Charlotte Dean Hill

or with the Bustos case. We would stipulate that Judge Reid was right in dismissing the case in Justice Court.

However, I don't think that's the question that's before the Court.

“The question is when the magistrate does dismiss the case, can the State refile the same charge by way of

indictment? Now this issue is ruled by the Maes and Austin cases which opposing counsel has cited. In those two

cases, and there was one of those cases, the State had obtained something like five continuances before the

dismissal in Justice Court. In the other case the magistrate had given the State a continuance to the same

afternoon to file an affidavit and the State did not comply with that.

“Now in that posture the Supreme Court ruled in those two cases that the State cannot refile, where the

dismissal below was due to willful failure or conscious indifference to comply with procedural rules. I think both

of those cases are therefore distinguishable on that ground from the present case. So it would be our position that

the State is not precluded from the filing under the circumstances of the present case. . . .”


We need not now decide whether a prosecutor may with impunity violate our rules once in

every case he prosecutes; for here multiple prosecutorial errors appear which can only be

viewed as “conscious indifference to rules of procedure,” no other way of viewing them

having been made apparent.

[Headnote 6]

First, the prosecutor appeared in justice court unprepared for preliminary examination at

the time set by prior court order. For this, no explanation has ever been offered, in any form,

in any forum.

Second, assuming the prosecutor's inability to proceed resulted from unavailability of a

necessary witness, he failed to tender that or any excuse to the justice court by a motion based

on supporting affidavits, as required by Hill and later cases. Again, no explanation for such

omission has ever been suggested.

Third, assuming absence of a necessary witness (or some other problem) caught the

prosecutor by surprise, too late for him to prepare explanatory affidavits, he neither advised

the court of this fact nor offered to be sworn and testify in support of his motion, as our

Bustos decision contemplates. Again, no explanation, ever.

Fourth, even after the public defender objected to the obviously insufficient motion for

continuance, the prosecutor made no effort or offer to support it. Clearly, one cannot say the

magistrate ruled against the prosecutor too rapidly, for none can tell from the record how

rapidly he ruled. Moreover, the prosecutor was obligated to support his motion properly when

he made it. Once the motion was made, the court was entitled to assume the movant had

submitted all support he expected to tender. However, disregarding these realities, and

assuming the justice court ruled too abruptly (something the prosecutor does not contend,

although our dissenting brother has indicated that idea will be the basis of his dissent),

absolutely nothing could prevent the prosecutor from tendering his excuse after the court

ruled, if he had one and felt disposed to do so. No excuse has been suggested, either to the

justice court, to the district court, or to this court on appeal.

If we were to condone the prosecutor's conduct in this case, on the record before us, in

effect we would nullify all of our past decisions by which we have sought to control

continuances, and to limit delay. Then, a prosecutor could avoid the force of our prior rulings

at will, by moving for a continuance without stating grounds, without submitting affidavits,

and � ��


without offering his own sworn testimony. Simply by saying nothing to support his request

either before or after the justice court ruled, a prosecutor could always create precisely the

same record as we have before us now.

The order of the district court is reversed with instructions to grant a writ of habeas corpus

as to the charge originally contained in Case No. 2190-26A.


Mowbray, J., dissenting:


An indictment returned by the Clark County Grand Jury charged appellant, McNair, with

robbing a 7-11 food store in Henderson, Nevada, in violation of NRS 200.380. He has

challenged the indictment by pretrial habeas, contending that the State is precluded from

proceeding under the indictment because a criminal complaint charging the

defendant-appellant with the same offense had been previously dismissed by Justice of the

Peace Robert Reid. District Judge William Compton denied habeas and ordered the appellant

to stand trial. Hence, this appeal. The thrust of McNair's argument, which has been accepted

by the majority of the court, is that the record in the magistrate's court affirmatively shows

that the State willfully failed to comply with the mandates of Hill v. Sheriff, 85 Nev. 234, 452

P.2d 918 (1969), and Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), in that the

prosecutor offered no explanation of his inability to proceed with a scheduled preliminary

hearing. McNair also argues that the prosecutor exhibited the “conscious indifference to rules

of procedure affecting appellant's rights” which we condemned in State v. Austin, 87 Nev. 81,

482 P.2d 284 (1971).

The appellant was charged with three separate felonies, and the preliminary hearing on

each felony was scheduled for the same day. After the first hearing was concluded, the

prosecutor announced that the State was not prepared at the time to go forward with the

second scheduled hearing, whereupon defense counsel immediately objected. The entire

transcript of the proceedings before the justice of the peace, which was reconstructed by the

reporter after the “hearing,” consists of the following:

Defense Counsel: “I would object to the continuance.”

The Court: “The objection is sustained.”

One of our basic constitutional and procedural premises is that each party shall have an

opportunity to be heard, and this ��


opportunity to be heard has been traditionally protected by the courts. In this instance,

however, the court refused the prosecutor any opportunity to express the State's position and

precluded him from any attempt to comply, if he could, with the mandates of Hill and Maes

by sustaining the objection. It is not the presiding magistrate's prerogative to assume, once the

motion for a continuance is made, that there is no supporting evidence for such motion. In

such instances, the presiding magistrate has at least an obligation to permit the State an

opportunity to explain its position.

Under the factual posture of this case, I cannot find that the mandates of Hill and Maes

have been offended or that the State has exhibited a “conscious indifference to rules of

procedure affecting a defendant's rights. [footnote omitted]” State v. Austin, supra.

I would, therefore, affirm Judge Compton's order denying McNair's petition for habeas and

order him to stand trial on the robbery charge.

____________

��89 Nev. 442, 442 (1973) Pruett v. First National Bank of Nevada��

AUDREY E. PRUETT, Appellant, v. FIRST NATIONAL BANK OF NEVADA, a National

Banking Association, Respondent.

No. 6944

October 12, 1973 514 P.2d 1186

Appeal from judgment notwithstanding the verdict rendered in the Second Judicial District

Court, Washoe County; John W. Barrett, Judge.

Bank sought to recover against wife for the unpaid balance of a loan to her former

husband. After jury relieved wife of liability, the district court granted judgment

notwithstanding the verdict in favor of bank, and wife appealed. The Supreme Court, Zenoff,

J., held that where language of continuing guaranty by which wife guaranteed loans of her

husband in amounts not to exceed $150,000 specifically required written notice of revocation

from wife as to future transactions and no such notice was given by wife, provisions of

guaranty included future loans, and wife knew that guaranty would remain in effect until

revoked in writing by her, divorce did not release wife from guaranty because bank knew of

divorce and, once waived by � �� #��


wife, bank had no obligation to advise her of either renewals, extensions or giving of new

loans.

Affirmed.


Daniel R. Marlowe, of Incline Village, and Benjamin F. Marlowe, of Oakland, California,

for Appellant.

Stewart, Horton & McKissick, Ltd., of Reno, for Respondent.

1. Guaranty. Where language of continuing guaranty by which wife guaranteed loans of her husband in amounts not to

exceed $150,000 specifically required written notice of revocation from wife as to future transactions and

no such notice was given by wife, provisions of guaranty included future loans, and wife knew that

guaranty would remain in effect until revoked in writing by her, divorce did not release wife from guaranty

because bank knew of divorce and, once waived by wife, bank had no obligation to advise her of either

renewals, extensions or giving of new loans.

2. Guaranty. Notice to guarantor that lender would or has acted on a guaranty is not a condition so essential to

obligation that it cannot be waived.

3. Judgment. Motion for judgment notwithstanding the verdict following an adverse jury verdict is properly granted

when a lower court determines that a claim for relief has been proven as a matter of law.

OPINION


Audrey Pruett, when she was Mrs. Audrey Wykoff, signed a continuing guaranty to the

First National Bank of Nevada which, although it was her understanding that the guaranty

was for bank policy purposes only, guaranteed the loans of her husband in amounts not to

exceed $150,000.

Her signature was affixed January 23, 1964. In 1967 the Wykoffs were divorced and their

Lake Tahoe dwelling was awarded to Mrs. Wykoff. Subsequent to the divorce and with

knowledge of it the bank renewed a $20,000 loan to Mr. Wykoff and increased the interest

rate. The renewed loan and interest increase were without the knowledge of Mrs. Pruett.

Mr. Wykoff, after the divorce, was adjudicated bankrupt ��;��


and the bank pursued Mrs. Pruett for the unpaid balance of the loan. To secure the amount

due and owing the bank attached the proceeds of the sale of the home. After trial a jury

relieved her from liability but the trial court granted judgment notwithstanding the verdict in

favor of the bank.

The multiple appellate issues include principally (1) her contention that the divorce

released her from the continuing guaranty because the bank knew of the divorce; (2) that

instructing the jury that the bank had no obligation to advise a guarantor, under a continuing

guaranty, of either renewals, extensions or the giving of new loans was error, and further (3)

that the trial court erred in granting the motion notwithstanding the verdict.

[Headnote 1]

1. The language of the guaranty specifically required written notice of revocation from the

guarantor as to future transactions and no such notice was given by Audrey Pruett. Under the

provisions of the guaranty future loans were also included. The record is clear that Mrs. Pruett

knew that the guaranty would remain in effect until revoked in writing by her. We find no

citations of law that would release the effect of those stipulations. Furthermore, a divorce

under the circumstances recited in this case does not have the same effect upon a contract of

guaranty as that of the dissolution of a partnership. Cf. Brunzell v. Golden Gate National

Bank, 85 Nev. 345, 455 P.2d 31 (1969); Cremer v. Higginson, 6 F.Cas. 797 (No. 3,383) (C.C.

Mass. 1817).

[Headnote 2]

2. Notice to the guarantor that the lender would or has acted upon a guaranty is not a

condition so essential to the obligation that it cannot be waived. See, e.g., Davis v. Wells, 104

U.S. 159 (1881); Brunzell v. Golden Gate National Bank, supra. All of the objections which

Mrs. Pruett now raises to enforcement of this obligation were specifically covered in the

continuing guaranty wherein she waived all the requirements she would not like to impose

upon the bank.

[Headnote 3]

3. The motion for judgment notwithstanding the verdict following an adverse jury verdict

is properly granted when a lower court determines that a claim for relief has been proved as a

matter of law. Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963). The record justifies the

trial court's ruling.


We find no grounds for relief as to these or any other assigned errors.

Affirmed.

Thompson, C. J., and Mowbray and Gunderson, JJ., and Santini, D. J., concur.

____________

��89 Nev. 445, 445 (1973) Pagliaro v. State��

GEORGE PAGLIARO, Appellant, v. STATE


No. 7065

October 12, 1973 514 P.2d 869

Appeal from judgment of conviction and sentence of the First Judicial District Court,


Defendant was convicted in the district court of knowingly attempting to obtain old-age

assistance by means of a willfully false statement, a gross misdemeanor, and he appealed. The

Supreme Court held that even if evidence reflected a completed offense, rather than a mere

attempt, such was insufficient to warrant reversal, in view of express statutory provision that

a person may be convicted of an attempt to commit a crime, though it appears on trial that

crime was consummated, unless court in its discretion discharges jury and directs defendant

to be tried for crime itself.

Affirmed.

Charles E. Springer, Ltd., of Reno, for Appellant.

Robert List, Attorney General, Carson City; Michael E. Fondi, District Attorney, and

Ronald T. Banta, Deputy District Attorney, Carson City, for Respondent.

Criminal Law.

Even if evidence, in prosecution for attempting to obtain old-age assistance by means of a willfully

false statement reflected a completed offense, rather than a mere attempt, such was insufficient to warrant

reversal, in view of express provision of statute that a person may be convicted of an attempt to commit a

crime, though it appears on trial that crime was consummated, unless court in its ��

��89 Nev. 445, 446 (1973) Pagliaro v. State��

discretion discharges jury and directs defendant to be tried for crime itself. NRS 208.070, subd. 2,

427.280.

OPINION

Per Curiam:

Charged with knowingly attempting to obtain old-age assistance by means of a willfully

false statement, which NRS 427.280 condemns as a gross misdemeanor, appellant was found

guilty after a jury trial, sentenced to pay a $500 fine, and has appealed. In our view, his appeal

is without merit, and only one contention requires comment.

Appellant complains of a variance between the charge stated in the Information filed

against him, and the proofs adduced at trial. He urges that the evidence adduced against him

reflects a completed offense, rather than a mere attempt. This point might warrant concern

except for NRS 208.070(2), which expressly provides that “a person may be convicted of an

attempt to commit a crime, although it appears on the trial that the crime was consummated,

unless the court in its discretion shall discharge the jury and direct the defendant to be tried

for the crime itself.”

The judgment of conviction and sentence are affirmed.

____________

��89 Nev. 446, 446 (1973) Babock v. Sheriff��

RICHARD ALLENDER BABCOCK, Appellant, v. THE

SHERIFF OF WASHOE COUNTY, NEVADA, Respondent.

No. 7466

October 15, 1973 514 P.2d 869

Appeal from an order denying pretrial petition for writ of habeas corpus, Second Judicial

District Court, Washoe County; James J. Guinan, Judge.

Affirmed.

Samuel T. Bull, of Reno, for Appellant.

Robert List, Attorney General, Carson City; Robert E.

��89 Nev. 446, 447 (1973) Babock v. Sheriff��

Rose, District Attorney, and Calvin R. Dunlap, Deputy District Attorney, Washoe County,

for Respondent.

OPINION

Per Curiam:


____________

��89 Nev. 447, 447 (1973) Nevada Cement Co. v. Lemler��

NEVADA CEMENT COMPANY, and CENTEX CORPORATION,

Appellants, v. HAROLD L. LEMLER, et al., Respondents.

No 6897

October 15, 1973 514 P.2d 1180

Appeal from a judgment for damages; First Judicial District Court, Lyon County; Richard

L. Waters, Jr., Judge.

Plaintiffs brought nuisance action for damages against cement company which was

discharging from cement kiln 27,000 pounds of dust into the air each day. The district court

awarded to the plaintiffs special damages in varying amounts, general damages of $5,000

each, and punitive damages. The cement company appealed, disputing the award of identical

general damages to each plaintiff and the award of punitive damages. The Supreme Court,

Batjer, J., held that the payment of identical general damages to dissimilarly situated plaintiffs

was erroneous on its face, and that evidence that the cement company knew large amounts of

dust were being discharged yet continued to operate the kiln without a secondary filtration

system for 19 months established the malice in fact necessary to justify punitive damages,

although the amount of punitive damages was required to be reevaluated in light of any

ultimate adjustment of general damages.

Judgment for special damages affirmed; judgment for general compensatory and

punitive damages remanded for further proceedings.

Thompson, C. J., dissented in part.

[Rehearing denied December 12, 1973] G��A��O�< #��8��


Vargas, Bartlett & Dixon, and John C. Renshaw, of Reno, for Appellants.

Echeverria and Osborne, of Reno, for Respondents.

1. Nuisance. Payment of damages may be ordered to compensate for discomfort and annoyance caused by temporary

nuisance.

2. Nuisance. Award of same amount of general compensatory damages for discomfort and annoyance caused by

temporary nuisance to multiple plaintiffs who were dissimilarly situated was erroneous on its face.

3. Damages. A plaintiff is never entitled to punitive damages as a matter of right; their allowance or denial rests in

discretion of trier of fact. NRCP 59(a).

4. Damages. Malice in fact, required by statute to support award of punitive damages, may be established by showing

that defendant's wrongful conduct was willful, intentional, and done in reckless disregard of its possible

results. NRS 42.010; NRCP 59(a).

5. Nuisance. Evidence that cement company knew large volume of dust was being discharged from cement kiln, yet

continued to operate kiln without secondary filtration system for 19 months, was sufficient to establish

malice in fact necessary for award of punitive damages against cement company in action for nuisance.

NRS 42.010; NRCP 59(a).

6. Damages. Mere fact that punitive damage award is large is not conclusive that it is result of passion or prejudice.

NRCP 59(a).

7. Appeal and Error. Where appeal from judgment against cement company for damages for emission of cement dust which

caused nuisance to nearby plaintiffs resulted in case being remanded for redetermination of general

damages, trial court must reevaluate amount of punitive damages to be awarded, in light of any ultimate

adjustment which might be made in amount of general damages, and also in light of order in separate case

in which court authorized cement company to operate dust-emitting cement kiln for period of six months

without abatement.

OPINION


This appeal challenges the award of general compensatory and punitive damages to 85

plaintiffs who suffered discomfort and annoyance from a temporary nuisance maintained by

the $�� #��


Nevada Cement Company, a wholly owned subsidiary of Centex Corporation.

Following a lengthy trial, the court determined that 35 of the 85 plaintiffs incurred special

damages in varying amounts totaling $40,298.31. This determination is not questioned.

Neither do the appellants dispute their liability to compensate the plaintiffs for the discomfort

and annoyance suffered by each of them. The appellants, however, do contend that an

identical compensatory damage award of $5,000 to each of the plaintiffs (total, $425,000)

who were differently situated cannot stand. Moreover, they urge that there is not a suitable

foundation upon which to find malice in fact [NRS 42.010; Nevada Credit Rating Bureau,

Inc. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972)] which would justify an award of punitive

damages in any amount.

In 1964, Nevada Cement constructed a single kiln cement plant near Fernley, Nevada to

utilize deposits of limestone in that area. When operation was commenced at Kiln No. 1,

there had been installed a primary filtration system and a bag house for secondary filtration.

This process was apparently efficient and its operation is not questioned in this case. In

September of 1969, construction of a second kiln was completed and it was put into

operation. When first installed, Kiln No. 2 had a primary filtration system which removed

approximately 85 percent of the dust generated by the cooking process, but unlike Kiln No. 1

it had no secondary filtration equipment.

The appellants contended that they had plans for a secondary filtration process but instead

of installing a bag house system similar to Kiln No. 1, they desired to install an electrostatic

precipitator. Their witnesses testified that the most efficient method of designing such a

precipitator would be to collect data from the kiln under actual operating conditions. From

September 1969 until March 1971 the appellants were emitting an average of 27,000 pounds

of dust into the air each day. In May of 1970, the Commissioners of Lyon County filed suit to

abate the dust emissions. On September 29, 1970, the Honorable Roscoe Wilkes, District

Judge, in the case of Lyon County v. Nevada Cement Co., No. 5132, found “That Kiln No. 2

was emitting quantities of dust, that the dust caused damage to painted surfaces and possibly

aggravated the problems of those residents who were particularly susceptible to sinus and

respiratory problems . . . and that the dust emissions did constitute a nuisance. . . .” That court

also found “that an abrupt cessation of operating Kiln No. 2 would result in the immediate

termination of employment of approximately 37 �� $�� ,��$�� $��


men and would thereby create a severe economic hardship to those employees, their families,

to Nevada Cement Company, the businessmen of Fernley, Nevada, and supplies to Nevada

Cement Company. For example, Southwest Gas Company would lose approximately

$296,145 during a nine month shut-down of Kiln No. 2 with a resultant danger of employee

termination by this company. Sierra Pacific Power Company would likewise be damaged

with resultant employee termination.”

Consequently, the court in the Lyon County case No. 5132 exercised its discretion,

balanced the equities, and concluded that the shutting down of Kiln No. 2 would impose

hardships in excess of any benefit to be derived by the residents of Lyon County. Cf. Koseris

v. J. R. Simplot Company, 352 P.2d 235 (Idaho 1960); Riter v. Keokuk Electro-Metals

Company, 82 N.W.2d 151 (Iowa 1957); Smith v. City of Ann Arbor, 6 N.W.2d 752 (Mich.

1942); Smith v. Staso Milling Co., 18 F.2d 736 (2d Cir. 1927). That court, therefore, granted

to Nevada Cement a period of six months from October 1, 1970 to April 1, 1971, within

which to correct the emissions from Kiln No. 2, and granted a temporary injunction effective

April 1, 1971, if the nuisance was not by then abated. Nevada Cement installed an

electrostatic precipitator before April 1, 1971. The nuisance was abated within the time

allowed by that court.

[Headnotes 1, 2]

1. It is entirely proper to order the payment of damages to compensate for discomfort and

annoyance caused by a temporary nuisance. Kornoff v. Kingsbury Cotton Oil Company, 288

P.2d 507 (Cal. 1955). See also: Jezowski v. City of Reno, 71 Nev. 233, 286 P.2d 257 (1955);

Bliss v. Grayson, 24 Nev. 422, 56 P. 231 (1899); Annot. 142 A.L.R. 1307. In this case,

however, the record is clear that some of the plaintiffs were considerably annoyed, while

others were minutely disturbed. Some of them lived near the cement plant, and others were

miles distant. Some were within prevailing wind patterns and others were not. Some incurred

special damages and others did not. Since the purpose of a general damage award is to

compensate the aggrieved party for damage actually sustained, an identical award to multiple

plaintiffs who are dissimilarly situated is erroneous on its face. In the light of the evidence,

their annoyance and discomfort could not have been the same. Consequently, we perceive no

rational basis upon which to affirm an award of $5,000 to ��


each of them. There must be a redetermination by the trial court of the general compensatory

damages.

[Headnote 3]

2. Here the trial judge concluded that the acts of the appellants amounted to malice and he

assessed punitive damages against them. A plaintiff is never entitled to punitive damages as a

matter of right, their allowance or denial rests entirely in the discretion of the trier of fact.

Bille v. Manning, 210 P.2d 254 (Cal.App. 1949); Brewer v. Second Baptist Church of Los

Angeles, 197 P.2d 713 (Cal. 1948); Finney v. Lockhart, 217 P.2d 19 (Cal. 1950); Precision

Plating & M. Fin., Inc. v. Martin-Marietta Corp., 435 F.2d 1262 (5th Cir. 1970). NRS 42.0101 provides that punitive damages are recoverable where the defendant has been guilty of

oppression, fraud or malice expressed or implied. That statute was first enacted in the State of

Nevada in 1965 and is verbatim with California Civil Code, Sec. 3294, which was first

enacted in 1872 and has not been amended since 1905. The cases decided in that jurisdiction

have interpreted that the malice contemplated by that section is malice in fact and that the

phrase “express or implied” has reference only to the evidence by which malice is

established. Davis v. Hearst, 116 P. 530, 538 (Cal. 1911); Wolfsen v. Hathaway, 198 P.2d 1

(Cal. 1948); Sturges v. Charles L. Harney, Inc., 331 P.2d 1072 (Cal.App. 1958). In Nevada

Credit Rating Bureau, Inc. v. Williams, supra, we adopted the applicable principles, as set out

in 14 Cal.Jur.2d, Damages, § 176.

[Headnote 4]

Malice in fact must be established by the evidence if it is the ground relied upon to support

an award of punitive damages. Gombos v. Ashe, 322 P.2d 933 (Cal.App. 1958). Here it is

asserted by the appellants that the award of punitive damages was legally erroneous and

impermissible because no actual malice was shown in the record as required by NRS 42.010.

Malice in fact, sufficient to support an award of damages within the scope of NRS 42.010,

“may be established by a showing that the [appellants'] wrongful conduct was willful,

intentional, and done in reckless disregard of its possible ��2

____________________

1

NRS 42.010: “In an action for the breach of an obligation not arising from contract, where the defendant has

been guilty of oppression, fraud or malice, expressed or implied, the plaintiff, in addition to the actual damages,

may recover damages for the sake or example and by way of punishing the defendant.”


results.” Toole v. Richardson-Merrell, Inc., 60 Cal.Rptr. 398 (Cal.App. 1967). Nevada Credit

Rating Bureau, Inc. v. Williams, supra.

[Headnote 5]

The trial judge found that the conduct of the appellants constituted oppression, wanton

disregard for the rights and properties of the respondents and amounted to legal and express

malice. 2 The appellants seriously contend that because the district judge concluded that the

acts of the appellants only amounted to “legal malice and express malice” and not “malice in

fact” that the requirements of Gombos v. Ashe, supra, and other California cases, as well as

our recent decision in Nevada Credit Rating Bureau, Inc. v. Williams, supra, had not been

met. The record supports a finding of malice in fact. The appellants' wrongful conduct was

“willful, intentional, and done in reckless disregard of its possible results.” Their conduct was

not simply accidental or negligent. They knew from the outset that a large volume of dust was

being discharged to fall upon the countryside, yet their Kiln No. 2 was intentionally operated

for the entire nineteen months with apparent disregard for the possible results. This conduct

provided the requisite malice in fact and warranted the trial judge in assessing punitive

damages.

As in the matter of general compensatory damages, the assessing of punitive damages is

wholly subjective. There are no objective standards by which the monetary amount can be

calculated. The concept of punitive damages rests upon a presumed public policy, to punish a

wrongdoer for his act and to deter others from acting in similar fashion. Miller v. Schnitzer,

78 Nev. 301, 371 P.2d 824 (1962). Ideally the punitive allowance should be in an amount that

would promote the public interest without financially annihilating the defendant. By way of

limitation the award must not be given under the influence of passion or prejudice (NRCP

59(a); see Miller v. Schnitzer, supra), and the wrongdoer may be punished, but not destroyed.

Evidence was received relevant to the financial status of the ��

____________________

2

In his conclusions of law, Judge Waters said:

“6. That continuing to operate Kiln Number 2 without secondary filtration for a period of 19 months with

full knowledge that for each barrel of cement produced, 9 lbs. of cement dust would be spewed out into the

atmosphere over the neighbors of defendants, constitutes oppression.

“7. That such acts were done with wanton disregard for the rights and properties of others and constitutes

legal malice and express malice.”


appellants. Although there is some dispute between the parties over the appellants' net worth,

it is obvious that they would not be financially ruined by the award even if we accept their

contention that the net worth of Centex Corporation at the time of trial was only $28,142,188.

[Headnotes 6, 7]

The appellants have pointed to nothing that was said or done by Judge Waters and we have

found nothing that would indicate that he was biased or prejudiced against the appellants, and

it does not appear that the award of punitive damages was given under the influence of

passion or prejudice. As in the matter of an award of general compensatory damages, the

mere fact that the punitive award is large is not conclusive that it is the result of passion or

prejudice. Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783 (1959); Wells, Inc. v. Shoemake, 64

Nev. 57, 177 P.2d 451 (1947); Burch v. Southern Pacific, 32 Nev. 75, 104 P. 225 (1909);

Forrester v. S.P. Co., 36 Nev. 247, 134 P. 753 (1913); Christensen v. Floriston P. Co., 29

Nev. 552, 92 P. 210 (1907). Nonetheless, the trial court must reevaluate the amount of the

punitive damages to be awarded not only in the light of any ultimate adjustment which may

be made in the amount of general compensatory damages, but also in light of the order

entered by Judge Wilkes in the case of Lyon County v. Nevada Cement Co., Lyon County

No. 5132 (1970), which authorized the appellants to operate Kiln No. 2 for a period of six

months without abatement.

This case is remanded to the trial court for a redetermination of general compensatory

damages for discomfort and annoyance and for a redetermination of the amount of punitive

damages. The redeterminations may be made on the record as it stands with whatever

assistance the trial court desires from counsel for the parties. The judgment of $40,298.32 for

special damages is affirmed.

Mowbray, Gunderson, and Zenoff, JJ., concur.

Thompson, C. J., dissenting in part:

I agree that an identical compensatory damage award of $5,000 to each of the 85 plaintiffs

(total, $425,000) who are dissimilarly situated is erroneous on its face and cannot stand since,

in the light of the evidence, their annoyance and discomfort could not have been the same.

However, I depart from the majority view that punitive damages in some amount ��


may be justified. There simply does not exist a suitable foundation upon which to find malice

in fact [NRS 42.010; Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9

(1972)] to justify an award of punitive damages in any amount, let alone the enormous sum of

$1,400,000 levied against the defendants by the trial court.

Kiln No. 2 of the Nevada Cement Company near Fernley, Nevada, was in operation from

September 5, 1969, to March 31, 1971, without adequate dust control equipment. In May

1970, Lyon County filed suit to abate the nuisance. In that case the court found that the

emissions from Kiln No. 2 “while creating problems is not overwhelmingly serious, though

aggravating, annoying, and to a degree damaging.” That court also found “that an abrupt

cessation of operating Kiln No. 2 would result in the immediate termination of employment

of approximately 37 men and would thereby create a severe economic hardship to those

employees, their families, to Nevada Cement Company, the businessmen of Fernley, Nevada,

and suppliers to Nevada Cement Company. For example, Southwest Gas Company would

lose approximately $296,145 during a nine month shutdown of Kiln No. 2 with a resultant

danger of employee termination by this company. Sierra Pacific Power Company would

likewise be damaged with resultant employee termination.”

As noted by the majority opinion “the court in the Lyon County case exercised its

discretion, balanced the equities, and concluded that the shutting down of Kiln No. 2 would

impose hardships in excess of any benefit to be derived by the residents of Lyon County. Cf.

Koseris v. J. R. Simplot Co., 352 P.2d 235 (Idaho 1960); Riter v. Keokuk Electro-Metals Co.,

82 N.W.2d 151 (Iowa 1957); Smith v. City of Ann Arbor, 6 N.W.2d 752 (Mich. 1942); Smith

v. Staso Milling Co., 18 F.2d 736 (2d Cir. 1927). That court, therefore, granted to Nevada

Cement a period of six months from October 1, 1970, to April 1, 1971, within which to

correct the emissions from Kiln No. 2, and granted a temporary injunction effective April 1,

1971, if the nuisance was not by then abated. Nevada Cement installed an electrostatic

precipitator before April 1, 1971. The nuisance was abated within the time allowed by that

court.”

The court order in the Lyon County case provides insulation against the claims for punitive

damages in the instant action and precludes a finding of malice in fact on the part of Nevada

Cement. Cases elsewhere appear to suggest that it is improper to apply the doctrine of

balancing conveniences to a situation ��


where the acts complained of are willfully tortious. Stuart v. Lake Washington Realty

Corporation, 92 S.E.2d 891 (W.Va. 1956); Wright v. Best 121 P.2d 702 (Cal. 1942); Bourne

v. Wilson-Case Lumber Co., 113 P. 52 (Ore. 1911). The converse of that proposition must be

that if a court does apply that doctrine and declines to abate the nuisance forthwith, the

conduct of the defendant must be deemed without sufficient malice to justify punishment

therefor. Compensation for actual damage sustained would be in order, but not punishment,

since the court by its decree has authorized the continuation of the nuisance for a limited

period of time.

Of course, the Lyon County decree is not res judicata of the issue of punitive damages. It

does, however, bear directly and forcefully upon the motivation of the cement company. To

hold otherwise would place Nevada Cement in an intolerable position. The law must not be

allowed to rule in one case that “the community needs your business, we will not abate it

forthwith, you may continue”—and, in the other case, “but you will be soundly punished if

you do so.”

Quite aside from the Lyon County decree, the record may not reasonably be read to show

malice on the part of Nevada Cement. The company started operating the second kiln in

September 1969. It was equipped with a primary filtration system which removed

approximately 85 percent of the dust. Plans had been made to add an electrostatic precipitator

to remove a greater percentage of the dust. However, the company wished to conduct

necessary tests under normal production conditions before designing and installing the

precipitator, in order to determine essential requirements therefor. The tests were run and the

results thereof were submitted to the company in December 1969. The company immediately

drew up preliminary bid specifications and mailed them to prospective builders of the

precipitator.

At that point in time, local and state emission standards were nonexistent. Meetings had

been held by officials of Nevada Cement with the County Commissioners and state

representatives to discuss emission standards, and final design of the precipitator was

withheld pending adoption of appropriate regulations. Not until the end of May 1970 did it

become clear that the state regulations to be promulgated would require the precipitator to be

99 percent effective. Final specifications for the precipitator were then prepared and a

contract let for its construction and installation in June 1970. The precipitator was installed

and in operation in May 1971, ten months after � ��


final specifications were known. Installation within ten months was a rapid installation

according to the record.

This course of conduct cannot reasonably be construed to denote malice in fact warranting

punishment. The award of punitive damages should be stricken from the judgment.

____________

��89 Nev. 456, 456 (1973) City of Las Vegas v. Swingers, Inc.��

CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v.

SWINGERS, INC., a Nevada Corporation dba MR. UPTIGHTS and DOES I-X,

Respondents.

CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v. SWINGER,

INC., dba SWINGERS BOUTIQUE and DOES I-X, Respondents.

No. 7089

October 17, 1973 514 P.2d 1189

Appeal from an order of the Eighth Judicial District Court, Clark County; Leonard I.

Gang, Judge.

Action by city to enjoin bookstore operators from sale, distribution and possession or

acquisition of allegedly obscene books and film. The district court dismissed complaint on

basis that city failed to carry its burden of proving the books and film were obscene. The

Supreme Court held that where after trial, but before appeal, United States Supreme Court

rendered decisions changing obscenity test, and arguably, proper disposition of the case might

be altered by those decisions, case would be remitted to lower court.

Remanded for proceedings consistent with this opinion.

Carl E. Lovell, City Attorney, Joan D. Buckley and Daniel Ahlstrom, Deputy City

Attorneys, of Las Vegas, for Appellant.

Henry R. Gordon, of Las Vegas, for Respondents.

Appeal and Error.

Where, at time of trial of obscenity cases, accepted procedure consisted of production of evidence and

witnesses to establish offensive materials as pornographic on national standards, but after trial and before

appeal, United States Supreme Court rendered decisions changing obscenity test, and, arguably, proper

disposition of the case might be altered by those decisions, case would �� )�� ) � ��

��89 Nev. 456, 457 (1973) City of Las Vegas v. Swingers, Inc.��

be remitted to lower court for full argument by counsel of questions, including retroactivity, statutory

construction and fulfillment of procedural requisites of proof, findings and decision.

OPINION

Per Curiam:

The City of Las Vegas sought to enjoin respondent bookstore operators from the sale,

distribution, possession or acquisition of allegedly obscene materials. Two police officers

purchased from them four books containing pictures and explanatory articles and a film

depicting certain sexual activities. At the hearing the method of proof consisted merely of the

introduction into evidence of the books and film without further offer of expert testimony to

establish that the evidence violated contemporary standards of decency and was without

redeeming social value or in any other respects offended the obscenity laws.

The action was commenced September 20, 1971, the hearing held early in 1972. The trial

court dismissed the complaint on the basis that the city failed to carry its burden of proving

the evidence was obscene.

At that time accepted procedure in such cases consisted of the production of evidence and

witnesses to establish the offensive materials as pornographic on national standards, whatever

those might be. However, after the trial, but before this appeal was heard, the U.S. Supreme

Court rendered decisions in the cases of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607

(1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628 (1973); United States v.

Orito, 413 U.S. 139, 93 S.Ct. 2674 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796

(1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789 (1973); Kaplan v. California, 413

U.S. 115, 93 S.Ct. 2680 (1973). Arguably, proper disposition of the instant case might be

altered by these decisions, which the district court has never had an opportunity to consider.

The issues in this regard are important and we believe the lower court should be permitted to

rule upon them in the light of full argument by counsel. Hence, we remand this case without

decision for full exploration of all questions including those of retroactivity, statutory

construction and fulfillment of procedural requisites of proof, findings and decision.

____________

��89 Nev. 458, 458 (1973) Havas v. Love��

TYRONE HAVAS, dba COURTESY MOTORS,

Appellant, v. JAY R. LOVE, Respondent.

No. 7205

October 17, 1973 514 P.2d 1187

Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.

Pavlikowski, Judge.

Action by purchaser seeking to recover amount paid toward purchase price of a motor bus.

The district court entered judgment for purchaser, and appeal was taken. The Supreme Court

held that purchaser was entitled to recover portion of purchase price which has been paid

where record supported finding that motor bus sold to purchaser was not fit for its intended

use, that it failed to conform to implied warranty of merchantability contained in purchase

agreement, and that rejection by purchaser of bus took place within a reasonable period of

time.

Affirmed.

Franklin & Bartley, of Las Vegas, for Appellant.

Boyd, Leavitt & Freedman, of Las Vegas, for Respondent.

1. Sales. Record supported finding that motor bus sold to purchaser was not fit for intended use, that it failed to

conform to implied warranty of merchantability contained in the purchase agreement, and that rejection by

purchaser of bus took place within a reasonable period of time, so that purchaser was entitled to recover

that part of the purchase price which had been paid. NRS 104.1101 et seq., 104.2314, subd. 2(c),

104.2601, 104.2602, 104.2711.

2. Appeal and Error. Findings may be implied where findings are not made or requested, but the record is clear and will

support the judgment.

OPINION

Per Curiam:

Mr. Havas appeals from a judgment of the court sitting without a jury which gave

judgment to Mr. Love in his action to recover the amount paid toward the purchase price of a

motor bus.

In July of 1970 Mr. Love consulted the appellant about the purchase of a camper trailer.

An agreement was reached between the parties and several adjustments were made to Mr.

��89 Nev. 458, 459 (1973) Havas v. Love��

Love's automobile to ensure that it could pull the trailer without overheating. Despite the

installation of a transmission cooler, Mr. Love's car overheated when he attempted to haul the

camper to his home. Appellant thereafter accepted the return of the trailer and permitted Mr.

Love to apply his $500.00 down payment toward the purchase of a motor bus. A contract of

purchase was signed by the respondent who made an additional down payment of $500.00.

On the day that Mr. Love was to accept delivery of the bus he noticed smoke coming from the

air conditioning unit. After a wait of three or four hours during which the appellant attempted

to repair the bus Mr. Love again observed smoke and fumes coming out of the motor and

from underneath the hood of the vehicle. At this time Mr. Love informed the appellant that he

no longer wanted this particular bus. Appellant demanded that he take the bus and refused to

provide another in acceptable condition.

1. Appellant contends that the trial court erroneously applied the Uniform Commercial

Code as adopted in the State of Nevada. NRS 104.1101 et seq. We find this contention to be

without merit. Unless otherwise agreed, goods sold in this state carry an implied warranty of

merchantability, that is, that the goods are at least fit for the ordinary purposes for which they

are used. NRS 104.2314(2)(c). If goods purchased pursuant to a contract or tender of delivery

of such goods fail in any respect to conform to the contract, the buyer may reject them within

a reasonable time after their delivery or tender. NRS 104.2601, 104.2602.

[Headnote 1]

The record in this case supports a finding that the motor bus sold to the respondent was not

fit for its intended use and failed to conform to the implied warranty of merchantability

contained in the purchase agreement. Whether the court believed Mr. Love's testimony that he

did not drive the bus from the appellant's lot or the appellant's testimony that the bus was

driven away but returned later the same day or the following day, the court could reasonably

find that rejection took place within a reasonable period of time. Having rightfully rejected

the goods, Mr. Love was entitled to recover that part of the purchase price which had been

paid. NRS 104.2711.

[Headnote 2]

2. Appellant assigns as error the trial court's failure to ��

��89 Nev. 458, 460 (1973) Havas v. Love��

make written findings of fact and conclusions of law. Where findings are not made or

requested but the record is clear and will support the judgment, findings may be implied. Cf.

Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970).

The decision of the lower court is affirmed.

____________

��89 Nev. 460, 460 (1973) Reid v. Reid��

RAYMOND A. REID, Appellant, v. DeANN H.

REID, Respondent.

No. 7128

October 23, 1973 514 P.2d 1294

Appeal from decree granting divorce to respondent wife on her counterclaim on the

ground of extreme cruelty and from the award therein of child custody to the wife, child

support in the amount of $250 per month and from the division of certain community

property. Eighth Judicial District Court, Clark County; Leonard I. Gang, Judge.

Husband brought action against wife for divorce. The wife counterclaimed and the district

court grated divorce to the wife on her counterclaim, awarded child custody to the wife, child

support and a division of community property. The husband appealed. The Supreme Court,

Zenoff, J., held that alleged adulterous activities on the part of the wife eight years prior to the

divorce were too remote in time to be given consideration, that the trial court did not abuse its

discretion with respect to distribution of the community property, the child support of $250

per month for two children fell within proper discretion of trial court and that the trial court's

finding that $5,000 debt to wife's father was separate and distinct from that owed to credit

union by the father was supported by evidence.

Affirmed.

Jones, Jones, Close, Bilbray, Kaufman & Olsen, Ltd., of Las Vegas, for Appellant.

George, Steffen & Simmons, of Las Vegas, for Respondent.

1. Divorce. Alleged adulterous activities by wife eight years prior to divorce were too remote in time to be

considered in divorce action.

2. Divorce. Trial court did not abuse its discretion in divorce action with respect to distribution of the community

property.

��89 Nev. 460, 461 (1973) Reid v. Reid��

3. Divorce. Trial court did not abuse its discretion by awarding wife child support in the amount of $250 per month

for two children.

4. Divorce. Evidence supported trial court's finding that $5,000 debt of husband and wife to wife's father was

separate and distinct from that owed to credit union by the wife's father.

5. Bills and Notes. In the absence of fraud, mistake or lack of failure of consideration, prior or contemporaneous oral

agreement that promissory note is not to be payable according to its terms constitutes no defense to action

on the note.

6. Payment. An obligation may be discharged by payment to the lender or to some third person authorized to receive

it.

OPINION


Raymond Reid and DeAnn Reid were married in 1962. Two children, ages nine and seven

at the time of the divorce, were born of the marriage.

Raymond was a sheetmetal worker at the Nevada Test Site when on July 1, 1971 the

Reids, with another couple, the Montheis, purchased Pet Village, Inc. for $213,000. These

divorcing parties owned 50 percent of the corporation paying $15,000 for their share of the

stock.

As part of their down payment Raymond and DeAnn borrowed $5,000 from DeAnn's

father, Mr. Hess. Raymond signed a note for that amount to Mr. Hess who, in turn, borrowed

$5,000 which amount was paid directly to Raymond by check from Mr. Hess' credit union.

Raymond did not sign Hess' note to the credit union nor was it understood that he was to do

so. Their only understanding was that Raymond and DeAnn owed $5,000 to Hess.

Included with the Hess note to the credit union was a insurance policy on Hess' life to

secure payment. When Hess died not long after the transaction the insurance paid off his loan

to the union. Reid claims that because the same $5,000 was involved in his transaction with

Hess and that he in fact had paid $150 on the Hess loan to the union as payment of his own

obligation that the loan he owed to Hess was extinguished. The trial court ruled instead that

Raymond's obligation to Hess had nothing to do with the Hess loan from the union in the

absence of any specific agreement otherwise, that Raymond and DeAnn still owed the

balance of their loan to the Hess estate and that �� <�*��%��

��89 Nev. 460, 462 (1973) Reid v. Reid��

in the divorce settlement DeAnn was to hold Raymond harmless therefrom. This ruling

constitutes the main thrust of the appeal.

[Headnotes 1-3]

Additional grounds of appeal are without merit. Raymond, for instance, alleges error by

the trial court in excluding testimony that DeAnn participated in adulterous activities eight

years prior to the divorce. Under the circumstances reflected in this record we declare that

period too remote in time to be given serious consideration. Cf. Gabler v. Gabler, 72 Nev.

325, 304 P.2d 404 (1956). The divorce in this case was granted on well-established grounds

of extreme cruelty and no real issue is raised or appears as to the basis of the divorce. Sisson

v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961). Raymond claims the trial court abused its

discretion regarding distribution of the community property but no abuse was shown. Shane

v. Shane, 84 Nev. 20, 22, 435 P.2d 753 (1968); Lockett v. Lockett, 75 Nev. 229, 338 P.2d 77

(1959). Also, although Raymond protests otherwise, the child support of $250 per month for

two children was well within the proper discretion of the trial court. Rosenbaum v.

Rosenbaum, 86 Nev. 550, 471 P.2d 254 (1970); Goodman v. Goodman, 68 Nev. 484, 236

P.2d 305 (1951).

[Headnote 4]

Regarding the debt of $5,000, the trial court found that the obligation was separate and

distinct from that owed to the credit union by Hess. That finding may be implied from the

record and is sufficient to support the judgment. Noble v. Noble, 86 Nev. 459, 470 P.2d 430

(1970).

[Headnotes 5, 6]

The husband's complaint is that by recognizing the $5,000 as a still existing debt the court

created an unbalance in the distribution of the community property. He reasons that because

the wife assumes to pay the $5,000 to her deceased father's estate, the husband receives

correspondingly less in the distribution. (He also claims that his wife won't really be called

upon to pay the money to her father's estate, but we don't know that to be true.) Raymond's

reason for signing the note was to give his father-in-law some protection in the event that he

and DeAnn were killed before the money borrowed from the credit union was repaid, but that

is no defense to the obligation represented by his note to Hess. In the absence of fraud,� ��

��89 Nev. 460, 463 (1973) Reid v. Reid��

mistake, or a lack or failure of consideration, a prior or contemporaneous oral agreement that

a promissory note is not to be payable according to its terms constitutes no defense to an

action on the note. Oakland Medical Bldg. Corp. v. Aureguy, 41 Cal.2d 521, 523, 261 P.2d

249 (1953). Furthermore, here we have only Raymond's personal understanding of the

consequences of the loan transaction with Hess. His payment directly to the credit union on

the Hess obligation is of no significance. An obligation may be discharged by payment to the

lender or to some third person authorized to receive it. Taylor v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 245 A.2d 426 (D.C. App. 1968).

All of the assignments of error were founded upon a claim of trial court abuse of

discretion, but in our review we find that the trial court exercised sound discretion which we

will not disturb.

The court awards DeAnn the sum of $350 for attorney's fees, the actual cost of travel by

air for her counsel, one per diem allowance of $10 and filing fees and any other in court costs

directly related to this appeal.

Affirmed.


____________

��89 Nev. 463, 463 (1973) Glasgow v. Sheriff��

ARCHIE GLASGOW, Appellant, v. SHERIFF,


No. 7475

October 25, 1973 515 P.2d 64

Appeal from an order denying a pretrial petition for a writ of habeas corpus, Eighth

Judicial District Court, Clark County; Leonard I. Gang, Judge.

The Supreme Court held that trial court, which denied motion to amend information

charging petitioner with grand larceny so as to charge cheating at gambling and granted prior

habeas corpus petition, was without jurisdiction to subsequently grant leave to file new

information charging cheating at gambling.

Reversed.





Habeas Corpus.

Where motion to amend information, which charged petitioner with grand larceny, to charge cheating

at gambling was denied and habeas corpus petition was granted, district attorney could have again

submitted charges to a magistrate or to grand jury, but, absent appeal from habeas proceedings or some

proper motion, trial court was without jurisdiction to subsequently grant leave to file new information

charging cheating at gambling. NRS 34.590, 173.095, 205.200, 465.070; DCR 20.

OPINION

Per Curiam:

After a preliminary examination held pursuant to a criminal complaint charging grand

larceny (NRS 205.200), the magistrate ordered appellant held for trial for cheating at

gambling (NRS 465.070). Under the magistrate's commitment order the state filed, as Case

No. 25002, an information in the district court, mistakenly charging appellant with grand

larceny. A pretrial petition for habeas corpus alerted the district attorney to his mistake, and

he immediately moved to amend the information to charge cheating at gambling. The trial

court denied the motion to amend and granted habeas. The correctness of that ruling is not

before us. 1 The district attorney acquiesced therein, and did not appeal.

At this juncture the district attorney could have again submitted charges to a magistrate, or

to a grand jury. Ex Parte Alexander, 80 Nev. 354, 393 P.2d 615 (1964). Cf. NRS 34.590;

McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970). Instead, without notice of motion, he

orally moved for and was granted leave to file a new information, in the same case, charging

cheating at gambling. A second habeas petition challenged the jurisdiction of the trial court

to proceed in the case under the newly filed information. Habeas was denied and this appeal

follows.

Appellant's central contention is that the trial court was without jurisdiction to grant leave

to file a new information. He argues that, when the first habeas petition was granted, further

proceedings in Case No. 25002 were foreclosed. In the circumstances concerned here, we

agree.

____________________

1

Consider: NRS 173.095; Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972).


The first habeas proceedings terminated Case No. 25002, absent an appeal, or some proper

motion after judgment, made on due notice. See, for example, DCR 20. Thus, the second

habeas petition should have been granted, without prejudice to institution of proper

proceedings.

The state shall be allowed 15 days from the issuance of the remittitur in this case to initiate

new proceedings against appellant; McGee v. Sheriff, supra; Ex Parte Alexander, supra; Ex

Parte Smith, 33 Nev. 466, 111 P. 930 (1910); otherwise, he shall be discharged. Cf. Austin v.

State, 87 Nev. 578, 491 P.2d 724 (1971).

Reversed.

____________

��89 Nev. 465, 465 (1973) Cain v. Sheriff��

WILLIS JOSEPH CAIN, Appellant, v. SHERIFF,


No. 7507

October 25, 1973 514 P.2d 1293

Appeal from an order denying a petition for a pretrial writ of habeas corpus, Eighth

Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.

Affirmed.

Morgan D. Harris, Public Defender, and William H. Whitehead, Deputy Public Defender,




OPINION

Per Curiam:

The only cognizable issue in this appeal was considered and rejected in Bain v. Sheriff, 88

Nev. 699, 504 P.2d 695 (1972).


____________

��89 Nev. 466, 466 (1973) Hopper v. Clark County School District��

DAVID L. HOPPER, a Minor, By and Through his Mother, Una M. Hopper, Appellant, v.

CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada,

Respondent.

No. 7077

October 25, 1973 514 P.2d 1294

Appeal from order dismissing action; Eighth Judicial District Court, Clark County; Carl J.

Christensen, Judge.

Action against school district for damages for personal injuries was dismissed by the

district court on the ground that the claim was not filed within six months of accrual of the

cause of action as required by statute. Plaintiff appealed. The Supreme Court held that such

dismissal required reversal where, subsequent to the dismissal, such claim statutes were held

to be unconstitutional.


Wiener, Goldwater & Galatz, Ltd., and J. Charles Thompson, of Las Vegas, for Appellant.

Rose, Norwood & Edwards, Ltd., of Las Vegas, for Respondent.

Appeal and Error.

Dismissal of action against school district for damages for personal injuries, on ground that claim was

not filed within six months of accrual of cause of action as required by statute, required reversal where,

subsequent to dismissal, such claim statutes were held to be unconstitutional. NRS 41.036, subd. 2.

OPINION

Per Curiam:

This action to recover damages for personal injuries was dismissed for failure of the

plaintiff to file a claim within six months of the accrual of his cause of action as mandated by

NRS 41.036(2). Subsequent to that dismissal, this court handed down Turner v. Staggs, 89

Nev. 230, 510 P.2d 879 (1973), which held such claim statutes to be unconstitutional. By

reason of that decision we are compelled to reverse and remand for further proceedings.

____________

��89 Nev. 467, 467 (1973) Johnson v. Travelers Insurance Co.��

JACK JOHNSON, LAWNA P. HAMILTON, NEIL LEVER, and Every Other Person

Similarly Situated in the Same or Similar Class, Appellants, v. GROUP A. DEFENDANT

CLASS: TRAVELERS INSURANCE COMPANY Sued Herein as Representative of the

Class Constituting Every Other Health and Accident Insurance Company Licensed to Do

Business in the State of Nevada Situated in the Same or Similar Class, Classes or

Sub-Classes, Numbering 565, Such Companies Named in the Attached Plaintiffs' Exhibit No.

1., GROUP B. DEFENDANT CLASS: DOCTOR THOMAS W. KAVANAGH; DOCTOR

WESLEY W. HALL, VICE-PRESIDENT OF THE AMERICAN MEDICAL

ASSOCIATION Through its Division the NEVADA STATE MEDICAL ASSOCIATION

and all its Members Therein Both Individually and as Members of Said Association Sued

Herein as Representatives of the Class of Defendants set Forth Herein as Class Member

Doctors JOHN DOE 1 Through 221,000, and Every Other Doctor Similarly Situated in the

Same or Similar

Class, Respondents.

No. 7014

October 29, 1973 515 P.2d 68

Appeal from an order dismissing this action as a class action. Second Judicial District

Court, Washoe County; Emile J. Gezelin, Judge.

Action by insured against group health insurer and physician for insured and for others

similarly situated, purporting to state a claim for relief as a class action. The district court

dismissed the action as a class action, and appeal was taken. The Supreme Court, Thompson,

C. J., held that the common question of law or fact was not present, as required by class

action rule, since claim for breach of group insurance contract would require examination of

each claimant's understanding of the contract, and would inevitably deteriorate into multiple

lawsuits unsuited for the purposes of class action rule.

Affirmed.

[Rehearing denied January 3, 1974]

Kermitt L. Waters, of Las Vegas, for Appellants.

Wait, Shamberger & Georgeson, of Reno, for Respondents.


1. Pleading. A complaint must allege facts sufficient to establish all necessary elements of a claim for relief.

2. Insurance. Complaint of insured against group health insurer, which alleged no more than that the doctor's bill was

presumed reasonable and that the insurer, therefore, should have paid 75 percent thereof under contract

with insured, was insufficient to allege a breach of contract.

3. Parties. Common question of law or fact was not presented, as required by class action statute, wherein the

context of a class suit the claim for breach of group insurance contract would require an examination of

each claimant's understanding of the contract and would inevitably deteriorate into multiple lawsuits

unsuited for the purposes of class action rule. NRCP 23.

4. Parties. As a general rule a class suit to recover damages for fraud allegedly practiced by numerous persons is not

warranted, since the inherent uniqueness of misrepresentation actions make it difficult to find central facts

susceptible of proof on a common basis. NRCP 23.

5. Parties. Existence of separate issues concerning damages sustained by various class members would not provide a

common issue of liability from being adjudicated on a class basis, since the matter of individual damages

could be postponed to a later date and a master appointed. NRCP 23.

OPINION


This action against Travelers Insurance Company and Dr. Thomas W. Kavanagh was

commenced by Jack Johnson for himself and for others similarly situated, and purports to

state a claim for relief as a class action under NRCP 23. Upon motion of the defendant

Travelers it was dismissed as a class action, but without prejudice for the plaintiff to

otherwise proceed. Since the order of dismissal determined only the legal insufficiency of the

complaint as a class suit, it is tantamount to a dismissal as to all members of the alleged class

other than the plaintiff. Consequently, this appeal is from a final judgment on that aspect of

the case. Daar v. Yellow Cab Company, 433 P.2d 732 (Cal. 1967). The propriety of the order

of dismissal rejecting the complaint insofar as it purports to state a claim for relief as a class

action under Rule 23 is the sole subject of this appeal.

The claim for relief which Johnson has asserted against 4��


Travelers is for breach of the insurance contract, and for fraudulent misrepresentation with

regard to the obligations of the insurance company under that contract, and arises from the

following alleged circumstances.

As an employee of the State of Nevada, Johnson was insured by Travelers under a

comprehensive, open-end group health policy. While so employed, he was injured in an

automobile accident as a consequence of which he incurred a doctor bill in the amount of

$400. The insurance contract obligated Travelers to pay him 75 percent of all “covered

medical expenses” over a $50 deductible up to a maximum of $10,000. The contract defined

“covered medical expenses” as “reasonable charges incurred on account of yourself or your

dependent upon the recommendation and approval of the attending physician for the services

and supplies listed below and required in connection with the treatment for an injury or

sickness. The extent that a particular charge is reasonable shall be measured and determined

by comparing it with the charges made for similar services and supplies to individuals of

similar age, sex, circumstances and medical condition in the locality concerned, and the result

of such determination shall constitute the maximum allowable as covered medical expenses.”

Travelers refused to pay 75 percent (over the deductible) of the $400 doctor bill submitted

by Johnson since, in the opinion of Travelers, the amount of the bill was unreasonable.

Consequently, Travelers paid approximately 50 percent thereof.

The alleged breach of the insurance contract rests upon the premise that the doctor's bill is

presumed to be reasonable, and that Travelers disregarded that presumption and arbitrarily

paid a lesser sum.

The claim for relief for fraudulent misrepresentation is bottomed on the proposition that

Travelers represented that it would pay 75 percent of reasonable doctor bills, without

disclosing its practice of disregarding such bills as submitted. Reliance upon that

representation also is alleged. 1

As a general proposition, it is Johnson's contention that Travelers, along with 565 other

insurance companies licensed to write group health and accident insurance in Nevada, engage

in an industry-wide practice of deceiving their insureds in that such companies automatically

fail to pay the percentage of �� >��=(��'/��?��

____________________

1

By his reply brief the plaintiff has conceded that his alternative claim for relief against Dr. Kavanagh and

the Group B defendant class of doctors may be dismissed. Consequently, this opinion will not treat that aspect of

this case.


coverage stated in their group insurance contracts (usually 75 percent or 80 percent) of the

actual medical and doctor bills incurred by their insureds, and that this practiced deception

upon the policyholders is an appropriate subject of a class suit.

He alleges that Travelers is representative of all other health and accident insurance

companies licensed in Nevada, the Group A defendant class, and that Travelers will

adequately represent their interests in this litigation.

He proposes to bring this action on behalf of all present and former holders of health and

accident insurance with one or more of the insurance companies designated in the Group A

defendant class, and who have made claims and have been refused payment of the stated

percentage of the face amount of doctor bills submitted.

Finally, and in conclusory form, the prerequisites to a class action specified in NRCP 23

are alleged. 2

1. Deceptive business practices may cause damage to individual consumers in relatively

small amounts, although the aggregate injury may be enormous. Among other things, Rule 23

recognizes the need for a method to redress wrongs otherwise irremediable because the

individual claims are too small ��

____________________

2

Rule 23.

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there

are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect

the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would

establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be

dispositive of the interests of the other members not parties to the adjudications or substantially impair or

impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as

a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over

any questions affecting only


or the claimants too widely dispersed. It allows one or more representatives of a class to sue

on behalf of other similarly situated and obtain a judgment that will bind all, thereby reducing

the number of suits that might arise from a single wrong to many individuals. The aim of the

rule obviously is worthwhile. However, difficulty frequently is encountered in deciding

whether a particular action falls within its ambit.

The Rule requires a plaintiff who would institute a class action to satisfy the preconditions

of 23(a), and also show that his action is appropriate under one of the three subdivisions of

23(b). In the case at hand, Johnson asserts that he has satisfied all prerequisites. Although

conceding that “the class is so numerous that joinder of all members is impracticable,” 23(a)

(1), Travelers denies that other preconditions are met, and particularly presses the contention

that questions of law or fact common to the class do not exist, 23(a)(2), or, if some such

questions do exist, they do not predominate over questions affecting only individual

members, 23(b)(3). As we see it, this point is central to the case and dispositive of this

appeal.

2. With regard to the breach of contract claim, it is the contention of Travelers that there is

not, nor can there be, a common question of law or fact, since the group insurance policy

requires Travelers to decide the reasonableness of a doctor's charge by comparing it with

“charges made for similar services to individuals of similar age, sex, circumstances and

medical condition in the locality concerned.” These several factors, each bearing on the issue

of the reasonableness of the charge, requires an individual assessment in each instance with

the inevitable consequence that the reasonableness of a particular bill is not necessarily

probative of the reasonableness of others, nor, indeed, as to whether a contractual duty was

breached.

[Headnotes 1-3]

The complaint before us does not allege that Travelers failed to determine reasonableness

of the bill in the manner �� @��+�� 4�� =(��

____________________

individual members, and that a class action is superior to other available methods for the fair and efficient

adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the

class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any

litigation concerning the controversy already commenced by or against members of the class; (C) the desirability

or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to

be encountered in the management of a class action.


contemplated by the insurance policy. 3 It alleges no more than that the doctor's bill is

presumed to be reasonable and that Travelers, therefore, should have paid 75 percent thereof.

This, in our view, does not allege a breach of contract. Although we are mindful that a motion

to dismiss admits all material and issuable facts properly pleaded [Hansen-Neiderhauser, Inc.

v. Nevada State Tax Comm'n, 81 Nev. 307, 402 P.2d 480 (1965); Chapman v. City of Reno,

85 Nev. 365, 455 P.2d 618 (1969)], the complaint must, in any event, allege facts sufficient to

establish all necessary elements of the claim for relief, Danning v. Lum's, Inc., 86 Nev. 868,

478 P.2d 166 (1970). Moreover, in the context of a class suit, the claim for breach of the

group insurance contract would require an examination of each claimant's understanding of

the contract and would inevitably deteriorate into multiple lawsuits unsuited for the purposes

of Rule 23. Cf. Bailey v. Sabine River Authority, State of Louisiana, 54 F.R.D. 42 (W.D.La.

1971). A common question of law or fact is not present in these circumstances.

[Headnote 4]

3. As a general proposition, it is fair to state that a class suit to recover damages for fraud

allegedly practiced upon numerous persons is not warranted. Cases collect. Annot., 114

A.L.R. 1015. The inherent uniqueness of misrepresentation actions makes it difficult to find

central facts susceptible of proof on a common basis. What was the form of the

misrepresentation; were the identical false representations made to each member of the class;

did each member participate in the group insurance plan in reliance upon those

misrepresentations, and was each damaged thereby? These, and perhaps other factors, serve

to explain the difficulty inherent in finding a common question of fact or law when the charge

is fraudulent misrepresentation.

This is not to say, however, that a representative suit for collective deceit may never be

maintained. 4 However, a common thread running through those cases and others is that the��# �� +��

____________________

3

In other documents it is asserted that Travelers utilized relative value study tables prepared by the California

Medical Association, instead of deciding reasonableness in the manner specified by the insurance policy. We do

not consider this assertion since it is not part of the complaint.

4

Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968); Green v. Wolf Corporation, 406 F.2d 291 (2nd Cir. 1968);

Vasquez v. Superior Court of San Joaquin County, 484 P.2d 964 (Cal. 1971); Daar v. Yellow Cab Co., 433 P.2d

732 (Cal. 1967); Kronenberg v. Hotel Governor Clinton, Inc., 41 F.R.D. 42 (S.D.N.Y. 1966); Dolgow v.

Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968); Harris v. Palm Springs Estates, Inc., 329 F.2d 909 (9th Cir. 1964),

are illustrative cases.


fraud element existed and pervaded the transaction at the time of the consumer's purchase.

Averments of the circumstances constituting fraud shall be stated with particularity. NRCP

9(b). There is no claim in the complaint before us of any fraud that existed and pervaded the

transaction at the time the plaintiff and others elected to participate in the group insurance

plan. The insurance contract attached to the complaint as an exhibit specifies the company's

obligation and allows it to decide the reasonableness of a charge by comparing it with

“charges made for similar services to individuals of similar age, sex, circumstances and

medical condition in the locality concerned.” It is not alleged that the company represented

otherwise. No facts are pleaded to suggest that the company did not determine reasonableness

by utilization of the designated standard. Neither is it suggested that representations at

variance with the insurance contract as written were made to members of the group insurance

plan.

The true basis of the claim of Johnson and those whom he purports to represent is that the

participants in the group plan expected to receive 75 percent of the bills submitted even

though a study of the insurance contract would not necessarily foster those expectations. This

does not qualify as fraud or misrepresentation on the part of the insurance company. It is

beyond the pale of reason to base a charge of fraud in the payment of claims upon conduct by

the company which apparently falls within the authorization of the language of the insurance

contract. Moreover, if we were to consider the subject of the reasonable expectations of the

participants in the plan, we necessarily would be forced to decisions on individual basis, thus

destroying the commonality of issues required in a class suit.

[Headnote 5]

4. Much of the argument on this appeal was addressed to the point that the action is not

maintainable as a class action because there does not exist a common question of fact with

respect to the amount of damages incurred among the members of the plaintiff class.

Although it may be true that courts are more hesitant to find the common question

requirement satisfied when the class seeks damages than when it seeks injunctive relief

(Weinstein—Some Problems in Class Actions, 9 Buffalo L.Rev. 433 (1960)), the more recent

cases appear to hold that the existence of separate issues concerning the damages sustained by

various class members do not prevent a common issue of liability from being adjudicated on

a class ��


basis. Green v. Wolf Corporation, 406 F.2d 291 (2nd Cir. 1968); Eisen v. Carlisle &

Jacquelin, 391 F.2d 555 (2nd Cir. 1968); Alameda Oil Company v. Ideal Basic Industries,

Inc., 326 F.Supp. 98 (D.C.Colo. 1971); Daar v. Yellow Cab Co. 433 P.2d 732 (Cal. 1967);

Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968). The matter of individual damages may

be postponed to a later date, and a master appointed. Dolgow v. Anderson, supra.

5. Since we do not perceive a common question of law or fact on the issue of alleged

liability in this case, we affirm the dismissal of this action as a class action.


____________

��89 Nev. 474, 474 (1973) Babich v. Sheriff��

BRAD SIMON BABICH, Also Known as BRAD GENTRY and ROBERT B. GENTRY, and

JAMES MERRITT JOHNSON, Appellants, v. SHERIFF, LANDER COUNTY, NEVADA,

Respondent.

No. 7404

October 29, 1973 514 P.2d 1293

Appeal from an order denying pretrial petition for habeas corpus, Third Judicial District

Court, Lander County; John F. Sexton, Judge.

Defendants accused of second degree arson and burning insured property filed pretrial

petition for habeas corpus. The district court denied the petition and defendants appealed. The

Supreme Court held that testimony as to uncorroborated statements of defendants' accomplice

was insufficient to establish the probable cause necessary to allow the state to hold defendants

for trial.

Reversed and remanded, with directions.


Harry E. Claiborne, of Las Vegas, for Appellant Babich.

Douglas G. Crosby, of Las Vegas, for Appellant Johnson.

Robert List, Attorney General, Carson City; and T. David Horton, District Attorney,

Lander County, for Respondent.

��89 Nev. 474, 475 (1973) Babich v. Sheriff��

Criminal Law.

Testimony of narcotic agent as to uncorroborated statement of defendants' accomplice was insufficient,

even if admissible, to establish probable cause necessary to allow state to hold defendants for trial on

charges of second degree arson and burning insured property. NRS 51.015 et seq., 175.291, 205.020,

205.030.

OPINION

Per Curiam:

After preliminary examination, a magistrate held appellants to stand trial for second degree

arson (NRS 205.020), and burning insured property (NRS 205.030). Petitions for habeas

relief challenged the sufficiency of the evidence to show probable cause, contending that the

only direct evidence against appellants was that given by a federal narcotic agent who over

objection, testified that one Fletcher, an admitted accomplice in the charged offense had told

him, in February 1972, that appellants were involved in the charged crimes. The alleged

offenses occurred in early August 1971, over seven months before the statement was given to

the narcotic agent.

Respondent does not challenge the fact that Fletcher was an accomplice and agrees that the

testimony of the narcotic agent was hearsay; however, it urges that such testimony was

admissible under NRS 51.015 et seq., because Fletcher, the accomplice, was out of state and

unavailable to testify. We need not decide whether the testimony of the narcotic agent was

admissible because, even if we were to assume such testimony to be admissible, the record

before us is barren of any other evidence to corroborate the testimony of the accomplice as

required by NRS 175.291. See Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971). Excluding

the incriminating statement of Fletcher as related by the narcotic agent, nothing in the record

before us connects either appellant with the charged crimes.

Accordingly, we reverse the order of the trial court, and order appellants freed from

custody unless, within fifteen days time, the state elects to bring new charges.

____________

��89 Nev. 476, 476 (1973) Johnson v. Warden��

MATT JOHNSON, Jr., Appellant, v. WARDEN,


No. 7063

October 29, 1973 515 P.2d 63

Appeal from an order denying a petition for post-conviction relief; Eighth Judicial District


After being convicted of robbery, a state prisoner brought an action for post-conviction

relief. The district court denied the petition, and the prisoner appealed. The Supreme Court,

Mowbray, J., held that the Supreme Court would henceforth consider as waived those issues

raised in a post-conviction relief application which might properly have been raised on direct

appeal, where no good cause is shown for petitioner's failure to present such issues, and that,

where the prisoner in the petition before it was merely urging that the evidence adduced at

trial, which he had contended on his direct appeal to be insufficient to establish guilt, was

insufficient for constitutional reasons, petition did not state good cause.

Affirmed.

Gary Sheerin, Nevada State Public Defender, Carson City, for Appellant.


Charles A. Garner, Chief Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. Supreme Court will consider as waived those issues raised in post-conviction relief application which

might properly have been raised on direct appeal where no reasonable explanation is offered for petitioner's

failure to present such issues on appeal. NRS 177.315-177.385, 177.375.

2. Criminal Law. Petitions for post-conviction relief are not precluded under all circumstances where appeal had already

been taken; such petitions may be entertained where petitioner has shown good cause for his failure to raise

such claims in prior proceeding. NRS 177.375.

3. Criminal Law. Where petitioner for post-conviction relief did not show good cause for omitting from prior appeal issues

urged for consideration of court in petition, and merely urged that evidence at original trial, claimed on

direct appeal to be insufficient to establish guilt, �� 1��


was insufficient for constitutional reasons, post-conviction relief was properly denied. NRS

177.315-177.385.

OPINION


Matt Johnson, Jr., was tried to a jury and convicted in 1970 for the crime of robbery. He

was sentenced to a term of 5 years in prison. NRS 200.380. His conviction on appeal to this

court was affirmed. Johnson v. State, 87 Nev. 364, 486 P.2d 493 (1971). Thereafter, on May

30, 1972, Johnson filed a petition pursuant to the Post-Conviction Relief Act (NRS

177.315-NRS 177.385), asserting as error the violation of certain of his constitutional rights. 1

The petition was denied after a hearing in the lower court, and it is from that denial that

Johnson now appeals.

This court has refused successive writ applications under the Post-Conviction Relief Act

where the petitioner has failed to explain in his later application for relief why the grounds

that had been previously available to him were not asserted in his “original, supplemental or

amended petition.” Rogers v. Warden, 86 Nev. 359, 362, 468 P.2d 993, 994 (1970).

[Headnote 1]

Members of this court have urged, and we now hold, that this court will consider as

waived those issues raised in a post-conviction relief application which might properly have

been raised on direct appeal, where no reasonable explanation is offered for petitioner's

failure to present such issues. See concurring opinion of Justice Zenoff, Nall v. Warden, 86

Nev. 489, 491, 471 P.2d 218, 219 (1970); Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971).

[Headnotes 2, 3]

Petitions for post-conviction relief are not precluded under all circumstances where an

appeal has already been taken.

____________________

1

The petition is predicated upon 6 alleged violations: 1) that he was arrested without probable cause; 2) that

he was held in custody in derogation of his constitutional rights before being taken before a magistrate; 3) that he

was forced to participate in an unduly suggestive lineup without presence of counsel; 4) that he was appointed

incompetent counsel at trial; 5) that he was denied a fair and impartial trial; and 6) that the jury was not a fair

cross section of the community, in that Blacks were systematically excluded from the jury panel.


Such petitions may be entertained where the petitioner has shown good cause for his failure

to raise such claims in the prior proceeding. NRS 177.375. 2 In the instant case, Johnson does

not allege or show good cause for omitting from the prior appeal the issues now urged for

consideration by this court. The evidence originally urged to be insufficient to establish guilt

is now urged to be insufficient for constitutional reasons. There is no reason why both

allegations could not have been raised at the same time.

The claimed errors existed at the time of appeal and should have been urged then and not

in this post-conviction petition; accordingly, we affirm the decision of the lower court.


____________________

2

NRS 177.375:

“1. If the petitioner's conviction was upon a plea of guilty, all claims for post-conviction relief are waived

except the claim that the plea was involuntarily entered.

“2. If the petitioner's conviction was the result of a trial, all claims for post-conviction relief are waived

which were or could have been:

“(a) Presented to the trial court;

“(b) Raised in a prior petition for post-conviction relief; or raised in any other proceeding that the petitioner

has taken to secure relief from his conviction or sentence, unless the court finds good cause shown for the failure

to present such claims.”

____________

��89 Nev. 478, 478 (1973) State ex rel. Johns v. Gragson��

STATE OF NEVADA ex rel. ROBERT THOMAS JOHNS, Appellant, v. ORAN

GRAGSON, Mayor; The Four City Commissioners—HANK THORNLEY, ALEXANDER

COBLENTZ, M.D., GEORGE F. FRANKLIN, Jr., HAL F. MORELLI; and THE BOARD

OF ZONING ADJUSTMENT, CITY OF LAS VEGAS—Chairman HAGGARD, MR.

HANES, MR. PYES, MR. O'BRIEN, and MR. REINHARDT, Respondents.

No. 7141

October 29, 1973 515 P.2d 65

Appeal from order and judgment of the Eighth Judicial District Court, Clark County,

denying relief sought by petition for writ of mandamus and quashing alternative writ of

mandamus; Clarence Sundean, Judge.

Petition for writ of mandamus challenging action of city board of zoning adjustment and

city commissioners terminating ��


home occupation permit. The district court denied petition for writ, and plaintiff appealed.

The Supreme Court, Mowbray, J., held that opinions voiced by city commissioners did not

constitute valid grounds for revocation of home occupation permit and that such revocation

was not justified and was an abuse of discretion.

Reversed with instructions.

Larry C. Johns, of Las Vegas, for Appellant.

Carl E. Lovell, City Attorney, and Janson F. Stewart, Deputy City Attorney, Las Vegas,

for Respondents.

1. Zoning. Even if statements by city commissioners regarding home occupation permit granted to property owner

were construed as the official position of the commission, absent supporting proof, they did not constitute

valid grounds for revocation of permit under ordinance which provided that city board of zoning

adjustment had power to grant a home occupation permit provided there was no tangible evidence that

occupation was being carried on in neighborhood, home occupation was clearly incidental and secondary

to residential use of property and home occupation would not be injurious, harmful, detrimental or

obnoxious to neighborhood.

2. Administrative Law and Procedure; Municipal Corporations. Review of administrative decisions by the district court and by the Supreme Court is limited to record

made before administrative tribunal, and in absence of a showing that agency acted fraudulently or

arbitrarily, district court may not substitute its opinion for that of the city commissioners.

3. Administrative Law and Procedure. Where decision of administrative body is arbitrary, oppressive or accompanied by manifest abuse,

Supreme Court will not hesitate to interfere.

4. Zoning. Where only evidence before city board of zoning adjustment showed that no complaints regarding

property owner's operation of printshop in converted garage of his home under home occupation permit

had been received and that status of operation had not changed since permit was granted and where

property owner offered documents at meeting of city commission showing that other property owners in

neighborhood had no objections to the continuance of permit, revocation of permit was not justified and

was an abuse of discretion.

OPINION


On October 29, 1971, after a public hearing and the receipt of appropriate fees from the

applicant, the Board of Zoning *�� -��G�� %��4�


Adjustment of the City of Las Vegas determined that appellant, Robert T. Johns, had

complied with the provisions of Las Vegas City Code § 11-1-24(C) and granted him a home

occupation permit pursuant thereto. 1

The permit allowed Johns to maintain a print shop in the converted garage of his home in

Las Vegas and was granted on three conditions: 1) If a complaint was received regarding the

operation, the surrounding property owners would be notified, the Board would conduct a

review, and the approval might be rescinded; 2) there was to be no advertising; and 3) �� A�� "��

____________________

1

Las Vegas City Code § 11-1-24(C), in relevant part:

“(C) Home Occupation Permits:

“1. Purpose: The sole purpose of any home occupation permit shall be to allow a person or persons to be

gainfully employed within the confines of his own home in an area zoned for residential uses, provided said

home occupation can be carried on without tangible evidence of same being apparent to the particular

neighborhood and provided further, that such home occupation is clearly incidental and secondary to the use of

the property for residential purposes and provided further, that said home occupation will in no way whatsoever

be injurious, harmful, detrimental or obnoxious to the neighborhood. (Ord. 927; 9-26-62)

“2. Criteria: In determining whether to grant or deny a home occupation permit, the Board of Zoning

Adjustment shall be guided by the following criteria:

“(a) Will there be any employees?

“(b) Does the occupation involve the use of material and/or equipment not normally associated with

residential neighborhoods?

“(c) Will there be any buying or selling of any commodities, services, or goods on the premises?

“(d) Does the occupation involve the use of any commercial vehicle?

“(e) Will there be any advertising, either in the form of signs, telephone directory or newspapers?

“(f) Will more than one room of the house be used?

“(g) Will the occupation involve the use of any accessory building, yard space or outdoor activity?

“(h) Does the occupation require the transportation of goods and/or clients to and from the home; [sic]

thereby creating pedestrian and/or vehicular traffic?

If the answer to any of the above questions is in the affirmative, the use should not normally be permitted as a

home occupation. If the answer to questions (a), (b), (c), (g), or (h) are [sic] affirmative, the Board of Zoning

Adjustment must conduct a public hearing.

Notwithstanding the criteria listed above, if the Board determines that the granting of a home occupation permit,

as applied for, will be detrimental in any way to the public health, safety and welfare or injurious in any way to

the property in the same zoning district or neighborhood in which the property in question is located, the Board

shall deny the permit. (Ord. 1533; 9-15-71)”


there was to be an automatic review by the Board in 6 months to determine the status of the

operation.

On April 27, 1972, Johns' permit was reviewed by the Board, which then voted, without

indicating the reasons therefor, to terminate the permit effective July 27, 1972. The decision

was appealed to the Las Vegas City Commissioners, who, at a public hearing held June 21,

1972, orally affirmed the decision of the Board, again without giving Johns the reasons for

this denial.

On July 24, 1972, Johns filed a petition for a writ of mandamus challenging the action of

the Board and the City Commissioners. The district court issued an alternative writ of

mandamus on that same day, and a hearing on the peremptory writ was conducted on

September 21, 1972. After the hearing, the trial court, without making any findings, rendered

its decision ordering that the petition for writ of mandamus be denied and the alternative writ

quashed. The present appeal is from this order.

The Board's decision-making process is confined by standards set forth in the ordinance

establishing the Board, and within these limits the Board carries out a discretionary task. In

the instant case, the Board had the power to grant Johns a home occupation permit, provided:

(1) there was no tangible evidence that the occupation was being carried on in the

neighborhood, (2) the home occupation was clearly incidental and secondary to the residential

use of the property, and (3) the home occupation would in no way be injurious, harmful,

detrimental or obnoxious to the neighborhood. Las Vegas City Code § 11-1-24(C), supra.

A fair reading of the record, including the minutes of the Board of Zoning Adjustment and

the City Commission, demonstrates a patent abuse of discretion by these bodies. At the April

27, 1972, meeting of the Board, it was uncontroverted that no complaints regarding Mr.

Johns' operation had been received, nor had the status of Mr. Johns' operation changed since

the original permit was granted. The minutes reflect that this was the only evidence before the

Board; nevertheless, a motion to revoke the home occupation permit after a period of 90 days

was unanimously passed. No reasons for the revocation of the permit were stated, and none

appear in the record before this court.

[Headnote 1]

The minutes of the regular meeting of the Las Vegas City �� 8��&�� =&��


Commission on June 21, 1972, also fail to show any justification for the revocation. The only

“evidence” supporting revocation of the permit consisted of opinions voiced by the

Commissioners. Even if such statements were construed as official positions of the

Commission, they do not constitute valid grounds for denial under the ordinance, absent

supporting proof. On the other hand, appellant offered a document signed by the property

owners in his neighborhood indicating that they had no objection at all to the continuance of

the permit. 2

This court stated in City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118,

122, 359 P.2d 743, 745 (1961):

“. . . Respondent, as plaintiff before the trial court, was required to establish abuse of

discretion on the part of the city council in the denial by that body of respondent's application

for a use permit. Such showing of an abuse of the discretion vested in the council was

established before the trial court by respondent's showing of a lack of substantial evidence

before the council, which served as a basis for its action in denying respondent's application.

Concededly, the action taken by the city council in its administrative capacity, upon the

matter properly before it, would not warrant interference by the trial court except where there

was a manifest abuse of discretion. Here, however, where there was no evidence to support

the council's actions, the trial court's action [issuing a peremptory writ of mandate] was

proper. [Citations omitted.] The exercise of discretion by the city council as an administrative

board, [sic] could not be sustained in court on the basis of conclusions reached by the city

council in the absence of circumstances which reasonably justified such conclusions.

[Citation omitted.]”

[Headnotes 2-4]

The review of administrative decisions by the district court and this court is limited to the

record made before the administrative tribunal, and in the absence of a showing that the

agency acted fraudulently or arbitrarily, the district court may not substitute its opinion for

that of the city commissioners. City of Reno v. Folsom, 86 Nev. 39, 464 P.2d 454 (1970);

Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d !""�>� "@?5�;�F��K ��==�$��&@=��@"&�:�&�&"'�>� "�?5�� *��3�� 5�$��4�#��+��

____________________

2

The document read as follows:

“We, the undersigned, are neighbors of Robert T. Johns and understand that he is appealing for an extension

of his home use permit to allow a printing operation in his garage. We, the undersigned, wish to make known,

[sic] that we have no objections whatsoever. The operation of his business creates no excessive noise, no heavy

traffic, etc., or any other adverse conditions to this residential neighborhood.”


466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961); City of Henderson v.

Henderson Auto Wrecking Inc., supra; Nevada Tax Comm'n v. Hicks, 73 Nev. 115, 310 P.2d

852 (1957). The record in the instant case is void of any evidence to support the ruling

revoking Johns' home occupation permit. In such a case, therefore, where the decision of an

administrative body is arbitrary, oppressive, or accompanied by manifest abuse, this court

will not hesitate to interfere. City of Henderson v. Henderson Auto Wrecking, Inc., supra;

State ex rel. Roman Catholic Bishop v. Hill, 59 Nev. 231, 90 P.2d 217 (1939).

Accordingly, the judgment of the district court is reversed, and the court below is directed

to issue a writ of mandate to respondents reinstating appellant's home occupation permit. See

City of Henderson v. Henderson Auto Wrecking, Inc., supra; State ex rel. Roman Catholic

Bishop v. Hill, supra.


____________

��89 Nev. 483, 483 (1973) Sala & Ruthe Realty, Inc. v. Campbell��

SALA & RUTHE REALTY, INC., a Nevada Corporation,

Appellant, v. D. W. CAMPBELL, Respondent.

No. 6905

November 2, 1973 515 P.2d 394

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Leonard I.

Gang, Judge.

Real estate broker brought action for commission against property owner and the district

court entered judgment in favor of property owner and real estate broker appealed. The

Supreme Court, Batjer, J., held that where prospective purchaser's obligation to buy was

contingent upon completion of inventory and accounting, contingency was a condition

precedent, and where inventory and accounting were never completed, no mutuality of

obligation between purchaser and vendor had ever existed such as would have created a

contract which would have entitled broker to commission.

Affirmed.

Boyd, Leavitt & Freedman, of Las Vegas, for Appellant.

Michael L. Hines, of Las Vegas, for Respondent.


1. Brokers. Where prospective purchaser conditioned purchase upon his approval of inventory and accounting,

broker did not bring a purchaser who was ready, willing, and able to buy property on terms on which the

broker was authorized to sell, and was not entitled to commission based on its listing agreement.

2. Brokers. Document entitled “offer and acceptance agreement” which, by its terms, did not bind the purchaser until

he approved an accounting and inventory, did not entitle broker to commission when purchaser failed to

complete accounting and inventory.

3. Contracts. Document which did not bind purchaser until he had approved accounting and inventory could not bind

vendor before accounting and inventory were completed.

4. Contracts. Where purchaser's obligation to purchase was contingent upon his approval of inventory and accounting

within ten days, contingency was a condition precedent to the existence of contract for sale and purchaser's

purported promise to purchase was illusory.

5. Contracts. “Mutuality of obligation” requires that unless both parties to a contract are bound, neither is bound.

6. Brokers.

Where purchaser's obligation to purchase was contingent upon completion of inventory and accounting

which were never completed, mutuality of obligation never arose between vendor and purchaser and no

binding contract ever existed such as would entitle broker to commission.

OPINION


This is an action for the recovery of a real estate broker's fee. The trial court, sitting

without a jury, found against the appellant. Judgment was entered accordingly for the

respondent, denying the appellant a broker's commission.

Several days prior to September 28, 1969, Brownlee Rostron, a salesman for the appellant

realty company, had been in contact with D. W. Campbell and his wife, the owners of the

Aloha Motel in Las Vegas, Nevada. Rostron indicated to D. W. Campbell that if a

prospective buyer for the motel should turn up he would like an exclusive listing to sell the

property.

On Sunday, September 28, 1969, Rostron went to the Aloha Motel, contacted D. W.

Campbell, informed him that he had a purchaser and presented, for his signature, an exclusive

listing agreement. Campbell signed the agreement and took it to his wife for her signature,

however, she was busy at the time ��


and did not sign. Campbell, an ex-realtor, expressed the desire to have his wife sign inasmuch

as she was a joint owner of the motel, but Rostron insisted that Mrs. Campbell's signature was

not necessary and Campbell finally acceded and delivered the agreement to Rostron.

Later that same day Rostron returned to the motel with a conditional offer to purchase the

motel property executed by the prospective buyer. The offer was not on the same terms and

conditions as the listing agreement and was conditioned upon the buyer's approval of an

inventory and accounting within ten days from the date of the offer.

On September 30, 1969, the respondent executed the document entitled “offer and

acceptance agreement” which contained the buyer's conditional offer to purchase the motel

property, as well as a receipt for $1,000 deposited by the buyer with the appellant “to secure

and apply to the purchase.” Mrs. Campbell never signed the document and the record

indicates that she never intended to sign it. Later, the exact date not being recalled, the taking

of an inventory by the prospective buyer was begun, but was terminated before completion.

Neither an inventory nor an accounting was ever approved by the buyer within the ten days

specified, or at any time thereafter.

Although a clause in the listing agreement read: “In consideration of the above listing and

authorization, the undersigned Realtor or his representative agrees to use diligence in his

efforts to bring about a sale, lease or exchange of subject property,” the appellant made no

effort to obtain Mrs. Campbell's signature or to obtain the purchaser's approval of the motel's

accounting books. When the taking of the inventory terminated after only partial completion,

the appellant made no further efforts to have it finished and approved by the buyer. Instead,

on September 30, 1969, the day on which the respondent signed the document entitled “offer

and acceptance agreement,” and before any attempt was made to inventory the motel

property, an attorney representing the appellant made a demand upon the respondent and his

wife for the full amount of the claimed commission.

The appellant asserts that the trial court erred in denying its claim for a real estate broker's

commission because a husband who owns real property as a joint tenant with his wife, has the

power to execute a binding agreement listing such jointly held property for sale with a broker,

and the wife's subsequent refusal to execute documents of sale could not deprive the real

estate broker of a commission.


The trial court did conclude that the appellant was not entitled to a commission because its

salesman knew, or should have known, that the respondent's wife as a joint owner of the

motel property could thwart the sale. However, we need not determine the validity of that

ruling.

In Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93 (1959), this court adopted the rule that:

“. . . [A] real estate broker has earned his commission when he has brought to the vendor a

purchaser who is ready, willing and able to buy the property upon the terms on which the

agent is authorized to sell, or when a written contract upon any terms acceptable to the seller

has been entered into with a purchaser originally brought to the vendor by the agent.” 75 Nev.

at 326.

[Headnotes 1-3]

Here the appellant did not bring a buyer who was ready, willing and able to buy the

property on the terms which the appellant was authorized to sell. Instead the prospective

buyer conditioned the sale upon his approval of an inventory and accounting, and therefore

the appellant was not entitled to a commission based upon its listing agreement. 1 Neither

was the appellant entitled to its commission on the theory that both the seller and buyer had

signed the document entitled “offer and acceptance agreement.” By its terms, that document

did not bind the buyer until he approved the accounting and inventory, and hence it could not

bind the seller. The buyer retained the key to the transaction. See Morrill v. Tehama M. & M.

Co., 10 Nev. 125 (1875); McCone v. Eccles, 42 Nev. 451, 181 P. 134 (1919). He was free to

approve or disapprove the inventory and accounting or to allow the offer to terminate by the

expiration of the ten day period. Cf. Jackson v. Primadonna Hotel, Inc., 80 Nev. 454, 396

P.2d 28 (1964); Widett v. Bond Estate, Inc., 79 Nev. 284, 382 P.2d 212 (1963).

[Headnotes 4, 5]

The purported buyer's approval of an inventory and an accounting of the motel books

within ten days beginning September 28, 1969, was a condition precedent to the existence of

the contract. His purported promise to purchase was therefore illusory because he was not

obligated to perform. 1 Corbin Contracts § 16 (1950 Ed.). See also, Nat Nal Service Stations��3��/=�$�7�&�!=@�>$�P�� (&?5�F��

____________________

1

The terms of the “offer and acceptance agreement” ended with the provision: “This offer subject to buyer's

approval of inventory and accounting books within 10 days from above date.”


v. Wolf 107 N.E.2d 473 (N.Y. 1952); Kalivas v. Hauck, 290 S.W.2d 94 (Mo. 1956);

Middleton v. Holecroft, 270 S.W.2d 90 (Mo.App. 1954). Mutuality of obligation requires that

unless both parties to a contract are bound, neither is bound. Kraftco Corporation v. Koblus,

274 N.E.2d 153 (Ill.App. 1971); Snyder v. Hamilton, 189 N.E.2d 97 (Ill.App. 1963). Cf.

Hillman v. Hodag Chemical Corporation, 238 N.E.2d 145 (Ill.App. 1968); Bernstein,

Bernstein, Wile & Gordon v. Ross, 177 N.W.2d 193 (Mich.App. 1970); McCandless v.

Schick, 380 P.2d 893 (Ida. 1963).

[Headnote 6]

This is not a case where a party had the unconditional and unilateral right to rescind a

contract at his pleasure so that the lack of mutuality of obligation might be cured by the

presence of adequate consideration, (see Kowal v. Day, 98 Cal.Rptr. 118 (Cal.App. 1971)),

Friedman v. Tappan Development Corporation, 126 A.2d 646 (N.J. 1956), but rather a case

where no valid contract could possibly have come into existence until the condition precedent

was accomplished. It was never accomplished and the buyer's deposit was, upon demand,

returned to him. Mutuality of obligation never arose between the seller and buyer, therefore,

no binding contract ever existed between the parties which would entitle the appellant to a

commission under the rule announced in Engel v. Wilcox, supra.

Accordingly, we need not decide whether a wife's refusal to execute documents of sale on

real property held in joint tenancy could effectively deprive a real estate broker of his right to

a commission where the husband alone had signed the listing agreement. Nor need we

consider whether the “offer and acceptance agreement” was legally unenforceable as a

contract, because in several particulars it was not definite and certain in its terms.


Thompson, C. J., and Gunderson and Zenoff, JJ., and Gregory, D. J., concur.

____________

��89 Nev. 488, 488 (1973) Lowe v. State Dep't of Commerce��

STANLEY LOWE, STANLEY LOWE REALTY, INC., and WILLIAM LINDNER,

Appellants, v. STATE OF NEVADA, DEPARTMENT OF COMMERCE, REAL ESTATE

DIVISION, and NEVADA REAL ESTATE ADVISORY COMMISSION, Respondents.

No. 6972

November 5, 1973 515 P.2d 388

Appeal from judgment of Eighth Judicial District Court, Clark County; Joseph S.

Pavlikowski, Judge.

Appeal by real estate broker and salesman from a decision of the district court, which

upheld 60-day suspension entered by the Real Estate Advisory Commission. The Supreme

Court, Zenoff, J., held that suspension should not have been ordered for broker and salesman

where acceptance of postdated check on real estate transaction did not violate rule of real

estate commission or statute, and where there was no failure, as alleged, to make known

information that broker and salesman may have had relating to the property.

Reversed and dismissed.

Mowbray, J., and Thompson, C. J., dissented.

David Abbatangelo and Robert Farkas, of Las Vegas, for Appellants.


Brokers.

While broker and his salesman might deserve rebuke for accepting postdated check as deposit on real

estate transaction, rather than receiving cash, broker and salesman should not have been suspended for 60

days under statute setting forth grounds for disciplinary action against licensees, where there was not, as

alleged, a failure to make known information brokers had relating to the property, and where no facts

appeared, as alleged, to show fraud, dishonesty or impropriety. NRS 645.630, subds. 1, 14, 18, 19.

OPINION


Stanley Lowe, a licensed real estate broker in Las Vegas, and William Lindner, one of

Lowe's salesmen, were accused of violating NRS 645.630, subsections 1, 14, 18 and 19, and�� $��%��7��*� �� "/��


after a hearing before the Nevada Real Estate Advisory Commission were ordered suspended

for 60 days from the pursuit of real estate business. 1

The accusation arose from the proposed sale of certain property in Clark County owned by

Wilbur K. and Marjorie L. Sullivan. They had listed the property with the realty firm of Sala

& Ruthe, licensed real estate brokers who are members of the realtors multiple listing service,

as were these appellants. Lindner and Mary Nicosia, whom he knew as a friend and a

business acquaintance in Las Vegas, signed an earnest money agreement on the property

which recited that the sum of $1,000.00 was received from Mary Nicosia as a deposit on the

transaction. Neither Lowe nor Lindner told Sala and Ruthe or the Sullivans that the $1,000.00

was by postdated check instead of cash. They did not identify the nature of the deposit, only

the fact of it.

Mrs. Nicosia stopped payment on the check and withdrew from the purchase. When Mr.

Sullivan learned of that he demanded $500.00 from Lowe which according to the terms of the

earnest money agreement he was entitled to as one-half of the deposit. His demand was

refused by Lowe whereupon Sullivan filed a complaint against Lowe and Lindner before the

real estate commission.

Lowe and Lindner explained at the hearing before the real estate advisory commission that

Mrs. Nicosia had been willing to give a current check at the time of the transaction, October

24, but requested to give a postdated check dated November 1 because she cleared her

records every month and wanted her records clear as of that date. Lowe testified that he saw

nothing wrong or out of line in taking the postdated check since he �� %��

____________________

1

NRS 645.630 Grounds for disciplinary action against licensees. The commission shall have the power to

suspend, revoke or reissue, subject to conditions, any license issued under the provisions of this chapter at any

time where the licensee has, by false or fraudulent representation, obtained a license, or where the licensee,

whether or not acting as a licensee, is deemed to be guilty of:

1. Making any substantial misrepresentation.

* * * *

14. Negligence, or failure to disclose or to ascertain and disclose to any person with whom such licensee is

dealing, any material fact, data or information concerning or relating to the property with which such licensee is

dealing, which such licensee knew.

* * * *

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 different character from that hereinbefore specified, which

constitutes improper, fraudulent or dishonest dealing.


knew it to be a promissory note anyway and gave no further thought to telling the seller or

Sala and Ruthe.

From the record there is no indication of willful fraud or nondisclosure. Both Lowe and

Lindner freely explained the details of the transaction to the commission without the presence

of counsel, nor did they see the need for one because, as they stated, they could see no reason

to withhold anything. Lowe related that near the end of the month of October he deposited the

check for clearance on November 1 but then Mary Nicosia informed him that she didn't want

to go through with the purchase. A week later the check was returned because she had

stopped payment on it. 2

The commission ordered appellants' licenses suspended for 60 days for violating the

enumerated sections of NRS 645.630. Upon the facts of this case we fail to see any violation

and absent a violation the trial court has abused its discretion in upholding the findings and

conclusions of the real estate commission. For unwisely failing to specify the nature of the

deposit Lowe and Lindner might well deserve a rebuke but there was no violation of a rule of

the real estate commission or statutes that licensees can receive only cash for deposits. While

a “deposit” may be assumed to be by cash, the respondent has not promulgated an appropriate

rule which they can now claim was broken. Upon the facts of Flanders v. State Department of

Commerce, 87 Nev. 303, 486 P.2d 499 (1971), we refused to support a revocation of the

licensee's license on failure to maintain proper records and other technical violations.

Similarly, in In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937), this court modified the order of

the State Board of Medical Examiners revoking a medical certificate because the conduct

complained of was not shown to be willful and intentional. Even in Randono v. Nevada Real

Estate Commission, 79 Nev. 132, 379 P.2d 537 (1963), this court stated while reaffirming the

general rule that we will not interfere with the exercise of a trial court's discretion if the

record justifies that court ruling one way or the other, but that we could and would overturn

the trial court if the record does not support the trial court's result at all.

To the contrary in this case, there was no failure to make known information that the

licensee may have relating to the property such as, we presume, a proposed highway,

shopping center, school or any facts within the knowledge of the licensee but not such as

would necessarily be a matter of public record, ��

____________________

2

Lowe testified that he had commenced suit on the check but the status of that litigation does not appear.


such as defects of title. This deposit concerns the details of the transaction and bears no

relevance to the property. Thus, there was no breach of subsection 14.

Subsections 18 and 19, also found to have been violated, are open-end and catch-all,

certainly vague where specificity is required, but in any event no facts appear in this case to

show fraud or dishonesty or impropriety. The commission has made what it terms as a

violation of subsection 1 into a violation of subsections 18 and 19 as well. No other facts are

shown that would be indicated to apply to subsections 18 and 19. As they are presently stated,

any conduct that might offend the personnel of the commission, such as personality clashes or

business disagreements, can lead to oppressive use of subsections 18 and 19. Without more

containment, in their present form they are a dangerous instrumentality when the rights of

individuals to engage in business are involved. Cf. Black v. State Bar of California, 368 P.2d

118 (Cal. 1962). At the most, as we have already hinted, failure to distinguish the deposit

between cash and a postdated check was nothing more than unwise in the absence of a

specific directive otherwise.

The trial court abused its discretion when it upheld the findings and conclusions of the real

estate advisory commission.

These proceedings are reversed and dismissed.

Gunderson and Batjer, JJ., concur.

Mowbray, J., with whom Thompson, C. J., agrees, dissenting:


This is an appeal from a judgment of the district court affirming the decision, findings of

fact, and conclusions of law of the Nevada Real Estate Advisory Commission in a proceeding

brought by the Real Estate Division, Department of Commerce, State of Nevada, against the

appellants, Stanley Lowe, Stanley Lowe, Inc., and William Lindner, to revoke or suspend

their licenses under the provisions of chapter 645 of Nevada Revised Statutes. The complaint

charged the appellants with violating NRS 645.630, subsections 1, 14, 18, and 19. 1 �4�� $%��"!(�"@/��+�� &��

____________________

1

NRS 645.630, in relevant part:

“645.630 Grounds for disciplinary action against licensees. The commission shall have the power to

suspend, revoke or reissue, subject to any conditions, any license issued under the provisions of this chapter at

any time where the licensee has, by false or fraudulent representation, obtained a license, or where the licensee,

whether or not acting as a licensee, is deemed to be guilty of:


The Commission, after a full hearing, and the district court, on review, found that the

appellants had violated the aforementioned subsections of NRS 645.630 and ordered that the

appellants' licenses be suspended for a period of 2 months. After reviewing the transcript of

the proceedings below, I find that the evidence supports the ruling of the district court, and I

therefore would affirm the order of suspension.

1. The Facts.

The appellants conduct their real estate brokerage business in corporate form as Stanley

Lowe, Inc., with Stanley Lowe as the officer-broker and William Lindner being a licensed

salesman.

In August 1969, Sala & Ruthe, licensed brokers, who, like the appellants, are members of

the Multiple Listing Service, 2 obtained a listing on a residence owned by Mr. and Mrs.

Wilbur K. Sullivan. On or before October 24, 1969, Salesman Lindner showed the listed

property to Mr. and Mrs. Nicosia, and Mrs. Nicosia signed a written offer and acceptance

agreement on the same day. Lindner subsequently signed the agreement on behalf of his firm

and presented it to Broker Lowe. The agreement provided, in part:

“Las Vegas, Nevada, October 24, 1969.

“RECEIVED FROM MARY NICOSIA the sum of $ ONE THOUSAND........($ 1000.00)

DOLLARS, ...”

At about the same time, appellants advised Sala & Ruthe that they had received an offer

and “told them we [appellants] got a thousand dollars.” In truth and fact they had not received

a thousand dollars from the buyers, but they had received a check postdated to November 1,

1969, for that amount.

____________________

“1. Making any substantial misrepresentation.

“. . .

“14. Negligence, or failure to disclose or to ascertain and disclose to any person with whom such licensee is

dealing, any material fact, data or information concerning or relating to the property with which such licensee is

dealing, which such licensee knew.

“. . .

“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.”

2

The Multiple Listing Service is a group of brokers who, by agreement, make listings taken by one, available

to all others. If a sale is consummated by any member, the commission is shared by both the listing and the

selling brokers.


The Sullivans, owners of the property, were notified of the offer and acceptance and

promptly accepted the same.

Broker Lowe deposited the check on or about October 28, 1969; on or about October 31,

1969, the buyers advised Lowe that they did not want the home, and they stopped payment on

the check. The check was returned to Lowe on or about November 7, 1969, stamped

“Payment Stopped.”

The sale never closed, and in spite of the sellers' demand that Lowe pay them one-half of

the $1,000 deposit as provided in the offer and acceptance agreement, Lowe refused to do so.

During the hearing before the Commission, Lowe was frank to admit that a postdated

check was in essence a promissory note, and Seller Wilbur K. Sullivan testified that if he had

been told the check was postdated he would not have signed the offer and acceptance

agreement.

2. The Burden of Proof.

The statute allowing an appeal from a ruling of the Commission does not provide for a

trial de novo. The burden of proof is on the appellant, and while the court may receive and

consider any relevant evidence concerning the action of the Commission, its inquiry shall be

limited solely to a consideration of whether there has been an abuse on the part of the

Commission in arriving at its decision. NRS 645.760, subsection 3. 3 In other words, the

court has the duty, not of reviewing the evidence to reach its own conclusion, but, rather, of

affirming the decision of the Commission if the record contains substantial evidence to

support that decision. Cf. Miller v. Munger, 88 Nev. 405, 498 P.2d 1336 (1972); Miller v.

West, 88 Nev. 105, 493 P.2d 1332 (1972).

In interpreting the appellate function, as here involved, under NRS 645.760, this court held

in Randono v. Nevada Real Estate Comm'n, 79 Nev. 132, 137, 138, 379 P.2d 537, 539, 540

(1963):

“. . . The action of the Commission is clothed with the presumption of validity and is

supported by substantial evidence. . .

____________________

3


“Upon the hearing of the appeal, the burden of proof shall be upon the appellant, and the court shall receive

and consider any pertinent evidence, whether oral or documentary, concerning the action of the commission

from which the appeal is taken, but shall be 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.”


“. . .

“. . . 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.

“. . . ‘. . . [T]his court is not free to substitute its own discretion as to the matter, even if it

were inclined so to do.' [quoting from Macfarlane v. Department of Alcoholic Beverage

Control, 330 P.2d 769, 773 (Cal. 1958)].” See also Holland Realty Investment Co. v. State

Dep't of Commerce, Real Estate Div., 84 Nev. 91, 436 P.2d 422 (1968).

3. The Broker's Duty.

This court, in Holland Realty Investment Co., supra, held that a real estate licensee is a

fiduciary and that he owes the duty of absolute honesty and fullest disclosure to his client.

The court said, 84 Nev. at 97, 98, 436 P.2d at 426, in defining that duty:

“Such an agent [broker] is charged with the duty of fullest disclosure of all material facts

concerning the transaction that might affect the principal's decision. Langford v. Thomas,

supra [252 P. 602 (Cal. 1926)]; Williams v. Lockwood, 166 P. 587 (Cal. 1917); Feckenscher

v. Gamble, 85 P.2d 885 (Cal. 1938); Curry v. King, 92 P. 662 (Cal. 1907); Silver v. Logue,

16 P.2d 183 (Cal. 1932); Jolton v. Minister-Graf & Co., 128 P.2d 101 (Cal. 1942); Baird v.

Madsen, 134 P.2d 885 (Cal. [App.] 1943).

“. . .

“In the language of the Restatement of Agency § 390, Comment a: ‘Before dealing with

the principal on his own account * * * an agent has a duty, not only to make no misstatements

of fact, but also to disclose to the principal all material facts fully and completely. A fact is

material * * * if it is one which the agent should realize would be likely to affect the

judgment of the principal in giving his consent to the agent to enter into the particular

transaction on the specified terms. Hence, the disclosure must include not only the fact that

the agent is acting on his own account * * *, but also all other facts which he should realize

have or are likely to have a bearing upon the desirability of the transaction from the viewpoint

of the principal.' Rattray v. Scudder, supra [169 P.2d 371 (Cal. 1946)].”

Applying the rule of full disclosure to the case at bar, it is clear that the appellants failed to

abide by the standards prescribed in the statute and by this court. When a licensee asks �� .��///�� 6�� 3��&�!:�&� �>��*��


a seller to accept an offer for his property and represents to the seller that the buyer has made

a $1,000 deposit, where in truth and fact the buyer has offered a postdated check that is

nothing more than a promise to pay in the future, that licensee has failed to meet the

prescribed rule of full disclosure prevailing in such cases. St. Germain v. Watson, 214 P.2d

99 (Cal.App. 1950), is in point. There, instead of a postdated check, the broker had received a

note payable at a future time, rather than a cash down payment, and failed to tell the seller.

The court affirmed a suspension of the broker's license, stating the facts as follows, 214 P.2d

at 101:

“On June 4, the seller received a call from respondent [broker] that respondent was

coming over to see him, and had obtained a buyer for the property. Respondent arrived, and

produced a uniform agreement of sale and deposit receipt, dated June 2, 1948. The deposit

receipt read in part as follows: ‘Received from Geo. Anastasi, hereinafter designated as the

purchaser, the sum of One Thousand.......................($1,000.00) Dollars,...' Nothing was said

concerning the deposit. The seller signed the contract. . . . The seller testified at the hearing

that he would not have signed the contract had he known the deposit was a promissory note.

“. . .

“The seller did not learn the nature of the deposit until June 18, when, upon inquiring at

respondent's office to see what was holding up the transaction, he learned that respondent was

having difficulty in reaching the buyer, and was informed that the down payment was a

promissory note. . . .

“. . .

“When the respondent finally got in touch with the buyer, the latter refused to go through

with the contract. . . .”

The court stated the problem as follows, 214 P.2d at 101: “The main question presented is

whether the acceptance by a real estate broker of a nonnegotiable promissory note as the

down payment on an agreement to purchase real property without informing the seller, who is

the broker's client, of that fact, constitutes a violation of section 10176, subdivisions (a) and

(i) (formerly subdivision (f)), Division 4, Business and Professions Code. [footnote omitted]”4

The court then held, 214 P.2d at 103:

“. . . It is a well known fact that prior to the enactment of this [Real Estate] Law, there

were a considerable number of �� -�� ) ��

____________________

4

These sections are substantially identical with NRS 645.630, subsections 1 and 19, two of the subsections

involved here.


persons engaged in the real estate business who were carrying on that business in an unethical

manner, and that one of the purposes of the Law was to raise the standards of that profession

and to require its members to act fairly and ethically with their clients. Some of the things

which brokers had done theretofore, and which were not necessarily illegal or unethical, were

prohibited in the interests of protecting the public. Thus, commingling the money or other

property of his principal with his own is expressly prohibited. . . . It was not that

commingling moneys meant necessarily that the client would be defrauded, but that such a

practice might result in fraud or injury to the client. So it is with the undisclosed acceptance

of a promissory note. In this case, the broker was well able to make good the full amount of

the note had the seller insisted. But the possibilities of fraud, and of injury to a seller by the

undisclosed acceptance of a promissory note are unlimited. In the first place, the seller is

entitled to know before entering into a binding obligation to tie up his property by an

agreement to sell, that for some reason the buyer either cannot or will not put up cash. . . .”

“. . . The seller had the right to believe that the person he was asked by his own broker to

enter into an agreement with, was able to and did put up one thousand dollars [emphasis in

the original] (i.e., money), and that if the buyer for any reason not chargeable to the seller

refused to go on with his agreement, there was that much of the buyer's money to be forfeited

and kept by the seller. . . .”

Appellants argue that, because (1) a postdated check is still a negotiable instrument and (2)

merchants often accept such checks, appellants have not violated the provisions of chapter

645 of NRS.

It is true that some merchants are willing to accept postdated checks under certain

circumstances, i.e., when they have confidence in the maker. There is no showing in the

instant case that the seller knew the maker or that he had confidence in him. But more

importantly, it was the appellants, and not their principal, who made the decision to accept

the postdated check without authority from or knowledge of their principal.

As the California court said in St. Germain v. Watson, supra, 214 P.2d at 103:

“. . . He [The principal], rather than his broker, should determine whether the reason

for the buyer's not paying cash is satisfactory. He, rather than his broker, should determine

whether he is satisfied that a promissory note [postdated check] be accepted as a

payment. . . .”


Finally, appellants argue that the decision is wrong in finding that acceptance of a check

on an offer and acceptance agreement is misconduct, because it is the custom of the members

of the Multiple Listing Service to do so. Assuming such to be the practice, although the

record does not so show, it does not prove that such a custom exists to accept postdated

checks.

“. . . [T]he seller is entitled to know before entering into a binding obligation to tie up his

property by an agreement to sell, that for some reason the buyer either cannot or will not put

up cash. . . . [T]o hold that a broker may accept a promissory note [postdated check] as

payment to his principal, without disclosure, is not a violation of the law, would be to

countenance a practice which is equally as dangerous as the commingling of money.” St.

Germain v. Watson, supra, 214 P.2d at 103.

I conclude, therefore, that, as a matter of law, under the facts of this case the Commission

has not abused its discretion. I would affirm the judgment of the district court.

____________

��89 Nev. 497, 497 (1973) Havas v. Carter��

VICTOR HAVAS, dba COURTESY MOTORS, Appellant, v. RICHARD CARTER and

INSURANCE AGENCY, INC., a Nevada Corporation, Respondents.

No. 6964

November 5, 1973 515 P.2d 397

Appeal from a judgment of the Eighth Judicial District Court; Michael J. Wendell, Judge.

Action by used car dealer whose vehicle was stolen against insurance agent, seeking to

recover on implied contract that allegedly arose between dealer and agent at time agent

undertook to place open lot insurance policy that would cover fire, theft and other losses

occurring to used cars on lot. The district court entered judgment in favor of agent, and dealer

appealed. The Supreme Court, Batjer, J., held that evidence supported conclusion that agent

made reasonable effort to procure the special type of insurance demanded by dealer, and that

agent notify dealer of the most recent rejection of the coverage within a reasonable time.

Affirmed.

[Rehearing denied March 5, 1974] 8��;�


James M. Bartley and George Foley, of Las Vegas, for Appellant.

Rose, Norwood & Edwards, Ltd., of Las Vegas, for Respondents.

1. Insurance. Generally, an insurance agent or broker who undertakes to procure insurance for another owes an

obligation to his client to use reasonable diligence in attempting to place the insurance and to seasonably

notify the client if the agent or broker is unable to obtain the insurance.

2. Insurance. In action by used car dealer whose vehicle was stolen against insurance agent seeking to recover on

implied contract which allegedly arose between dealer and agent at time agent undertook to place open lot

insurance policy that would cover fire, theft and other losses occurring to used cars in lot, evidence

supported conclusion that agent made reasonable efforts to procure the special type of insurance demanded

by dealer, and that agent informed dealer within a reasonable time of the most recent rejection of such

coverage.

OPINION


The appellant, a used car dealer, contacted respondent, Richard Carter, an insurance agent,

seeking an open lot insurance policy that would cover fire, theft and other losses occurring to

the used cars in his lot.

The evidence in the record establishes that open lot insurance covering fire, theft and other

losses which the appellant required for his used car business was difficult to place.

Nevertheless, the respondents placed it with Guarantee [sic] National Insurance Company,

which placement was subsequently rejected by appellant on October 29, 1964. Later a policy

was procured from Aetna Insurance Company, but that policy was in effect only 33 days to

honor the respondents' binder and to cover two theft losses incurred by the appellant during

that period.

The appellant was notified of the Aetna cancellation as of January 20, 1965, and he again

contacted Carter, who according to the appellant's testimony, told him that “he would try to

place it with some other companies.” In the face of these difficulties the respondents

continued to try and place insurance with other companies, but without success. Rejections of

coverage were communicated to the appellant with the exception of the last rejection which

occurred a few days before a �� +��


Cadillac automobile was stolen from the appellant's sales lot. During this entire period of

time the appellant was continuing to urge the respondents to try and secure coverage

acceptable to him. At no time from October 1964 until April 13, 1965, when the Cadillac was

stolen did the appellant pay any premiums to the respondents.

Apparently Carter never specifically informed the appellant he was uninsured. However,

the appellant was an insurance agent who had held himself out to Carter as an insurance

broker and had split fees with him. Carter could have reasonably assumed that appellant knew

he was uninsured.

Inasmuch as the appellant was not covered by insurance for the loss of his automobile, he

brought this action to recover from the respondents. After a trial before the district court,

without a jury, a judgment was entered against the appellant and respondents were awarded

attorney fees in the amount of seven hundred ($700) dollars. This appeal is taken from that

judgment.

The appellant contends that an implied contract arose between him and the respondents at

the time Carter undertook to place the insurance; that liability attached to the respondents for

the loss to the appellant of the value of his Cadillac automobile; and that the district court

erred when it found no such liability.

This is not an action on a contract of insurance. The appellant is in effect seeking damages

for the respondents' failure to obtain open lot insurance. The breach of duty alleged was the

failure of the respondents to use due diligence to obtain such a policy. There was never an

unconditional agreement to place in effect open lot insurance and the appellant, in the

capacity of an insurance agent, knew, or should have recognized this fact.

The respondents were not obligated to assume the duty of procuring this insurance, but

when they did so the law imposed upon them the duty of performance in the exercise of

ordinary care for the rights and interests of the appellant. Johnston v. Otta, 91 N.E.2d 468

(Ill.App. 1950). Whether the respondents had exercised the care and diligence that their

undertaking required, was a question of fact which was resolved against the appellant.

[Headnote 1]

Although the cases relied upon by the appellant stand for the general rule that an insurance

agent or broker who undertakes to procure insurance for another owes an obligation to his

client to use reasonable diligence in attempting to place �� >A��A��3� ��O��@(@�:�&�""@�>3�� "/?5�<��A�� &@/��3�&!'��>*�� (/?5�,�� 3��:�� !�!�:�&�@!@�>9�� ""?5�9��A��!&'�:�&��&!�>*� K�� "=?5�A��A��&�/��3�&�&��>4�#�� *��


the insurance and to seasonably notify the client if he, the agent or broker, is unable to obtain

the insurance (Bates v. Bowles White & Company, 353 P.2d 663 (Wash. 1960); Derby v.

Blankenship, 230 S.W.2d 481 (Ark. 1950); Franklin v. Western Pacific Insurance Company,

414 P.2d 343 (Ore. 1966); Oney v. Barnes, 428 P.2d 124 (Ariz. 1967); Burroughs v. Bunch,

210 S.W.2d 211 (Tex.Civ.App. 1948)), none of them were decided on facts similar to those

contained in this record.

[Headnote 2]

The appellant has failed to establish any negligence on the part of the respondents by any

proof even approaching a preponderance of the evidence. To the contrary, the evidence

preponderates in support of the conclusion that Carter made reasonable efforts to procure the

special type of insurance demanded by the appellant. See Shrv Teletype Coin Exch. v.

Commercial Union Ins. Co., 191 So.2d 208 (La.App. 1966); cases collected in 29 A.L.R.2d,

171-205.

The respondents were entitled to a reasonable time within which to notify the appellant of

the most recent rejection. The question of whether such delay was reasonable or unreasonable

was one of fact to be resolved by the trier of fact. See Rainer v. Schulte, 113 N.W. 396 (Wis.

1907); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 1963). Here the trial court found the

delay was not unreasonable.

Even where there is conflicting testimony the findings of fact are binding on the appellate

court if there is substantial evidence to uphold the lower court's position. Allen v. Webb, 87

Nev. 261, 485 P.2d 677 (1971); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970);

Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966). On review, a trial court's findings will not

be reversed unless it is against the manifest weight of the evidence. Where there is sufficient

credible evidence to support the finding of the trier of fact it will not be disturbed on appeal.

B & C Enterprises v. Utter, 88 Nev. 433, 498 P.2d 1327 (1972); Merrick v. Metropolitan Life

Ins. Co., 88 Nev. 327, 497 P.2d 890 (1972); Lagrange Construction, Inc. v. Kent Corp., 88

Nev. 271, 496 P.2d 766 (1972); Savini Constr. Co. v. A & K Earthmovers, 88 Nev. 5, 492

P.2d 125 (1972).



____________

��89 Nev. 501, 501 (1973) Baer v. Sheriff��

LOUIS BAER, Appellant, v. SHERIFF, HUMBOLDT


No. 7514

November 8, 1973 515 P.2d 397

Appeal from an order denying a pretrial petition for a writ of habeas corpus, Sixth Judicial

District Court, Humboldt County; Llewellyn A. Young, Judge.

Affirmed.

Stanley H. Brown and Harold G. Albright, of Reno, for Appellant.

Robert List, Attorney General, Carson City; and William Macdonald, District Attorney,

Humboldt County, for Respondent.

OPINION

Per Curiam:


____________

��89 Nev. 501, 501 (1973) Consolidated Casinos v. L. A. Caunter & Co.��

CONSOLIDATED CASINOS CORP., a Nevada Corporation, Appellant, v. L. A. CAUNTER

& CO., an Ohio Corporation; E. LUCILLE CAUNTER; CAROL BEDY; and LEE

CAUNTER, Respondents.

No. 6812

November 9, 1973 515 P.2d 1025

Appeal from Judgment and Order Sustaining Motion to Quash Return of Summons and

Dismissing Action for Lack of Jurisdiction, Eighth Judicial District Court, Clark County;


Holders of checks brought action against nonresident signers and payees, and signers

moved to quash service of process. The district court entered judgment dismissing suit for

lack of jurisdiction and holders appealed. The Supreme Court, Gunderson, J., held that where

signers submitted order for judgment dismissing action and where order was signed by judge,

order granted relief beyond that necessary to support signers' allegation of improper service of

process and constituted a submission to court's jurisdiction by signers, that the court would

not ��


correct judgment to make it conform to motion pursuant to which it was entered on basis that

difference between judgment and motion was due to clerical error, and that where order

dismissed action against all defendants, including payees of checks, and where signers

submitted no argument to the effect that judgment was not final as to payees, court would

construe judgment literally and judgment was final and appealable, even though not certified

for review.


[Rehearing denied December 10, 1973]

Lionel Sawyer Collins & Wartman, of Las Vegas, for Appellant.

Dickerson, Miles & Pico, of Las Vegas, for Respondents.

1. Appearance. Where nonresident signers of checks moved to quash service of process purportedly authorized by

long-arm statute, and where court, at signers' request, entered order which quashed service and which

dismissed action against signers and others for lack of jurisdiction, signers had submitted to court's general

jurisdiction by requesting relief beyond that which was necessary to protect signers from defective process.

NRS 14.065, subd. 2(a); NRCP 12(b).

2. Appeal and Error. Although judgment submitted to judge for signature, through clerical mistake, purported to grant relief

beyond that sought by motion and only available on general appearance, Supreme Court would not correct

judgment to make it conform to motion and would not relieve movants of their general appearance.

3. Appeal and Error. Where signers of checks obtained judgment dismissing holders' action as to all defendants, including

payees of checks, and where signers submitted no argument to the effect that judgment applied only to

them, court would construe judgment literally and judgment was final and appealable even though it was

not certified for review. NRCP 54(b).

OPINION


Although the parties have argued other, more intricate issues, we believe the central

question on appeal, i.e. whether Nevada courts have jurisdiction over respondents' persons,

may be simply resolved because respondents have themselves invoked our courts' general

jurisdiction. On that ground, we reverse, and remand this cause for further proceedings.


Appellant Consolidated Casinos Corp. commenced this action in our Eighth Judicial

District Court, as the holder of two $60,000 checks that a Ohio corporation, respondent L. A.

Caunter & Co., issued in Cleveland, Ohio, on or about May 27, 1969, payable to California

residents, Al Berson and Tony White. Each check was drawn on the Ohio corporation's Ohio

bank account; each was signed on its behalf by Ohio residents, respondents Carol Bedy and

E. Lucille Caunter. As defendants, appellant named the aforementioned respondents, as well

as respondent Lee Caunter (the corporation's president), one Jim Bishop (an employee of the

corporation), and Berson and White.

Appellant endeavored to serve process pursuant to NRS 14.065(2)(a), effective July 1,

1969, which authorizes service outside this state on causes of action arising from

“[t]ransacting any business or negotiating any commercial paper within this state.”

Respondents moved to quash service of process, contending (1) that NRS 14.065(2)(a) does

not apply retrospectively, and (2) that in any event they were nonresidents, whose contacts

with Nevada were not sufficient to support service elsewhere, and therefore our courts lacked

jurisdiction of their persons. Cf. McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

After an evidentiary hearing, the district court ruled in respondents' favor; whereupon, their

counsel prepared, submitted and caused the court to execute a “Judgment and Order

Sustaining Motion to Quash Return of Summons and Dismissing Action for Lack of

Jurisdiction.” Conforming to its title, the judgment's text recited that a dismissal was part of

the relief respondents' motion sought, that the motion was sustained, and that appellant's

action was “dismissed for lack of jurisdiction of the person of said Defendants, L. A.

CAUNTER & CO., an Ohio corporation, E. LUCILLE CAUNTER, CAROL BEDY and LEE

CAUNTER.” 1

On appeal, the parties directed their briefs to the issues �� )��

____________________

1

The operative portion of the judgment recited:

“ORDERED, ADJUDGED AND DECREED that the said motion be and is hereby in all respects sustained.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the return of service of summons upon

the Defendant, L. A. CAUNTER & CO., an Ohio corporation, and upon E. LUCILLE CAUNTER, CAROL

BEDY and LEE CAUNTER, on the 20th day of February, 1970, in the State of Ohio, be and the same is hereby

quashed and that this action be and the same is hereby dismissed for lack of jurisdiction of the person of said

Defendants, L. A. CAUNTER & CO., an Ohio corporation, E. LUCILLE CAUNTER, CAROL BEDY and LEE

CAUNTER.”


mentioned earlier, but this court was concerned with two unargued questions. These were, as

we stated in our order for supplemental briefs:

“(1) Whether respondents L. A. CAUNTER & CO., E. LUCILLE CAUNTER, CAROL

BEDY and LEE CAUNTER invoked the general jurisdiction of the Nevada courts, when they

prepared and submitted to the district court, and caused said district court to enter, an order

and judgment granting ‘relief additional to that necessary to protect [respondents] from

[assertedly] defective service of process.' Cf. Barnato v. Dist. Court, 76 Nev. 335, 340, 353

P.2d 1103, 1105 (1960); Selznick v. District Court, 76 Nev. 386, 355 P.2d 854 (1960).

“(2) Whether this court lacks jurisdiction of the instant appeal, because the district court's

Judgment and Order Sustaining Motion to Quash Return of Summons and Dismissing Action

for Lack of Jurisdiction related to ‘fewer than all of the claims or parties,' and contained

neither ‘an express determination that there [was] no just reason for delay' nor ‘an express

direction for the entry of judgment.' NRCP 54(b); cf. Van Dyk v. Earl, 87 Nev. 541, 490 P.2d

1057 (1971); Monsour v. Haddad, 87 Nev. 448, 488 P.2d 916 (1971); Donoghue v. Rosepiler,

83 Nev. 251, 427 P.2d 956 (1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963).”

We felt we could not consider affirming the judgment without taking notice of its form;

for then, on the face of the record, appellant's action would stand dismissed, totally or

partially. Nor could we properly ignore the second issue; for we feel constrained to notice

jurisdictional problems on our own volition.

[Headnote 1]

1. In the Barnato and Selznick cases, mentioned in our order, we held that a defendant

submits to our Nevada courts' general jurisdiction if he not only moves to quash assertedly

defective process, but requests relief beyond that necessary to protect him from it, e.g.

dismissal of the plaintiff's action. 2 Clearly, that result must obtain, whether counsel initially

tenders an overly broad written motion, or whether, after the court has ruled on a properly

limited motion, counsel then �#�� )�� +��

____________________

2

In the federal courts a motion to dismiss the action under Rule 12(b), based on improper service of process,

seems not to constitute a general appearance. In fact Form 19, Federal Rules of Civil Procedure, 28 U.S.C.A.,

expressly approves this method of procedure. Notwithstanding this, in the Barnato case, we concluded that Rule

12(b) as


expands his request silently by tendering an overly broad order for the court's signature. The

latter practice, indeed, offends more procedural rules than the former, while pursuing the

identical end.

[Headnote 2]

Respondents' counsel says he made a “clerical mistake” when preparing the judgment,

which he “probably” patterned on a federal form, and he urges us to “correct” the judgment to

conform to his motion. This course seems unavailable.

The title and text of the judgment, which presumably respondents' counsel dictated and

thereafter read before affixing his signature and submitting it to the court, clearly

contemplates either total or partial dismissal of appellant's action. If counsel relied on federal

practice, his “mistake” in preparing the judgment seems identical in character to that of

counsel in the Barnato case, who also apparently relied on federal practice when he prepared

his motion. Of course, counsel in each case believed or hoped his procedures would

constitute only a special appearance; however, equally in each, counsel prepared court

documents seeking relief only available on general appearance.

Practicality as well as precedent dictates that we decline to consider counsel's thoughts

while preparing such documents. Respondents' counsel is a highly respected practitioner;

however, whatever procedure we adopt for him, we must apply to all. Hence, were we to

relieve respondents of their general appearance, then hereafter we would have to relieve any

defendant in like circumstances, if his attorney characterized an application for dismissal as a

“clerical mistake.”

[Headnote 3]

2. Although our order for supplemental briefs afforded respondents the opportunity to

argue that the judgment applied �� @�� +�� $%�:�(!>�?�

____________________

adopted in this state did not alter our prior practice, which was contrary to the federal rule but in accord with the

general rule recognized in other state courts. Shortly thereafter, in the Selznick case, we noted:

“In the case of Barnato v. Second Judicial District Court, 76 Nev. 335, 353 P.2d 1103, this court held that a

defendant who requests relief additional to that necessary to protect him from defective service of process

renders his appearance general. In that case, although petitioner claimed his motion to dismiss was solely in

furtherance of his motion to quash service of summons, and that quashing service of summons was the only

relief desired, we concluded that petitioner was seeking relief other than the quashing of the service of the

summons, to wit, dismissal of the action. . . .” 76 Nev. at 388, 355 P.2d at 855.


only to them, and was hence unappealable, their counsel tendered no such argument. 3

Construed literally, that judgment dismissed appellant's action as to all defendants, not merely

as to respondents, and hence was final and appealable although not certified for review

pursuant to NRCP 54(b). We adopt that literal construction, no other having been proffered.

The judgment is reversed; the cause is remanded for further proceedings on the merits of

appellant's complaint.


____________________

3

See: Van Dyk v. Earl, Monsour v. Haddad, Donoghue v. Rosepiler, and Wilmurth v. State, cited in our

order for supplemental briefs, quoted above.

____________

��89 Nev. 506, 506 (1973) Theriault v. Sheriff��

CLAUDE THERIAULT, Appellant, v. SHERIFF,


No. 7516

November 13, 1973 515 P.2d 397

Appeal from an order denying a pretrial petition for writ of habeas corpus, Eighth Judicial


Affirmed.

[Rehearing denied December 18, 1973]

Alan R. Johns and Gordon L. Hawkins, of Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Donald


OPINION

Per Curiam:


____________

��89 Nev. 507, 507 (1973) Williamson v. Sheriff��

GEORGE WILLIAMSON, Appellant, v. SHERIFF,


No. 7448

November 14, 1973 515 P.2d 1028

Appeal from an order denying pretrial petition for writ of habeas corpus, Eighth Judicial

District Court, Clark County; Joseph S. Pavlikowski, Judge.

The Supreme Court, Batjer, J., held that where the name of an additional witness for the

prosecution was endorsed on the information after jury had been selected and impaneled, and

a juror announced that she was acquainted with the witness and was so biased against the

witness that she would be prejudiced in favor of petitioner, there was a manifest necessity to

declare a mistrial, and discharge of jury did not constitute a bar to a future trial.

Affirmed.



Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Charles L.

Garner, and H. Leon Simon, Deputy District Attorneys, Clark County, for Respondent.

1. Criminal Law. Where judge discovers facts during trial indicating that one or more members of the jury might be biased

against the prosecution or the defendant, it is duty of judge to discharge jury and direct a retrial.

U.S.C.A.Const. Amend. 5.

2. Criminal Law. Where state was permitted to endorse on information the name of an additional witness for the

prosecution after jury had been impaneled and a juror announced that she was acquainted with the witness

and was so biased against the witness that she would be prejudiced in favor of the petitioner, there was a

“manifest necessity” to declare a mistrial and trial judge properly exercised his discretion in discharging the

jury and future trial was not barred on theory that petitioner had been in jeopardy. U.S.C.A.Const. Amends.

5, 14; Const. art. 1, § 8.

OPINION


Appellant was ordered to stand trial for the sale of narcotics, a violation of NRS 453.030

and NRS 453.210(2) of ��L� ��$�� <��*��*��


the Uniform Narcotic Drug Act. 1 After the jury had been selected and impaneled the

prosecutor moved, without objection, to endorse on the information the name of an additional

witness for the prosecution. During the next recess one of the jurors announced to an officer

of the court that she was acquainted with the witness whose name had been endorsed and that

she was so biased against the witness that she would be prejudiced in favor of appellant. The

colloquy between the juror and the officer of the court was related to the presiding judge,

who, over appellant's objection, granted a mistrial stating: “I think the interests of justice

require that the motion for a mistrial be granted.” The jury was discharged and the state

subsequently requested a new trial setting.

Appellant then moved to dismiss the information contending a violation of his Fifth

Amendment right against double jeopardy. The trial court permitted appellant to withdraw his

not guilty plea and treated the motion as a petition for habeas corpus. The requested relief was

denied and that issue is again raised in this appeal.

In Ex Parte Maxwell, 11 Nev. 428 (1876), this court held that trial courts are invested with

power, in the exercise of sound legal discretion, to discharge a jury without the consent of the

defendant, and without the discharge constituting a legal bar to a future trial, in all cases of

manifest necessity, whether such necessity arises from some physical cause occurring during

the trial or deliberation of the jury, or from the inability of the jury to agree upon a verdict;

that this power is not one of absolute, uncontrolled discretion, but must be exercised in

accordance with established legal rules, and is always subject to review by the appellate court.

[Headnote 1]

The Maxwell rationale was derived from the opinion by Mr. Justice Story in United States

v. Perez, 22 U.S. 579 (1824). In Illinois v. Somerville, 410 U.S. 458 (1973), where

prosecutorial neglect in the drawing of an indictment was the basis for granting a mistrial, the

High Court found no double-jeopardy and restated the doctrine as follows: “‘The

double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a

defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to

end ��

____________________

1

The alleged offense took place June 4, 1971. The entire Uniform Narcotic Drug Act, Stats. of Nev. 1937,

ch. 23, was supplanted by the Uniform Controlled Substances Act, Stats. of Nev. 1971, ch. 667, p. 1999 et seq.,

effective January 1, 1972.


in a final judgment. Such a rule would create an insuperable obstacle to the administration of

justice in many cases in which there is no semblance of the type of oppressive practices at

which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances

that arise during a trial making its completion impossible, such as the failure of a jury to agree

on a verdict. In such event the purpose of law to protect society from those guilty of crimes

frequently would be frustrated by denying courts power to put the defendant to trial again.

And there have been instances where a trial judge has discovered facts during a trial which

indicated that one or more members of the jury might be biased against the Government or

the defendant. It is settled that the duty of the judge in this event is to discharge the jury and

direct a retrial. What has been said is enough to show that a defendant's valued right to have

his trial completed by a particular tribunal must in some instances be subordinated to the

public's interest in fair trials designed to end in just judgments.' Wade v. Hunter, 336 U.S.

[684], at 688-689.” 410 U.S. at 470. Cf. Simmons v. United States, 142 U.S. 148 (1891). This

court has not departed from the Perez doctrine. See Merritt v. District Court, 67 Nev. 604,

222 P.2d 410 (1950); State v. Helm, 66 Nev. 286, 209 P.2d 187 (1949); State of Nevada v.

Pritchard, 16 Nev. 101 (1881).

[Headnote 2]

In the factual posture of this case there was a “manifest necessity” to declare a mistrial and

the trial judge properly exercised his discretion. The appellant was not twice put in jeopardy

within the meaning of the Fifth Amendment to the Constitution of the United States [made

applicable to the States through the Due Process Clause of the Fourteenth Amendment,

Benton v. Maryland, 395 U.S. 784 (1969)], or the Nevada Constitution Art. 1, § 8.

The order denying habeas relief is affirmed.


____________

��89 Nev. 510, 510 (1973) Colby v. Lyon County��

SANDRA JEAN COLBY and JOHN DEL LEWALLEN, Appellants, v. LYON COUNTY,

NEVADA, STANLEY A. SMART, Its District Attorney, and GEORGE ALLEN, Its Sheriff,

Respondents.

No. 7200

November 15, 1973 515 P.2d 672

Appeal from summary judgment, First Judicial District Court, Lyon County; Richard L.

Waters, Jr., Judge.


Howard P. McKissick, Jr., of Reno, for Appellants.

Hibbs & Bullis, Ltd., of Reno, for Respondents.

OPINION

Per Curiam:

Relying on NRS 244.250, the lower court granted summary judgment. Subsequent to entry

of that judgment, while this appeal was pending, this court decided Turner v. Staggs, 89 Nev.

230, 510 P.2d 879 (1973), which held: “The statutory provisions of this state [including NRS

244.250] which provide that no person shall sue a governmental entity of this state for a

demand arising out of governmental tort unless he first presents a claim within 6 months from

the time such tort occurred are void and of no effect.”


____________

��89 Nev. 510, 510 (1973) Riley v. Warden��

BILLIE RAY RILEY, Appellant, v. WARDEN,


No. 7049

November 20, 1973 515 P.2d 1269

Appeal from order denying post-conviction petition for habeas relief, Eighth Judicial


The Supreme Court, Gunderson, J., held that when prosecution violated plea bargain by

making sentencing recommendation the sentencing judge, who stated that he would not

consider such remarks and ordered them stricken, erred in not �� +��


ascertaining whether defendant understood and accepted such attempt to correct the

prosecutor's breach.

Reversed with directions.




Criminal Law.

Where prosecution breached plea bargain by making sentencing recommendations, although in form

of policy statements, the sentencing judge, who declared that he would not be affected by such remarks

and ordered them stricken, should not merely have accepted appointed counsel's stipulation to such

attempt to correct prosecutor's breach but was obligated to ascertain whether defendant himself

voluntarily and understandingly consented to judge's attempt to correct the breach.

OPINION


Pursuant to a “plea bargain” whereby a prosecutor promised to drop four other charges,

and not to make any recommendation concerning sentencing, appellant pleaded guilty to one

charge of robbery. At the sentencing hearing, a different prosecutor violated the bargain,

stating:

“Your honor, recognizing it is your prerogative to sentence this defendant, the District

Attorney would like to go on record that it concurs in the Parole and Probation Report and

particularly in line with Mr. Woofter's statement that he felt a prison sentence should be dealt

out to those who engage in armed robberies.”

The sentencing judge said he would not consider these remarks and, on stipulation of the

prosecutor and appellant's court-appointed counsel, he ordered them “stricken.” 1 However,

he did not ascertain whether appellant understood and �� +��

____________________

1

The following colloquy occurred:

“The Court: The Court will not take into consideration the remarks of [the prosecutor] addressed to this

Court on March 23, 1972. As a matter of fact, these remarks may be stricken, if it is the stipulation of the parties.

“Prosecutor: The State would so move, your Honor.

“Defense Counsel: That's agreeable, your Honor.

“The Court: Very well.”


accepted this attempt to correct the prosecutor's breach. Shortly after the court imposed

sentence, appellant filed a post-conviction petition for habeas relief. The court denied that

petition; this appeal follows.

Unless his counsel effectively waived appellant's rights, this case is directly controlled by

the U.S. Supreme Court's decision in Santobello v. New York, 404 U.S. 257 (1971), wherein

one prosecutor made a recommendation concerning sentencing after another prosecutor had

promised none would be made. In such cases, the Court declared, the sentence must be

vacated and the state court must decide whether merely to enforce the plea bargain by

allowing a new sentencing hearing, or whether to afford the defendant an opportunity for trial

on the original charges. (Here, appellant asks only the former, less drastic relief.) As Mr.

Chief Justice Burger stated:

“On this record, petitioner ‘bargained' and negotiated for a particular plea in order to

secure dismissal of more serious charges, but also on condition that no sentence

recommendation would be made by the prosecutor. It is now conceded that the promise to

abstain from a recommendation was made, and at this stage the prosecution is not in a good

position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a

prosecutor's office have the burden of ‘letting the left hand know what the right hand is doing'

or has done. That the breach of agreement was inadvertent does not lessen its impact.” Id. at

262.

The State has attempted to justify the prosecutor's statement by suggesting it was not a

“recommendation,” but merely declared “the policy of the Clark County District Attorney

concerning the crime of armed robbery.” Although the district court correctly rejected that

rationalization, it denied appellant relief, believing it had cured the breach before sentencing

appellant. 2

It is true that the sentencing judge declared he would not be affected by the prosecutor's

statement. However, we can accord such a statement no more effect that the U.S. Supreme�� @�4��

____________________

2

In the Decision and Order now being appealed, the court stated:

“It is obvious, of course, that [the prosecutor's] statement evidenced a breach of the District Attorney's

promise not to make a sentence recommendation. However, in the factual pattern of this case, that breach alone

does not entitle defendant to the relief prayed for as the record clearly demonstrated that such breach not only

had no influence upon the Court's sentencing decision, but that before sentencing, the breach was rectified and

the promise was fulfilled.”


Court did in Santobello. 3 To do so would be futile, cf. Davis v. Warden, 88 Nev. 443, 498

P.2d 1346 (1972), and would merely force the public defender to waste public funds

redressing appellant's grievance in the federal court system. It is also true that appellant's

court-appointed counsel “stipulated” to the sentencing judge's attempt to correct the

prosecutor's breach. However, we believe before proceeding the sentencing judge was obliged

to ascertain that appellant himself voluntarily and understandingly consented to accept

something less than the relief to which he was entitled under Santobello. This conclusion

seems mandated by the U.S. Supreme Court's holding in Boykin v. Alabama, 395 U.S. 238

(1969), which we followed first in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970).

In Boykin, the Court declared that a state court may not accept a guilty plea without

canvassing the matter with the accused to assure that his plea is voluntarily and

understandingly entered. 395 U.S. at 243-244. The Court stated:

“Several federal constitutional rights are involved in a waiver that takes place when a plea

of guilty is entered in a state criminal trial. First, is the privilege against compulsory

self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason

of the Fourteenth. Malloy v. Hogan, 378 U.S. 1. Second, is the right to trial by jury. Duncan

v. Louisiana, 391 U.S. 145. Third, is the right to confront one's accusers. Pointer v. Texas,

380 U.S. 400. We cannot presume a waiver of these three important federal rights from a

silent record.” 395 U.S. at 243.

In the instant case, to obtain the prosecutor's silence, appellant agreed to forego all of the

valuable federal rights mentioned in Boykin. In effect, appellant exchanged those rights for

the right to be sentenced before a judge who would not be told that the prosecutor opposed

probation or believed a particular sentence to be appropriate. Under Santobello, this right�� #��

____________________

3

In this regard, Mr. Chief Justice Burger stated:

“. . . He [the sentencing judge] stated that the prosecutor's recommendation did not influence him and we

have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition

of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will best be

served by remanding the case to the state courts for further consideration. . . . We emphasize that this is in no

sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the

sentencing judge.” 404 U.S. at 262-263.


which appellant received in exchange for his original rights was also federally protected. It

would, we think, be illogical and unacceptable to the federal courts to say, although

appellant's original rights could only be lost upon a determination that appellant himself

waived them voluntarily and understandingly, that the right appellant received in exchange

could thereafter be waived by his counsel.

Accordingly, the district court's order denying appellant relief is reversed; the court is

directed to vacate appellant's sentence and to conduct a sentencing hearing before a different

judge as soon as practical after remittitur; the district attorney's staff is directed to refrain

from making any recommendation concerning the new sentence to be imposed.


____________

��89 Nev. 514, 514 (1973) Nevada State Dep't Motor Vehicles v. Turner��

NEVADA STATE DEPARTMENT OF MOTOR VEHICLES, Howard Hill, Director; and

DRIVERS LICENSE DIVISION, William A. Fitzpatrick, Chief, Appellants, v. LIZEOLA

TURNER, Respondent.

No. 7050

November 20, 1973 515 P.2d 1265

Appeal from order reinstating plaintiff-respondent's driver's license; Eighth Judicial

District Court, Clark County, Clarence Sundean, Judge.

Driver's license, which had been suspended under the demerit point system and

subsequently reinstated upon filing of insurance policy as proof of financial responsibility,

was again suspended when insurance policy lapsed. The driver filed a petition for review. The

district court ordered reinstatement of the license. Officers of the state appealed. The

Supreme Court, Mowbray, J., held that statutes requiring proof of financial responsibility

prior to reinstatement of a license suspended under any laws of the state applied to

suspensions under the demerit point system, and the license had been properly suspended

upon lapse of the policy.

Reversed.

Robert List, Attorney General, and Richard J. Bortolin, Deputy Attorney General, Carson

City, for Appellants.


Thomas L. Leen, Clark County Legal Services Program, Las Vegas, for Respondent.

1. Automobiles. Statutes requiring proof of financial responsibility prior to reinstatement of driver's license suspended

under any laws of state apply to suspensions under the demerit point system. NRS 483.010 et seq.,

483.470, subd. 8, 485.010 et seq., 485.306.

2. Automobiles. Driver's license, which had been suspended under demerit point system and subsequently reinstated upon

filing of insurance policy as proof of financial responsibility, was properly suspended again upon lapse of

policy. NRS 483.010 et seq., 483.470, subd. 8, 485.010 et seq., 485.306.

OPINION


Lizeola Turner's Nevada driver's license was suspended on April 19, 1971, by the Nevada

State Department of Motor Vehicles, for accumulating demerits under the demerit point

system in excess of the statutory maximum prescribed by NRS 483.470(8). The department

took such action after Turner had received demerits for each of 4 speeding violations between

June 30, 1970, and April 19, 1971.

This suspension was terminated on June 30, 1971, when Turner filed proof of financial

responsibility in the form of a liability insurance policy with the department. Since this filing

fulfilled the requirements of the Motor Vehicle Safety Responsibility Act, chapter 485 of the

Nevada Revised Statutes, Turner's driver's license was reinstated on July 7, 1971.

On February 7, 1972, the department again suspended Turner's driver's license when the

insurance policy lapsed and Turner was unable to continue proof of financial responsibility.

This second suspension was for 3 years or until Turner again filed and maintained proof of

financial responsibility with the department.

Thereafter, on February 16, 1972, Turner filed a petition for review of the department's

action in the Eighth Judicial District Court. On June 22, 1972, the trial judge ordered the

department to reinstate Turner's driver's license, holding the provisions of chapter 485 of the

Nevada Revised Statutes inapplicable to suspensions imposed under the demerit point system

of NRS 483.470(8).

The sole issue with which this court is concerned is whether �� $%�!'(�@/"��;��G�� %�� *�� +�� $%��!'@�!=/>'?�&�3��


the provisions of NRS 485.306 of the Motor Vehicle Safety Responsibility Act 1 apply to

drivers' license suspensions imposed under NRS 483.470(8). 2 We hold that those provisions

do apply, and we therefore reverse the ruling of the trial judge. A brief review of the

legislative history of both provisions supports this result.

In 1941, the Nevada Legislature enacted chapter 6 of the Uniform Vehicle Code, dealing

with drivers' licenses. See chapter 483 of NRS. It amended this chapter in 1963 by adding the

recommended provisions of the demerit point system, NRS 483.470, which was established

for the purpose of identifying habitually reckless or negligent drivers or habitual or frequent

violators of traffic regulations. Suspension of drivers' licenses had already been authorized for

such drivers and violators.

In 1949, the Nevada Legislature enacted chapter 7 of the L� ��G�� $��+��;��G�� %�� *��!'(��$%��

____________________

1

NRS 485.306:

“1. Whenever the [drivers' license] division, under any law of this state, suspends or revokes the license of

any person upon receiving a record of a conviction or a forfeiture of bail, the division shall also suspend the

registration for all motor vehicles registered in the name of such person, except that it shall not suspend such

registration, unless otherwise required by law, if such person has previously given or shall immediately give and

thereafter maintain proof of financial responsibility with respect to all motor vehicles registered by such person.

“2. Such license and registration shall remain suspended or revoked and shall not at any time thereafter be

renewed, nor shall any license be thereafter issued to such person, nor shall any motor vehicle be thereafter

registered in the name of such person until permitted under the motor vehicle laws of this state and not then

unless and until he shall give and thereafter maintain proof of financial responsibility.

“3. If a person is not licensed, but by final order or judgment is convicted of or forfeits any bail or collateral

deposited to secure an appearance for trial for any offense requiring the suspension or revocation of a license, or

for operating a motor vehicle upon the highways without being licensed to do so, or for operating an

unregistered motor vehicle upon the highways, no license shall be thereafter issued to such person and no motor

vehicle shall continue to be registered or thereafter be registered in the name of such person until he shall give

and thereafter maintain proof of financial responsibility.

“4. Whenever the division suspends or revokes a nonresident's operating privilege by reason of a conviction

or forfeiture of bail, such privilege shall remain so suspended or revoked unless such person shall have

previously given or shall immediately give and thereafter maintain proof of financial responsibility.”

2


“8. Whenever any licensee has accumulated 12 demerit points the department [of motor vehicles] shall

suspend the license of such licensee until the total of his demerits has dropped below 12 demerits in the next

preceding 12 months.”


Uniform Vehicle Code as Nevada's Motor Vehicle Safety Responsibility Act, chapter 485 of

NRS. This act was amended in 1957 by adding a new section that prohibits reinstating a

license suspended “under any law of this state”, unless the person whose license was

suspended gives and maintains proof of financial responsibility.

[Headnotes 1, 2]

It was the express intention of the National Committee on Uniform Traffic Laws and

Ordinances in preparing the Uniform Vehicle Code that those provisions requiring proof of

financial responsibility prior to the reinstatement of a license suspended under any laws of the

state should be read in conjunction with and apply to suspensions under the demerit point

system. Uniform Vehicle Code § 7-304, n. 3 (1968 version). Since the Nevada Legislature

enacted provisions identical to those recommended by the National Committee, variations

occurring only where it was necessary to conform the Code to existing state law or the style

of Nevada Revised Statutes, it follows that the Legislature also adopted this intent. The law of

other jurisdictions supports this conclusion. Meyers v. State Comm'r of Highways, 166

N.W.2d 717 (Minn. 1969); Danner v. Hass, 134 N.W.2d 534 (Iowa 1965); 33 Iowa L.Rev.

522, 533 (1948).

The established law in this State that legislative acts are to be construed so that all parts

thereof are harmonious authorizes the 3-year license suspension under NRS 485.3099, even

though NRS 483.490 limits the length of time licenses may be suspended under chapter 483

to 1 year. Board of County Comm'rs v. Schmidt, 39 Nev. 456, 157 P. 1073 (1916). The

provisions of each chapter apply independently to violations of each respective chapter.

Under chapter 483, a suspension is created because of violation of traffic laws; under chapter

485, a refusal to reinstate occurs because of a failure to file proof of financial responsibility

and maintain such proof for the statutory period.

It was therefore error for the lower court to conclude that the provisions of chapter 485 of

NRS did not apply to chapter 483; accordingly, we reverse the decision of the lower court.


____________

��89 Nev. 518, 518 (1973) Turpin v. State��

BERNARD LEE TURPIN, Appellant, v. THE


No. 7196

November 20, 1973 515 P.2d 1271

Appeal from judgments of conviction for robbery and rape with substantial bodily harm;

Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.

The Supreme Court, Thompson, C. J., held that petition which sought certification of

juvenile to stand trial as an adult and which charged rape was broad enough to include

offense of forcible rape resulting in substantial bodily harm or the offense of forcible rape

without substantial bodily harm and defendant was not entitled to reversal of conviction on

ground that he was charged with a crime more serious than the one for which he was certified

to stand trial and that defendant waived right to challenge specificity in certification papers by

not taking direct appeal on challenge to the papers.

Affirmed.

Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Deputy Public Defender,




1. Infants. Petition for certification of juvenile to stand trial as an adult should adequately apprise juvenile of

specific charges against him.

2. Infants. Although petition for certification of juvenile to stand trial as an adult did not specify whether the

charged forcible rape was with or without bodily harm, juvenile was not entitled to reversal of conviction

of crime of forcible rape resulting in substantial bodily harm on ground that he was charged with a crime

more serious than that for which he was certified to stand trial. NRS 200.363.

3. Infants. Defect of lack of specificity in papers certifying juvenile to stand trial as an adult is subject to challenge

by appeal. NRS 62.280.

4. Infants. Defendant who does not challenge papers certifying him to stand trial as an adult by appeal on ground of

lack of specificity ��


waives the right to present that issue following trial and conviction. NRS 62.280.

OPINION


Bernard Lee Turpin, a juvenile, was certified to stand trial as an adult for the felony

offenses of burglary, robbery, assault with a deadly weapon, and forcible rape. Following

such certification he was indicted for the crimes of robbery and forcible rape with substantial

bodily harm. Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971). A jury found him guilty

of the offenses for which he was indicted and judgments of conviction were duly entered. He

presently is serving a ten-year sentence for robbery, and a sentence of life with the possibility

of parole for forcible rape with substantial bodily harm. The sentences are to run

concurrently.

The conviction for robbery is not challenged. However, we are requested to set aside the

rape conviction on the premise that he was certified to be tried as an adult for the crime of

forcible rape, but instead was indicted and tried for the offense of forcible rape with

substantial bodily harm which requires additional proof and carries a more severe penalty. 1

Two distinct crimes are specified by NRS 200.363. The first crime mentioned is forcible

rape with substantial bodily harm.

____________________

1

NRS 200.363 then read:

1. Forcible rape is the carnal knowledge of a female against her will. A person convicted of forcible rape

shall be punished:

(a) If substantial bodily harm results:

(1) By death; or

(2) By imprisonment for life without possibility of parole; or

(3) By imprisonment for life with the possibility of parole, eligibility for which begins when a minimum

of 10 years has been served.

(b) If no substantial bodily harm results:

(1) By imprisonment for life; or

(2) By imprisonment for a definite term of not less than 5 years. Under either sentence eligibility for

parole begins when a minimum of 5 years has been served.

2. Whether substantial bodily harm has resulted and, if so, the punishment to be inflicted shall be

determined:

(a) Upon a plea of not guilty, by the jury.

(b) Upon a plea of guilty or a confession in open court without a jury, by the court.

That statute has since been amended to delete the death penalty. See: Stats. Nev. 1973, at 1805.


The other offense specified is forcible rape without substantial bodily harm. It is apparent that

the statute embraces two offenses since the proof required to establish the latter offense will

not prove the former, and the penalty for each is different.

[Headnotes 1, 2]

The petition for certification should adequately apprise the juvenile of the specific charges

against him. A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 490 P.2d 1248 (1971). In

this case, the petition was not specific. It did not specify whether the forcible rape was with or

without substantial bodily harm. It merely charged rape in violation of NRS 200.363, and

consequently was broad enough to include either offense. The same is true with regard to the

order of certification. Although we heretofore have ruled that a juvenile offender may not be

charged with a crime more serious than that for which he was certified to stand trial, Junior v.

State, 89 Nev. 121, 507 P.2d 1037 (1973), that circumstance may not be said to have occurred

in this case. The order of certification was broad enough to include either of the two offenses,

and the accused was charged by indictment with having committed rape with substantial

bodily harm, the greater offense.

[Headnotes 3, 4]

We do not wish to be understood as approving the lack of specificity in the certification

papers. That defect, however, was subject to challenge by appeal. NRS 62.280; Lewis v.

State, 86 Nev. 889, 478 P.2d 168 (1970). That remedy was not pursued. Consequently, the

defendant thereby waived his right to present that issue following his trial on a specific charge

and his conviction therefor. Cf. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966);

Skinner v. State, 83 Nev. 380, 432 P.2d 675 (1967); George v. State, 89 Nev. 47, 505 P.2d

1217(1973).

The other claim of error does not warrant discussion and is denied peremptorily.

Affirmed.


____________

��89 Nev. 521, 521 (1973) Sheriff v. Randono��

SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.

EUGENE CHARLES RANDONO, Respondent.

No. 7503

November 20, 1973 515 P.2d 1267

Appeal from an order granting writ of habeas corpus, Eighth Judicial District Court, Clark


Accused who had been arrested pursuant to executive warrant sought writ of habeas

corpus. The district court granted the writ and sheriff appealed. The Supreme Court, Batjer,

J., held that accused's contention that his constitutional rights might be violated if he were to

be extradited, inasmuch as he had heart condition and probable incarceration after imposition

of sentence might be detrimental to his health, could not properly be raised in courts of

asylum state absent showing that relief was unavailable to him in courts of demanding state.

Reversed.

Robert List, Attorney General, and William E. Isaeff, Deputy Attorney General, Carson

City, for Appellant.

Beckley, DeLanoy & Jemison, and Richard W. Myers, of Las Vegas, for Respondent.

1. Extradition. Court in asylum state cannot hear and determine guilt or innocence of accused as to crime with which he

is charged or the constitutional validity of phases of anticipated penal action by the demanding state.

2. Habeas Corpus. Anticipated ill-treatment in demanding state is not within contemplation of statute providing that after

issuance of executive warrant, legality of arrest may be challenged by habeas. NRS 179.197.

3. Habeas Corpus. Accused, who had been arrested pursuant to executive warrant providing for his surrender to authorities

of demanding state, could not properly raise contention in habeas corpus proceeding in asylum state that

his constitutional rights might be violated if he were to be extradited inasmuch as he had heart condition

and probable incarceration after imposition of sentence might be detrimental to his health absent showing

that relief was unavailable in courts of demanding state; such contention should properly have been made

in courts of demanding state. U.S.C.A.Const. art. 4, § 2; NRS 179.177-179.235, 179.197.


4. Extradition. Extradition procedures contemplate prompt return of fugitive from justice upon request from demanding

state. U.S.C.A.Const. art. 4, § 2; NRS 179.177-179.235.

OPINION


On April 16, 1973, a jury in Orange County, California, found respondent guilty of two

felonies. The trial judge scheduled sentencing for May 17, 1973, and permitted respondent to

remain free on bail pending imposition of sentence. Respondent failed to appear for

sentencing in the California Court, a bench warrant issued and extradition proceedings were

commenced.

The Governor of California requested from the Governor of Nevada the extradition of

Randono and on July 16, 1973, the Governor of Nevada issued an executive warrant

providing for Randono's arrest and surrender to the California authorities. Randono was

arrested but was granted a writ of habeas corpus by the district court and was released from

custody. The appellant contends the writ was improperly issued. We agree.

In granting habeas the lower court concluded that Randono's constitutional rights might be

violated if he were to be extradited inasmuch as he has a “heart condition” and “probable

incarceration” after imposition of sentence might be detrimental to his health.

“Habeas corpus is the proper process for testing the validity of the arrest and detention by

the authorities of the asylum state for extradition purposes. But a petition for a writ for that

purpose tests only that detention; it does not test the validity of the original or the

contemplated incarceration in the demanding state. . . . In essence the rule is that the court

may determine whether a crime has been charged in the demanding state, whether the fugitive

in custody is the person so charged, and whether the fugitive was in the demanding state at

the time the alleged crime was committed.” Johnson v. Matthews, 182 F.2d 677, 679

(D.C.Cir. 1950). [Emphasis added.] See Compton v. Alabama, 214 U.S. 1 (1909).

[Headnote 1]

A court in the asylum state cannot hear and determine the guilt or innocence of the accused

as to the crime of which he is ��


charged or the constitutional validity of phases of the anticipated penal action by the

demanding state.

[Headnotes 2, 3]

Here the rationale of the district court is that Randono might not get fair treatment in the

California court. Anticipated ill treatment in the demanding state is not within the

contemplation of NRS 179.197 which provides that after the issuance of the executive

warrant the legality of the arrest may be challenged by habeas. No authority has been cited,

nor have we found any, that would authorize a trial judge to anticipate a potential violation of

the constitutional rights of an accused if he is extradited to the demanding state. To the

contrary, habeas has been denied where there has been a fear of lynching (Commonwealth v.

Baldi, 70 A.2d 439 (Pa. Super. 1950)); fear of a cruel and barbarous punishment and

treatment (Commonwealth v. Ruch, 110 A.2d 240 (Pa. 1955)); and fear of racial prejudice

(People v. Warden of City Prison, 63 N.Y.S.2d 620 (Sup.Ct. N.Y. Co. 1946)). See also,

Johnson v. Matthews, supra; Ex Parte Dukes, 97 A.2d 507 (N.J. Super. 1953), cert. den. 347

U.S. 914 (1954); Ex Parte Marshall, 85 F.Supp. 771 (D.C.N.J. 1949); United States ex rel.

Faris v. McClain, 42 F.Supp. 429 (D.C.Pa. 1942). Likewise, the question of the sanity of an

accused is not to be decided in a habeas proceeding in an asylum state. See Charlton v. Kelly,

229 U.S. 447 (1913); Luker v. Koch, 489 P.2d 191 (Colo. 1971). Annot., 114 A.L.R. 693.

[Headnote 4]

Extradition procedures contemplate the prompt return of a fugitive from justice upon a

request from the demanding state. United States Constitution, Art. IV, Sec. 2.; Uniform

Criminal Extradition Act, NRS 179.177-NRS 179.235. Respondent makes no showing that

relief is unavailable to him in the courts of California. The contentions which the respondent

has made to the district court should more properly be made in the courts of California. See

Sweeney v. Woodall, 344 U.S. 86 (1952).

Reversed.


____________

��89 Nev. 524, 524 (1973) Fairchild v. Warden��

WILLIAM WALLACE FAIRCHILD, Appellant, v.

WARDEN, NEVADA STATE PRISON, Respondent.

No. 7041

November 20, 1973 516 P.2d 106

Appeal from order denying post-conviction relief, Second Judicial District Court, Washoe

County; Thomas O. Craven, Judge.

The Supreme Court, Batjer, J., held that appointment of counsel for indigent probationer

was not required at revocation hearing, where probationer admitted violation of his probation

and neither claimed nor suggested any mitigating circumstances.

Affirmed.



Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for

Respondent.

Criminal Law.

Appointment of counsel for indigent probationer was not required at revocation hearing, where

probationer admitted violation of his probation and neither claimed nor suggested any mitigating

circumstances.

OPINION


In 1966 appellant plead guilty to a charge of felony drunk driving and was sentenced to a

term of one to ten years in the state prison. The trial court suspended the sentence and granted

probation for a period of five years.

In 1968 appellant was charged with violating the conditions of his probation. At the

revocation hearing he claimed indigency and requested the appointment of counsel which was

refused; however, the district court did instruct a member of the public defender's staff to be

present during the proceedings. As the hearing progressed appellant admitted the charges and

offered no evidence of mitigating circumstances. The trial court entered an order revoking

probation and remanded appellant to the state prison to serve the sentence originally ��


imposed. Subsequently, appellant sought his release from confinement through

post-conviction proceedings (NRS 177.315 et seq.) contending that his constitutional rights

were infringed because he was not afforded the assistance of counsel at the revocation

hearing. The trial court rejected the contention and this appeal followed.

In Shum v. Fogliani, 82 Nev. 156, 413 P.2d 495 (1966), we held that an indigent person on

probation is not entitled to appointed counsel at a revocation hearing if sentence had already

been imposed for his underlying felony conviction, and the execution thereof had been

suspended. The rationale of Shum was that revocation proceedings were not a “critical stage”

of the criminal process. We continued to adhere to the Shum rule until our decision in Rahn v.

Warden, 88 Nev. 429, 498 P.2d 1344 (1972), where we elected to adopt the rule announced in

Flint v. Hocker, 462 F.2d 590 (9th Cir. 1972), and remanded the matter to the district court

for a new revocation hearing and the appointment of counsel to represent Russell C. Rahn.

In Flint, supra, it was concluded that because revocation of probation in Nevada had the

effect of enhancing punishment, it was a “critical stage” of the criminal process, and the

appointment of counsel was mandatory.

In Gagnon v. Scarpelli, 411 U.S. 778 (1973), decided after Flint and Rahn, the United

States Supreme Court held that counsel should be provided if, “the probationer . . . makes

such a request [for appointment of counsel], based on a timely and colorable claim (i) that he

has not committed the alleged violation of the conditions upon which he is at liberty; or (ii)

that, even if the violation is a matter of public record or is uncontested, there are substantial

reasons which justified or mitigated the violation and made revocation inappropriate and that

the reasons are complex or otherwise difficult to develop or present.” [Ultimately], “the

decision as to the need for counsel must be made on a case-by-case basis in the exercise of a

sound discretion by the state authority charged with responsibility for administering the

probation . . . system.” 411 U.S. at 790.

Appellant argues that our ruling in Rahn v. Warden, supra, compels us to reverse. We do

not agree.

The standards for the appointment of counsel at a probation revocation hearing as

announced in Gagnon limit the necessity for such appointment. We will adhere to those

standards in applying the rule of Rahn v. Warden, supra.

In the instant case appellant candidly admits the violation ��


of his probation and has neither claimed nor suggested any mitigating circumstances. The

appointment of counsel was not required; his petition for post-conviction relief was properly

denied by the lower court.

Affirmed.


____________

��89 Nev. 526, 526 (1973) City of Las Vegas v. Bolden��

CITY OF LAS VEGAS, a Political Subdivision of the State of Nevada, Appellant, v. LARRY

C. BOLDEN, Respondent.

No. 7270

November 26, 1973 516 P.2d 110

Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.

Compton, Judge.

Petition for review of order of Civil Service Board which had ruled that petitioner who had

taken and passed written promotional examination for advancement to rank of police captain

should not be certified to the eligibility list for that promotion. The district court entered

judgment granting the petition and city appealed. The Supreme Court held that where record

made before the Civil Service Board was not properly docketed in reviewing court, it would

be assumed that the record supported the lower court's findings.

Affirmed.

Carl E. Lovell, Jr., City Attorney, and R. Ian Ross, Assistant City Attorney, of Las Vegas,

for Appellant.

Fadgen & Johnson, of Las Vegas, for Respondent.

1. Municipal Corporations. Where record made in city Civil Service Board which had ruled that petitioner who had taken and passed

written promotional examination for advancement to rank of police captain should not be certified to the

eligibility list for that promotion was not properly docketed in reviewing court, it would be assumed that

the record supported the lower court's findings in granting a petition for review.

2. Appeal and Error. When evidence on which a district court's judgment rests is �� +��

��89 Nev. 526, 527 (1973) City of Las Vegas v. Bolden��

not properly included in the record on appeal, it is assumed that the record supports the lower court's

findings.

OPINION

Per Curiam:

This is an appeal from a judgment of the district court granting Respondent Larry C.

Bolden's petition for review of an order of the Civil Service Board of Las Vegas, which had

ruled that Bolden, who had taken and passed the written promotional examination for

advancement to the rank of police captain, should not be certified to the eligibility list for that

promotion.

[Headnotes 1, 2]

Appellant suggests that the lower court erred in deciding that the action of the Civil

Service Board amounted to an abuse of discretion. The record made before the Civil Service

Board was not properly docketed in this court. When evidence on which a district court's

judgment rests is not properly included in the record on appeal, it is assumed that the record

supports the lower court's findings. Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304 (1972);

Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (1971); Pfister v. Shelton, 69 Nev. 309, 250

P.2d 239 (1952).


____________

��89 Nev. 527, 527 (1973) Goldstein v. State��

STUART M. GOLDSTEIN, Appellant, v. THE


No. 6911

November 26, 1973 516 P.2d 111

Interlocutory appeal from an order denying motion to suppress evidence; Eighth Judicial

District Court, Clark County; Joseph S. Pavlikowski, Judge.

The Supreme Court, Thompson, C. J., held that, where defendant had first been advised of

his constitutional rights in conformance with the Miranda decision, the fact that defendant

confessed to police when they knew, but he did not, that his ��


father had secured counsel for him, did not make the confession inadmissible.

Affirmed.

Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Appellant.



Criminal Law.

Where defendant confessed to police after having properly been warned of his constitutional rights as

required by Miranda decision and when police knew, but defendant did not, that defendant's father had

obtained counsel to represent him, confession was not inadmissible because it was made without counsel

being present. U.S.C.A.Const. Amends. 5, 6; NRS 177.015, subd. 1(b)(2).

OPINION


This appeal is from an interlocutory order of the district court denying a motion to

suppress the defendant's oral confession of a homicide given to police officers on November

16, 1970. 1 The main claim of error is that the interrogating officer to whom the defendant

orally confessed knew that his father had secured counsel for him, but questioned him in the

absence of such counsel in violation of the Sixth Amendment. 2 At the time of interrogation

the defendant did not know that counsel had been retained by his father.

The Sixth Amendment provides, among other things, that in all criminal prosecutions, the

accused shall have the assistance of counsel for his defense. In Escobedo v. Illinois, 378 U.S.

478 (1964), the United States Supreme Court endeavored to define that right with regard to

custodial interrogation. The Court wrote: “We hold, therefore, that where, as here, the

investigation is no longer a general inquiry into an unsolved �� )�� I��*�� +� �� #��*�� I�� ,��*��+6 ��3� �� @=&�L��@@(��@!&��'@��

____________________

1

This appeal was perfected before the repeal of NRS 177.015(1)(b)(2). See: Nev. Stats. ch. 730, at 1489-90

(1973).

2

We are not here primarily concerned with the Fifth Amendment privilege against self-incrimination since

there is substantial evidence to show that the officer, prior to questioning, fully complied with the commands of

Miranda v. Arizona, 384 U.S. 436 (1966).


crime but has begun to focus on a particular suspect, the suspect has been taken into police

custody, the police carry out a process of interrogation that lends itself to eliciting

incriminating statements, the suspect has requested and been denied an opportunity to consult

with his lawyer, and the police have not effectively warned him of his absolute constitutional

right to remain silent, the accused has been denied ‘the Assistance of Counsel' in violation of

the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the

Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. 335 at 342, 83 S.Ct. 792, 9 L.Ed.2d

799, and that no statement elicited by the police during the interrogation may be used against

him at a criminal trial.”

The carefully limited holding of Escobedo has received both a narrow and an ample

reading by courts called upon to consider it. See footnote 17 to the dissenting opinion of

Justice Harlan in Miranda v. Arizona, 384 U.S. 436 (1966), where the cases are collected.

Nevada, in line with the weight of case authority, has narrowly construed Escobedo. We have

ruled that each of the factors specified in the holding must be present before the doctrine there

announced is applicable. Bean v. State, 81 Nev. 25, 29, 398 P.2d 251 (1965); Hall v. Warden,

83 Nev. 446, 452, 434 P.2d 425 (1967). For example, if the suspect did not request the right

to consult with counsel the rule of Escobedo is inapposite. Bean v. State, supra; Hall v.

Warden, supra; cf. White v. State, 82 Nev. 304, 417 P.2d 592 (1966); Guyette v. State, 84

Nev. 160, 438 P.2d 244 (1968). No such request was made in the case before us.

We do not consider the interrogating officer's knowledge that the suspect's father had

retained counsel for him to be the equivalent of a request for counsel by the suspect within

the contemplation of Escobedo where the circumstances show that prior to questioning, the

suspect was advised of his absolute right to remain silent, that anything he said could be used

against him, that he could consult with an attorney and have an attorney present with him

during the interrogation, and that if he was indigent a lawyer would be appointed to represent

him. In short, we hold that the officer's compliance with the commands of Miranda v.

Arizona effectively protected not only the suspect's Fifth Amendment privilege against

self-incrimination, but his Sixth Amendment right to counsel as well. Indeed, in Guyette v.

State, 84 Nev. 160, 438 P.2d 244 (1968), we held that a suspect's Sixth Amendment right to

counsel as defined in Escobedo was protected if he was advised of his absolute right to

remain silent, that anything he said �� "(�


would be used against him, and that he had the right to consult with retained counsel prior to

interrogation. Id. at 165. The interrogations in Guyette occurred before Miranda was decided.

If the warnings given in Guyette adequately protected the suspect's Sixth Amendment right to

counsel as delineated in Escobedo, it follows inevitably that the full Miranda warnings given

in the case at hand accomplished the same end.

Although the oral confession of November 16, 1970, also is challenged on the ground that

it was coerced, it was permissible for the judge to find otherwise.

Affirmed.

Mowbray, Batjer, and Zenoff, JJ., concur.


In light of prior United States Supreme Court decisions, the investigating officer's actions

obviously pose grave constitutional problems. However, for reasons other than those stated

by Chief Justice Thompson, I believe such decisions do not absolutely mandate a holding that

appellant's confession is inadmissible. Hence, as suppression of appellant's confession might

also require the district court to suppress evidence of the victim's death, as “fruit of the

poisoned tree,” I believe proper judicial restraint requires us to affirm the district court.

Still, I concur separately, because I consider it dubious constitutional doctrine to say that a

policeman may interrogate an accused in his counsel's absence, although he well knows the

accused has requested and obtained counsel, provided he first recites a “Miranda warning.” In

the Miranda case itself, the U.S. Supreme Court made it clear that as soon as an accused

indicates by any means his election to remain silent, or invokes his right to counsel, the police

must respect his choice. 384 U.S. at 473-474.

I believe we can affirm the lower court without seeming to approve general use of a

doubtful police practice, which may hereafter jeopardize the prosecution of offenses equally

as serious as the one here concerned. In the instant case, appellant was interrogated,

investigation had not proceeded beyond “a general inquiry into an unsolved crime,” because it

was not then even known that anyone was dead. The investigation was, rather, an inquiry to

determine if indeed there was a crime to be solved, and therefore not clearly within the

purview of prior federal cases.

____________

��89 Nev. 531, 531 (1973) Langson Constr. Co. v. Nevada Sav. & Loan��

LANGSON CONSTRUCTION CO., INC., a Corporation, and DON R. LANGSON,

Appellants, v. NEVADA SAVINGS AND LOAN ASSOCIATION, a Corporation,

Respondent.

No. 6994

November 27, 1973 516 P.2d 105

Appeal from judgment of Eighth Judicial District Court, Clark County; Michael J.

Wendell, Judge.

Savings and loan association brought action against construction company and individual

for deficiency judgments on two promissory notes. The district court held that interest in the

loan fees was not usurious and entered judgment in favor of the association, and construction

company and individual appealed. The Supreme Court held that where notes called for

payment of interest, additional interest upon default, percentage points as loan and

construction control fee, percentage points as loan origination fee, and points for gifts to

thrift, and where no expert testimony or evidence was presented to elucidate computation of

the percentage rates, court could not arrive at conclusion on issue of usury and would remand

for purpose of receiving testimony on the issue of usury and for clarification of the various

charges imposed by the association.


Raymond E. Sutton, of Las Vegas, for Appellants.

Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.

Appeal and Error.

Where promissory notes called for payment of interest, additional interest upon default, percentage

points as loan and construction control fees, percentage points for loan origination fee, and points for

gifts to thrift, and where no expert testimony or evidence was presented to elucidate the computation of

the percentage rates or to clarify the various charges imposed by the payee, court could not arrive at

conclusion as to whether notes were usurious and case would be remanded for receiving of testimony on

the issue of usury and for clarification of the various fees. NRS 99.050, 673.330.

OPINION

Per Curiam:

Respondent sought successfully in the lower court to recover deficiency judgments against

the appellants on two promissory notes.


The first note, secured by a deed of trust, was executed by the appellant Langson

Construction Company on October 26, 1962 for $1,348,600. The note provided for interest at

the rate of 6 percent per annum payable in monthly installments of $7,417. An additional 3

percent would be payable on the monthly installments during any period of default. Appellant

was charged 4.5 percentage points as a loan and construction control fee. On September 27,

1963 respondent made an additional loan of $176,230 to the appellants. A second promissory

note was taken in connection with this transaction incorporating the interest and payment

terms of the first. Respondent charged 3 points for the additional loan. At the same time the

two promissory notes were guaranteed by appellant Langson and a modification agreement

was executed by Langson and the respondent extending both loans to April 10, 1964.

The second major loan transaction took place in March of 1963. The appellant Langson

Construction gave the respondent its secured note in the amount of $1,080,000. The term of

the loan was for one year at 8 percent interest. An additional 3 percent was to be charged

during any period of default. Respondent charged the appellant 4 points as a “loan origination

fee,” 2 points for “construction control,” and 2 points for “gifts to thrift.” In September of

1963 Don Langson was personally substituted for the corporation's obligation. The interest

rate was reduced to 7 percent and the note was extended to March of 1988. Respondent was

charged a 2 percent loan fee for this modification.

Following trial of the case the trial court found, as a matter of law, that the interest and

loan fees charged by the respondent were not usurious.

The sole issue on appeal is whether this holding was error in light of NRS 99.050,

673.330.

During the trial apparently none of the parties directly addressed the usury question by way

of presentation of expert testimony or evidence. Yet, by reason of the formal findings of the

court consideration of that question is indicated. Without the testimony of a qualified expert

to elucidate the computation of the annual percentage rates and effect of the subsequent

modifications of both loans on such interest rates we are without support in the record to

arrive at an intelligent conclusion on the issue of usury. We are remanding for the purpose of

receiving testimony on the usury issue and for clarification of ��0� �� 2��


the “gifts for thrift” and the various other charges imposed by the respondent.


____________

��89 Nev. 533, 533 (1973) Forman v. Eagle Thrifty Drugs & Markets��

WILLIAM FORMAN, et. al., Appellants and Cross-Respondents, v. EAGLE THRIFTY

DRUGS AND MARKETS, INC., Respondent and Cross-Appellant.

No. 7045

November 27, 1973 516 P.2d 1234

Appeal from judgment of the Second Judicial District Court, Washoe County; Kenneth L.

Mann, Judge.

Individuals brought class action to prohibit rezoning of certain land. After the district court

granted summary judgment in favor of individuals, the proposed zoning ordinance was

passed by referendum at an election in which an initiative, the effect of which would have

been to prohibit the proposed rezoning, was also passed. The trial court entered final

judgment in favor of landowner and individuals appealed. The Supreme Court, Zenoff, J.,

held that where landowner was not misled by notice of appeal, appeal would not be dismissed

for want of jurisdiction on grounds of defective notice of appeal as to which order was being

appealed; that once a zoning policy has been determined, the changing of classification of

areas is not subject to initiative or referendum; and that where the proposed land use change

was not inconsistent with the objectives or the comprehensive planning of the city, where the

change would not materially affect the residential character of the neighborhood and where

the change was not an arbitrary or unreasonable exercise of police power, rezoning was

proper.

Affirmed.

[Rehearing denied January 15, 1974]

Stewart, Horton & McKissick, Ltd., of Reno, for Appellants and Cross-Respondents.

Robinson & Cassas, of Reno, for Respondent and Cross-Appellant.


1. Appeal and Error.

Partial summary judgment is not an appealable determination. NRCP 54(b).

2. Appeal and Error. Where appellants, after entry of final judgment, timely filed notice of appeal which clearly revealed their

intent to appeal from prior entry of partial summary judgment, which was not an appealable order when it

was entered, and where there was no showing that respondent was materially misled by the notice, appeal

would not be dismissed for want of jurisdiction on grounds of defective notice of appeal. NRCP 72(a),

73(b).

3. Statutes. “Initiative” is that power reserved to the people to propose new laws and “referendum” gives them the

power to veto those laws passed by their representatives but this plebiscite applies only to legislation and

administrative acts are exempted from initiative and referendum. Const. art. 19, §§ 2, 4.

4. Municipal Corporations; Statutes.

Whether or not citizens of a state wish to embark upon a policy of zoning is a matter subject to

referendum and initiative, but when such policy has been determined and the changing of such areas or the

granting of exceptions has been committed to the planning commission and the city council, such action is

administrative and not subject to referendum or initiative.

5. Zoning. Power to zone must be found in the police power insofar as in its exercise it imposes use restrictions on

property without payment of compensation and the enactment and enforcement of zoning laws are valid

exercises of the police power which is inherent in the state and which can be delegated to municipal

corporations.

6. Constitutional Law; Zoning. Governing body of a city has the power to change land use classifications, but zoning ordinances must

observe state and federal constitutional provisions, including that of due process.

7. Zoning. Where land use change was not inconsistent with objectives of comprehensive planning, where such

change would not materially affect the residential character of a land use district and where change was not

an arbitrary or unreasonable exercise of police power, granting of zoning change was proper.

OPINION


This case is before us after protracted litigation in the lower court. The relevant facts are

largely of a procedural nature.

Respondent Eagle Thrifty Drugs and Markets, Inc., owns a three and one-half acre parcel

situated at the intersection of ;��<� ��-��<� �� %��$��


Mayberry Drive and Hunter Lake Drive in Reno, Nevada. In 1967 Eagle Thrifty sought a

change in land use for the entire parcel to C-1b, which is neighborhood shopping center

commercial. The land use change was denied by the city planning commission but later

granted by the Reno City Council following appeal to that body. The action by the city

council was by way of Ordinance Number 1880. Thereafter a class action was filed against

Eagle Thrifty and the City of Reno alleging various causes of action which germinated from

the adoption of this ordinance.

On August 28, 1970 the trial court granted the appellants' motion for summary judgment

as to its first cause of action seeking to restrain construction of a supermarket on the rezoned

parcel. The trial court found that the city council acted improperly by enacting the ordinance

in question. Said summary judgment was entered on October 13, 1970 pursuant to NRCP

54(b). No appeal was taken.

Before judgment was entered the residents of the City of Reno approved Ordinance

Number 1880 in a “referendum” election and adopted by way of “initiative” an amendment to

the Reno zoning law providing that no industrial or commercial use be allowed within 300

feet of property used for elementary or junior high school purposes. The Eagle Thrifty

property rezoned by Ordinance Number 1880 lies within 300 feet of a grammar school.

Following the election, on motion of the respondent, the trial court reopened the case to

receive additional testimony and “vacated” and set aside the October 13 summary judgment

in favor of the appellants. After hearing additional testimony the trial court granted the

respondent's motion for summary judgment on appellants' first cause of action, all other

causes of action having been dismissed. Partial summary judgment was entered on July 29,

1971 and appellants were given leave to file an amended complaint attacking the referendum

ordinance. Appellants filed a supplemental complaint and the matter proceeded to trial. Final

judgment was entered in favor of the respondent on July 12, 1972.

1. Before we address the merits of the appellants' contentions we must dispose of an

alleged procedural defect in the notice of appeal.

[Headnote 1]

Appellants have appealed from a final judgment of the trial court entered July 12, 1972. In

support of their appeal, however, appellants attack only the judgment of the district court��8��& �� =��


entered on July 29, 1971 granting partial summary judgment to the respondent. There was no

appealable determination of this order pursuant to Rule 54(b).

[Headnote 2]

Former Nevada Rule of Civil Procedure, Rule 73(b) (now Rule 3(c) of the Nevada Rules

of Appellate Procedure), required that “the notice of appeal shall . . . designate the judgment

or part thereof appealed from. . . .” The notice filed by the appellants fails to specify that

appeal is taken from the July 29 judgment. However, for purposes of taking an appeal

pursuant to NRCP 72(a) (now NRAP 3A(b)(1)), this judgment did not become a final

judgment until July 12, 1972.

The filing of a simple notice of appeal was intended to take the place of more complicated

procedures to obtain review and the notice should not be used as a technical trap for the

unwary draftsman. Jones v. Chaney & James Construction Co., 399 F.2d 84 (5th Cir. 1968).

A defective notice of appeal should not warrant dismissal for want of jurisdiction where the

intention to appeal from a specific judgment may be reasonably inferred from the text of the

notice and where the defect has not materially misled the appellee. Firchau v. Diamond Nat.

Corp., 345 F.2d 269 (9th Cir. 1965); Donovan v. Esso Shipping Co., 259 F.2d 65 (3rd Cir.

1958) cert. denied 359 U.S. 907 (1958).

On August 3, 1972, within the thirty days allowed for filing notice of appeal, appellants

filed with the court and served on the respondent a Statement of Points on Appeal which

clearly revealed their intention to appeal from the July 29 judgment. There has been no

showing that the respondent was materially misled by the notice.

In light of the foregoing discussion and the importance of the issues raised we decline to

dismiss the appeal on this procedural technicality.

For reasons which will become apparent we need not discuss the propriety or the

contentions of the cross-appeal.

2. Appellants contend that the lower court order entered July 6, 1971 granting summary

judgment to the respondent was error for the following reasons: (a) that the City Ordinance

Number 1880 referred to the voters by referendum was void and that its approval was a

nullity, and (b) that in any event the initiative petition as adopted is inconsistent with the

referendum measure and that the initiative petition must prevail since it passed by the larger

number of votes. We hold that neither the referred measure nor the initiative proposal were

proper subjects to be presented to the voters pursuant to the � � �� $��


initiative and referendum provisions of the Nevada Constitution.

[Headnote 3]

Initiative is that power reserved to the people to propose new laws; referendum, on the

other hand, gives them the power to veto those laws passed by their representatives. The

initiative and referendum powers granted to the citizens of this state are extremely broad, 1

and are further reserved to the registered voters of each county and each municipality as to all

local, special and municipal legislation of every kind. Nev. Const. Art. 19, Sec. 4.

3. It is apparent, however, that this plebiscite applies only to “legislation” and that

administrative acts are excepted from initiative and referendum.

In the City of Reno zoning changes are effected by city ordinance enacted by the Reno

City Council. A municipal ordinance may be either legislative or administrative. Kleiber v.

City of San Francisco, 117 P.2d 657 (Cal. 1941). The decision in Denman v. Quin, 116

S.W.2d 783, 786 (Tex.Civ.App. 1938), offers an oft-used test for drawing the distinction:

“An ordinance originating or enacting a permanent law or laying down a rule of conduct or

course of policy for the guidance of the citizens or their officers and agents is purely

legislative in character and referable, but an ordinance which simply puts into execution

previously-declared policies, or previously-enacted laws, is administrative or executive in

character, and not referable.” This legislative-administrative dichotomy is often vague, but it

is this very vagueness which has given the courts considerable leeway in balancing two

competing interests: that of protecting government from unwarranted harassment and the

equal interest in protecting benefits to be won through direct legislation. See generally

Comment, Stan.L.Rev. 497 (1951).

[Headnote 4]

We think that whether or not the citizens of a state wish to embark upon a policy of zoning

for the purpose of regulating and restricting the construction and use of buildings within fixed

areas is a legislative matter subject to referendum. But when, as in the present case, such

policy has been determined and the changing of such areas, or the granting of exceptions �� K�� F��8��=(�$�3�&=�@��=�"�>$��

____________________

1

Nev. Const. Art. 19, Sec. 2:

. . . the people reserve to themselves the power to propose, by initiative petition, statutes and amendments to

statutes and amendments to this constitution, and to enact or reject them at the polls.


has been committed to the planning commission and the city council in order to secure the

uniformity necessary to the accomplishment of the purposes of the comprehensive zoning

ordinance, such action is administrative and not referable. Cf. Kelley v. John, 75 N.W.2d 713,

716 (Neb. 1956).

4. For similar and additional reasons the residents of the City of Reno are barred from

adopting an amendment to the zoning law by initiative ballot.

When in a matter of state-wide concern the state legislature has specifically delegated

particular authority to a governing board, the courts have uniformly held that initiative

processes do not ordinarily apply. 5 McQuillan, Municipal Corporations, Sec. 16.52.

The State of Nevada has delegated comprehensive powers to cities and towns in the area

of zoning regulation. The legislative body of a city or of a county of at least 15,000 people

must, under Chapter 278, create a planning commission which in turn must adopt a long-term

plan of physical development. NRS 278.030, 278.150. Elements of the plan include

community design, conservation, economics, housing, land use, public buildings, public

services and facilities, recreation, streets and highways, transit and transportation. NRS

278.160. The commission may adopt the plan in whole or in part after prescribed notice and

public hearing and by a two-thirds vote. NRS 278.170, 278.210. The legislative body may

adopt all or any part of this plan after giving prescribed notice and holding a public hearing;

any change or addition must be referred to the commission. NRS 278.220.

Pursuant to this legislative directive the City of Reno adopted a comprehensive land use

program embodied in Title 16 of the Reno Municipal Code.

[Headnote 5]

The enactment and enforcement of zoning laws and ordinances are valid exercises of the

police power which is inherent in the state and which can be delegated to municipal

corporations. The power to zone must be found in the police power insofar as in its exercise it

imposes use restrictions on property without payment of compensation. 8 McQuillan,

Municipal Corporations, Sec. 25.34.

[Headnote 6]

The law requires that zoning ordinances observe state and federal constitutional provisions

and requirements including that of due process. State v. Hill, 59 Nev. 231, 90 P.2d 217

(1939). The governing body of a city has the power to change �� K��


land use classifications, but no such regulation may become effective until after notice and

public hearing at which interested parties and citizens shall have an opportunity to be heard.

NRS 278.260. The appellants concede that the statutory notice and hearing requirements were

not met. When a statute requires notice and hearing as to the possible effect of a zoning law

upon property rights the action becomes quasi judicial in character, and the statutory notice

and hearing then becomes necessary in order to satisfy the requirements of due process and

may not be dispensed with. Hurst v. City of Burlingame, 277 P. 308 (Cal. 1929).

Moreover, a zoning ordinance must be pursuant to, and in substantial conformity with, the

zoning or enabling act authorizing it. 8 McQuillan, Municipal Corporations, Sec. 25.58. The

legislature has delegated the power to zone to the legislative bodies of cities and towns, so

that the need for a comprehensive plan might be met, and has provided means for the

protection of private property through notice and public hearing. Thus when appellants seek

to initiate rezoning within the city without complying with the zoning statute, they are, in

effect, attacking collaterally the very statute under which they claim the power to zone.

Dewey v. Doxey-Layton Realty Co., 277 P.2d 805, 809 (Utah 1954). The state legislature,

pursuant to its inherent authority, has enacted extensive enabling legislation in the matter of

zoning regulation. Unless that general law is affected by repeal or amendment by the

legislature, or by referendum or initiative by the people of the state, the statute guides the

zoning processes of the cities and directs the means by which it is to be accomplished. Dewey

v. Doxey-Layton Co., supra, at page 809.

[Headnote 7]

5. In their supplemental complaint appellants reallege that Ordinance 1880 was

improperly passed by the Reno City Council. The trial court found that the land use change is

not inconsistent with the objectives of the comprehensive planning involving the City of

Reno, that such change would not materially affect the residential character of the land use

district and that it is not an arbitrary or unreasonable exercise of the police power. These

findings are not challenged.

Judgment in favor of the respondent is affirmed.

Mowbray, Gunderson, and Batjer, JJ., and Compton, D. J., concur.

____________

��89 Nev. 540, 540 (1973) Fletcher v. Fletcher��

LA DONNA M. FLETCHER, Appellant, v.

WILLIAM C. FLETCHER, Respondent.

No. 7073

November 30, 1973 516 P.2d 103

Appeal from an order denying motion to amend judgment, Second Judicial District Court,

County of Washoe; John F. Sexton, Judge.

Divorced wife, who was dissatisfied with judgment awarding her former husband a

divorce, filed motion to amend. The district court denied motion and wife appealed. The

Supreme Court held that there was substantial evidence to support granting of divorce to

husband and awarding him custody of minor child; that district judge made a just and

equitable disposition of the property and that, in absence of evidence to support wife's request

for award of attorney fees, trial court did not err in refusing to amend its judgment to allow

such fees.

Affirmed.

Belford & O'Mara, of Reno, for Appellant.

William J. Raggio, of Reno, for Respondent.

1. Appeal and Error. Where trial court, sitting without jury, has made determination upon basis of conflicting evidence, that

determination should not be disturbed on appeal if it is supported by substantial evidence.

2. Appeal And Error. Before Supreme Court will reverse trial court's determination made on conflicting evidence, record must

reveal that judgment was clearly erroneous and not based upon substantial evidence.

3. Divorce. Supreme Court will not interfere with a disposition of community property or determination concerning

alimony unless trial court has abused its discretion. NRS 125.150, 125.150, subd. 1.

4. Divorce. Evidence supported granting of divorce to husband and awarding custody of minor child to him.

5. Divorce. District judge is not required in divorce case to make an exactly equal division of community property.

NRS 125.150, 125.150, subd. 1.

6. Divorce. In divorce case, in which husband was awarded divorce and granted custody of minor child, trial court

did not abuse its discretion in disposing of community property, although wife contended that she should

have been awarded an automobile and entire family residence as her sole and separate property. NRS

125.150, 125.150, subd. 1.


7. Divorce. District court is authorized to allow reasonable attorney fees in action for divorce, if attorney fees are in

issue under the pleadings. NRS 125.150, 125.150, subd. 2.

8. Divorce. Wife is not required to show necessitous circumstances to support an award of attorney fees in divorce

case, but such award is neither automatic nor compulsory, and is within sound discretion of trial court.

NRS 125.150, 125.150, subd. 2.

9. Divorce. Trial court did not err in refusing to amend its judgment to allow divorced wife attorney's fees, in absence

of any evidence being introduced to support her request therefor, NRS 125.150, 125.150, subd. 2.

10. Divorce. Where divorced wife, in her motion to amend judgment entered in divorce proceeding, requested that

husband be awarded all interest in his public employee's retirement fund, wife, as to that issue was not a

party aggrieved within rule that aggrieved party may appeal. NRCP 72(a).

OPINION

Per Curiam:

A judgment was entered awarding respondent a divorce from appellant, granting him

custody of Steven Fletcher, the minor child of the parties, and distributing to the parties their

community property.

The appellant, dissatisfied with the judgment as entered, filed a motion to amend

requesting that (1) she be granted the decree of divorce instead of the respondent; (2) that she

be awarded the entire family residence as her sole and separate property; (3) the 1964 Dodge

automobile; (4) alimony at the rate of $150 per month; (5) reasonable attorney fees; and (6)

respondent be directed to pay all community debts. The trial court denied the motion to

amend and this appeal follows.

NRS 125.150 dictates that a trial court determining property rights as a concommitant part

of the divorce proceeding should make a disposition which is “just and equitable.” 1 The

appellant asserts that this mandate was circumvented by the trial court's failure to amend the

judgment.

____________________

1

NRS 125.150(1): “In granting a divorce, the court may award such alimony to the wife and shall make such

disposition of the community property of the parties as shall appear just and equitable, having regard to the

respective merits of the parties and to the condition in which they will be left by such divorce, and to the party

through whom the property was acquired, and to the burden, if any, imposed upon it, for the benefit of the

children.”


[Headnote 1]

Where a trial court, sitting without a jury, has made a determination upon the basis of

conflicting evidence, that determination should not be disturbed on appeal if it is supported

by substantial evidence. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950).

[Headnote 2]

Before we would reverse the trial court the record must reveal that the judgment was

clearly erroneous and not based upon substantial evidence. Savini Constr. Co. v. A & K

Earthmovers, 88 Nev. 5, 492 P.2d 125 (1972); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d

353 (1970).

[Headnote 3]

Moreover, we will not interfere with a disposition of community property or a

determination concerning alimony unless the trial court has abused its discretion. Shane v.

Shane, 84 Nev. 20, 435 P.2d 753 (1968).

Here, the trial judge had the opportunity to hear and perceive the witnesses. He was better

able to consider and balance the equities than are we relying solely on the cold record.

Cunningham v. Cunningham, 61 Nev. 93, 116 P.2d 188 (1941); Winn v. Winn, 86 Nev. 18,

467 P.2d 601 (1970).

[Headnote 4]

There is substantial evidence in this record to support the granting of the divorce to

respondent and awarding him custody of the minor child.

[Headnotes 5, 6]

A district judge is not required to make an exactly equal division of the community

property. Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965); Winn v. Winn, supra. Upon the

limited evidence presented to him in this case, he made a just and equitable disposition of the

property. NRS 125.150.

[Headnote 7]

A district court is authorized to allow reasonable attorney fees in an action for divorce if

attorney fees are in issue under the pleadings. Here appellant, in her counterclaim, requested

that respondent be required to pay reasonable attorney fees incurred by her. That request was

put in issue by respondent's denial in his reply to the counterclaim. NRS 125.150(2).

[Headnotes 8, 9]

Although a wife is no longer required to show necessitous circumstances to support an

award of attorney fees (Sargeant ��''�$��&&@


v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972)) such an award is neither automatic nor

compulsory, but within the sound discretion of the trial court. There was not a shred of

evidence introduced into the record to support appellant's request. There was no error in the

trial court's refusal to amend its judgment to allow appellant attorney fees.

[Headnote 10]

The appellant further argues that the trial court erred in setting over to respondent all

interest in his public employee's retirement fund. NRS 286.010 et. seq. However, appellant in

her motion to amend requested that respondent be awarded “all interest in his public

employee's retirement fund.” As to this issue the appellant is not a party aggrieved within

NRCP 72(a) (now NRAP 3A(a)).

The order of the district court denying the appellant's motion to amend the judgment is

affirmed.

____________

��89 Nev. 543, 543 (1973) Petersen v. Petersen��

CLAY A. PETERSEN, Appellant, v.

MARCELLE L. PETERSEN, Respondent.

No. 6954

November 30, 1973 516 P.2d 108

Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.

Compton, Judge.

Proceedings on former husband's appeal from that portion of judgment of the district court

ordering husband, who had been obligated to extinguish encumbrances on family dwelling

house, which had been awarded to wife on divorce, to pay wife a sum equivalent to net

principal balance due at time of foreclosure. The Supreme Court, Batjer, J., held that wife's

loss of dwelling through foreclosure when husband failed to pay encumbrances did not

constitute a sale within meaning of provision of divorce decree that husband's obligation

would terminate if wife sold or disposed of house.

Affirmed.

George Rudiak, of Las Vegas, for Appellant.

George Spizzirri, of Las Vegas, for Respondent.

1. Divorce. Where, as part of divorce decree, husband was required to pay encumbrances of record against family

dwelling, which was awarded to the wife, except that if wife sold or disposed of house ��+�� +�� ) �� 0��2�� 5�� ) � ��


husband's obligation to distinguish encumbrances would be terminated, wife's loss of house through

foreclosure when husband failed to make required payments did not constitute a “sale” within meaning of

decree; thus, it was proper for district court to enter judgment requiring husband to pay wife, as an

arrearage, net principal balance due at time of foreclosure.

2. Divorce. Judgment requiring former husband, who had been ordered to pay encumbrances on family dwelling

house, to pay former wife, who had been awarded possession of house, a sum equal to balance due on

encumbrances as of date of the foreclosure “less interest” was not too ambiguous and unintelligible to be

enforced; in any event the words “less interest” could only be interpreted to inure to husband's benefit and

on such issue he was not an aggrieved party who could appeal. NRS 125. 180, subd. 1.

OPINION


The parties were divorced on February 14, 1963 and respondent was granted custody of

the three minor children of the marriage and awarded the family dwelling house located at

4100 El Cedral, Las Vegas, Nevada. Appellant was ordered to pay to respondent $300 per

month as child support; $100 a month as alimony, and to pay the encumbrances of record

against the house. He was permitted to reduce the encumbrances of record against the house

at the rate of $167 per month.

The decree further provided that if respondent remarried, the encumbrances against the

house could be paid off at the rate of $80 per month. If, however, she sold or disposed of the

house, appellant's obligation to extinguish the encumbrances would terminate. 1 �9��*�� &@�� "(�� ) ��

____________________

1

The exact language used in the decree of divorce reads as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff be, and she is hereby

awarded the community property located at 4100 El Cedral, Las Vegas, Nevada, together with the furnishings

therein, as her sole and separate property, and the Defendant is hereby ordered to execute such instrument of

conveyance as will transfer his interest unto the Plaintiff, and provided further that the Defendant shall pay the

encumbrances of record, payable in the manner and means as reflected by said documents of record, that is, the

sum of $167.00 per month until such encumbrances of record against said property are fully satisfied and paid;

provided, however, that in the event that the Plaintiff shall remarry, then upon the occurrence of said event the

Defendant shall pay only the sum of $80.00 per month as and against said encumbrances of record, and provided

further that in the event the Plaintiff sells or disposes of said property, the Defendant's obligation to make any

payments thereon shall be terminated.”


On April 23, 1965, appellant moved for a reduction of the child support and alimony

payments, and for termination of the monthly payment required to reduce the encumbrance.

Approximately one year later on April 29, 1966, the Honorable John F. Sexton, District

Judge, entered a minute order reducing the alimony and child support payments, as well as

the monthly payment against the encumbrances, and requiring appellant to pay to respondent

the sum of $1,000 to cure accrued arrearages. 2 He was further ordered to deliver certain

interest in various family enterprises to respondent in trust for the minor children. Appellant

paid the arrearage and made the reduced child support, alimony and house payments through

February 21, 1967.

In August of 1966 respondent stopped making payments on the house, and in December of

1966 foreclosure proceedings were commenced. The trustee's sale took place on April 7,

1967, at which time she was divested of all interest in the real property located at 4100 El

Cedral, Las Vegas, Nevada.

On December 6, 1966, respondent moved to cite appellant for contempt for failure to place

his interest in various family enterprises in trust for the minor children. On December 14,

1966, appellant moved for a rehearing of the order requiring him to put his separate property

in trust and for further reduction of the child support payments and an elimination of alimony

and house payments.

A rehearing was eventually granted and heard before the Honorable William P. Compton,

District Judge, who found respondent had lost her equity in the house by foreclosure through

no fault of her own but by reason of appellant's failure to meet his obligations required by the

original decree of divorce. He further found that respondent did not “sell” or “dispose of” said

property in the manner contemplated by the original decree of divorce, and concluded that

respondent was entitled to judgment in an amount equal to the balance due on the

encumbrances as of the date of foreclosure less any interest. Judgment was entered

accordingly. This appeal is taken only from that part of the judgment awarding to respondent

“a sum equal to the remaining balance due on the encumbrance �� !�//7��-��G��$�� 2

____________________

2

The formal order resulting from the minute order reads as follows:

“1. Payment of $1,000 arrearages.

“2. Commencing May 15, 1966, the support award was modified to $225/month child support, $75/month

alimony and $72/month mortgage payments.

“3. That certain stock of the appellant be turned over to a trust for the children.”


against the property at 4100 El Cedral, Las Vegas, Nevada, as of the date of foreclosure, less

interest.”

[Headnote 1]

We find no error in that part of the judgment. Under the terms of the original divorce

decree appellant was obligated to pay the balance owed on the encumbrances of record. The

modification of April 29, 1966 did not alter this requirement but authorized appellant to

escape contempt by paying a reduced monthly payment. Even remarriage by respondent

would not have absolved appellant from paying the entire balance due on the house, but

merely permitted him to make a smaller monthly payment. If respondent had sold or disposed

of the property, then appellant would have been relieved of his obligation to pay off the

encumbrances.

The appellant argues that the real property was “disposed of” when the respondent failed

to make the periodic payments and the property was sold at a trustee's sale. Pursuant to the

provisions of the original decree of divorce it was appellant's responsibility to “pay the

encumbrances of record, payable in the manner and means as reflected by said documents of

record.” The decree of divorce placed upon him the responsibility of protecting the real

property from default. In this he failed. There is no language to be found in the original

decree of divorce which required or even authorized appellant to make the house payment to

respondent, but instead provided that payment was to be made in the manner and means

reflected by the document of record.

NRS 125.180(1) 3 specifically authorizes the district court to make an order directing the

entry of judgment for the amount of the arrearage where the husband in a divorce action

defaults in paying any sum of money required by a judgment or order. The house was lost

because of appellant's default. It was impossible for Judge Compton to require him to clear

the encumbrances. Therefore, it was proper for the district court to enter a judgment requiring

him to pay to respondent, as an arrearage, the net principal balance due at the time of

foreclosure. Cf. Reed v. Reed, 88 Nev. 329, 497 P.2d 896 (1972); Folks v. Folks, 77 Nev. 45,

359 P.2d 92 (1961).

____________________

3

NRS 125.180(1): “Where the husband, in an action for divorce, makes default in paying any sum of money

as required by the judgment or order directing the payment thereof, the district court may make an order

directing entry of judgment for the amount of such arrears, together with costs and disbursements not to exceed

$10 and a reasonable attorney's fee.”


[Headnote 2]

Finally appellant contends insofar as the judgment requires him to pay respondent a sum

equal to the balance due on the encumbrances as of the date of the foreclosure “less interest”

that it is too ambiguous and unintelligible to be enforced. We find this contention to be

completely without merit. The words “less interest” can only be interpreted to inure to

appellant's benefit. Upon this issue he is not an aggrieved party who may appeal under NRAP

3A (formerly NRCP 72(a)). Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192 (1940);

Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 476 P.2d 171 (1970).



____________

��89 Nev. 547, 547 (1973) Beggs v. Lowe��

ROBERT A. BEGGS, Appellant, v. STANLEY LOWE, Respondent.

No. 6459

December 10, 1973 516 P.2d 467

Appeal from judgment for defendant; Eighth Judicial District Court, Clark County;

Thomas J. O'Donnell, Judge.

Action to enforce written agreement by defendant to share real estate broker's commission

or, alternatively, for compensation on a quantum meruit basis. The district court denied relief,

and plaintiff appealed. The Supreme Court, Thompson, C. J., held that statute allowing real

estate administrator to issue certificate of cooperation to out-of-state licensed broker, when

read in conjunction with statute requiring broker to obtain a license before acting in state and

statute requiring allegation and proof of licensing in action for collection of compensation,

precluded access to courts of Nevada to collect compensation unless complaint alleged and

proved that plaintiff was a duly licensed Nevada broker at time his cause of action arose or

that he had been issued certificate to cooperate with Nevada broker with regard to transaction

in issue.

Affirmed.

Paul L. Larsen, of Las Vegas, for Appellant.

John G. Spann, of Las Vegas, for Respondent.

��89 Nev. 547, 548 (1973) Beggs v. Lowe��

1. Action; Brokers. There was no basis for applying California law to action by broker licensed in California to enforce

written agreement with broker licensed in Nevada to share real estate broker's commission, where

agreement was made in Nevada and concerned a leasehold in Nevada and brokers' services, in the main,

were performed in Nevada.

2. Brokers. Statute providing that licensed broker may pay commission to a licensed broker of another state might be

read to authorize voluntary payment of commission to licensed broker of another state but it did not grant

to such out-of-state licensed broker right to resort to courts of Nevada to collect money allegedly owing

him. NRS 645.230, 645.270, 645.280, 645.605.

3. Brokers. Statute allowing real estate administrator to issue certificate of cooperation to out-of-state licensed

broker, when read in conjunction with statute requiring broker to obtain a license before acting in state and

statute requiring allegation and proof of licensing in action for collection of compensation, precluded

access to courts of Nevada to collect compensation unless complaint alleged and proved that plaintiff was a

duly licensed Nevada broker at time his cause of action arose or that he had been issued certificate to

cooperate with Nevada broker with regard to transaction in issue. NRS 645.230, 645.270, 645.280,

645.605.

4. Brokers. Even if quantum meruit recovery could be allowed to out-of-state broker who had failed to procure

certificate of cooperation, there could be no such recovery in absence of allegation and proof of deceit and

fraud. NRS 645.230, 645.270.

5. Brokers. Where Nevada broker had advised California broker that he would need to obtain certificate of

cooperation, it could not be reasonably asserted, as a ground for recovery on quantum meruit basis, that

California broker had reason to believe that he would be paid without obtaining such certificate. NRS

645.230, 645.270.

OPINION


By this action the plaintiff seeks to enforce a written agreement with the defendant by

which they were equally to share a real estate broker's commission or, alternatively, to be

compensated by the defendant on a quantum meruit basis. The district court denied any relief

to the plaintiff and he has appealed.

[Headnote 1]

The plaintiff, Robert Beggs, is a real estate broker licensed as such by the State of

California. He is not licensed to act in �� $�� K �� -�� $��

��89 Nev. 547, 549 (1973) Beggs v. Lowe��

that capacity in the State of Nevada, nor did he secure a certificate of cooperation authorizing

him to cooperate with the defendant, Stanley Lowe, a licensed Nevada broker, with regard to

the transaction in issue. The record may be read to show that before Beggs rendered services,

Lowe told Beggs he believed such a certificate was necessary, but that Beggs failed to secure

the same. Services were rendered by each of them and a broker's commission was paid to

Lowe who thereafter refused to share it with Beggs as required by their agreement. 1 This

litigation ensued.

1. One may not act as a real estate broker in this State without first obtaining a license,

NRS 645.230, nor may he commence any action in the courts of this State for the collection

of compensation without alleging and proving that he was a duly licensed broker at the time

his cause of action arose, NRS 645.270; Whiddett v. Mack, 50 Nev. 289, 297, 258 P. 233

(1927); dictum, Davis v. Jouganatos, 81 Nev. 333, 338, 402 P.2d 985 (1965); dictum,

Islandia, Inc. v. Marechek, 82 Nev. 424, 427, 420 P.2d 5 (1966). The statutory commands aid

the supervision and control of brokers and salesmen to the benefit of the public welfare.

Notwithstanding the cited statutes and cases, it is the appellant's contention that NRS

645.280 authorizes the payment of compensation to him. That statute provides that it is

unlawful for a licensed broker to pay a part of his commission to any person who is not

licensed, but that he may pay a commission to a licensed broker of another state.

[Headnotes 2, 3]

Although NRS 645.280 may be read to authorize the voluntary payment of a commission

to a licensed broker of another state, it does not grant to such out-of-state licensed broker the

right to resort to the courts of Nevada to collect money allegedly owing him. NRS 645.605

allows the real estate administrator to issue a certificate of cooperation to an out-of-state

licensed broker. That statute when read in conjunction with NRS 645.230 and NRS 645.270

heretofore mentioned, precludes access to the courts of Nevada to collect compensation

unless the complainant alleges and proves that he was a duly licensed Nevada broker at the

time his cause of action arose, or that he had been issued a certificate or cooperation �� $��

____________________

1

The agreement was made in Nevada, concerned a leasehold in Nevada, and the brokers' services, in the

main, were performed here. Although the appellant suggests that California law should apply, we perceive no

basis for doing so. Cf. Davis v. Jouganatos, 81 Nev. 333, 339, 402 P.2d 985 (1965).

��89 Nev. 547, 550 (1973) Beggs v. Lowe��

to cooperate with a Nevada broker with regard to the transaction in issue. Since Robert

Beggs, the plaintiff-appellant, is unable to satisfy either pre-condition to suit, he may not

enforce his commission sharing agreement in the courts of this State.

[Headnotes 4, 5]

2. We need not decide whether a quantum meruit recovery ever may be allowed to an

out-of-state broker who has failed to secure a certificate of cooperation. Cf. Bangle v. Holland

Realty Inv. Co., 80 Nev. 331, 336, 393 P.2d 138 (1964). Preclusive statutes similar to NRS

645.230 and 645.270 have been held not to bar quantum meruit relief to an out-of-state

contractor if deceit and fraud is alleged and established. Magill v. Lewis, 74 Nev. 381, 333

P.2d 717 (1958). Such allegation and proof is absent in the case before us. Indeed, since

Lowe advised Beggs that he would need to obtain a certificate of cooperation it cannot

reasonably be asserted that Beggs had reason to believe that he would be paid without

obtaining such certificate.

Affirmed.


____________

��89 Nev. 550, 550 (1973) Lellis v. Archie��

ADELINE LELLIS, Appellant, v. ROBERT ARCHIE, Executive Director, Nevada

Department of Employment, BOARD OF REVIEW, Nevada Department of Employment

Security, STATE OF NEVADA DEPARTMENT OF EMPLOYMENT SECURITY,

THE GIBBENS CO., INC., and the DESERT INN HOTEL, Respondents.

No. 7192

December 10, 1973 516 P.2d 469

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Carl J.

Christensen, Judge.

Proceeding for unemployment compensation. From a judgment of the district court the

petitioner appealed. The Supreme Court, Batjer, J., held that the assertion by change girl in

casino of objection to station change did not constitute “misconduct” so as to disqualify her

from obtaining unemployment �� 0� ��2


compensation benefits upon discharge for such alleged “misconduct.”

Reversed.

B. Mahlon Brown, III, Clark County Legal Service, for Appellant.

Peter I. Breen, Hibbs & Bullis, and Stanley L. Lyon, of Reno, for Gibbens Co.

Morse, Foley & Wadsworth, and Roland S. Ericsson, of Las Vegas, for Desert Inn Hotel.

1. Social Security and Public Welfare. “Misconduct,” such as will disqualify employee from receiving unemployment compensation benefits,

consists of deliberate violation or disregard of standards of behavior which employer has right to expect or

carelessness or negligence of such degree as to show substantial disregard of employer's interest or

employee's duties and obligations to employer.

2. Administrative Law and Procedure. In reviewing an administrative board's decision the Supreme Court, like the district court, is limited to

record presented below and to determination of whether the board acted arbitrarily or capriciously.

3. Administrative Law and Procedure. In reviewing administrative board's decision the Supreme Court will not pass upon credibility of

witnesses or weigh the evidence, but will limit review to a determination that the board's decision is based

upon substantial evidence.

4. Social Security and Public Welfare. The decision of Unemployment Compensation Board of Review that casino change girl's objection to

change of station in casino from more desirable to least desirable station amounted to “misconduct

connected with her work” so as to disqualify her from receiving unemployment compensation benefits

upon discharge for such “misconduct” was not supported by substantial evidence in record which showed

that objection to change of stations lacked any element of wrongfulness. NRS 612.385,

612.490-612.500.

OPINION


Appellant Adeline L. Lellis was employed as a change girl by the respondent, Desert Inn

Hotel, from September 4, 1970 until June 20, 1971. During her employment the appellant

was ��


a part of a rotation policy which allowed change girls to alternate between the least desirable

stations on the casino floor and the most desirable stations. The rotation was such that upon

returning from their scheduled day off the girls would begin working the least desirable

station and move progressively toward the most desirable station with the passing of each

shift. In the record made at the hearing before the appeals tribunal, it is undisputed that this

rotation policy was the result of a management-labor plan.

On the night of appellant's termination she had begun her shift at one of the more desirable

stations. She left this station for a relief break and upon her return the floorman arbitrarily

directed her, without any apparent valid reason, to take the least desirable station. The

appellant objected to being removed from her station and was thereupon told by the floorman

that she could either go to the station as he had directed or quit. Appellant continued her

objection and was then assigned to another station where she worked for the remainder of that

shift. The appellant's refusal to be rotated to the least desirable station was reported to the

shift boss by the floorman, and at the end of that shift appellant's employment was terminated

by the shift boss.

On July 21, 1971, appellant filed a claim for benefits with the Nevada Unemployment

Compensation Service. On August 12, 1971, that service determined appellant was

disqualified for misconduct connected with her work from receiving benefits under NRS

612.385. On August 16, 1971, appellant filed notice of appeal from the service's

determination with the appeals tribunal. NRS 612.490, 612.495. A hearing was held before

the appeals tribunal (NRS 612.500) and it entered its determination along with findings of

fact, reversing the Unemployment Compensation Service decision and allowing benefits to

appellant.

On September 13, 1971, respondents, Desert Inn Hotel and the Gibbens Company, Inc.,

requested pursuant to NRS 612.515, for review of the appeals tribunal decision. On

December 1, 1971 the board of review entered its decision reversing the appeals tribunal's

determination and disqualifying the appellant for benefits for eleven weeks commencing June

20, 1971. Appellant filed a petition for review and appeal in the district court. On June 6,

1972, a hearing was held, pursuant to NRS 612.530, on appellant's petition and on July 17,

1972 an order was entered dismissing appellant's petition on the finding that there was

substantial evidence to support the board of review's decision. This appeal followed.


Here we are faced with the determination of whether the assertion by Mrs. Lellis of her

objection to the station change was misconduct within the meaning of NRS 612.385. 1

[Headnote 1]

In Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219 (1968), this court quoted with

approval from Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941), and determined

misconduct to be: “. . . [A] deliberate violation or disregard on the part of the employee of

standards of behavior which his employer has the right to expect. Carelessness or negligence

on the part of the employee of such a degree as to show a substantial disregard of the

employer's interests or the employee's duties and obligations to his employer are also

considered misconduct connected with the work.”

The remonstrance voiced by Mrs. Lellis was not the type of behavior denoted in the

definition of Boynton Cab Co. v. Neubeck, supra, where that court in dealing with the term

“misconduct” said: “It is true that under the common, approved usage of the word

‘misconduct,' several meanings are equally within the scope thereof. That is evidenced by

such definitions of the word as the following: ‘Bad behavior, improper conduct,

mismanagement; wrong behavior, wrong conduct; any improper or wrong conduct; in usual

parlance, a transgression of some established and definite rule of action, where no discretion

is left, except what necessity may demand. . . .'” 296 N.W. at 639.

The objection to the change of stations by Lellis lacks any element of wrongfulness. When

Lellis returned from her dinner break she had a right to expect that she would take her same

place in the rotation pursuant to the management-labor plan. When she was informed of her

change to the least desirable station she took exception and then compromised her exception

by taking a station which was not as desirable as her prebreak station, but not the least

desirable station.

[Headnotes 2, 3]

In Barnum v. Williams, supra, it was determined that in reviewing in an administrative

board's decision this court, like the district court, is limited to the record presented below and��

____________________

1

NRS 612.385: “An individual shall be disqualified for benefits for the week in which he has been

discharged by his most recent employing unit for misconduct connected with his work, if so found by the

executive director, and for not more than 15 consecutive weeks thereafter occurring within the current benefit

year, or within the current and following benefit year, as determined by the executive director in each case

according to the seriousness of the misconduct.”


to the determination of whether the board acted arbitrarily or capriciously. See also Miller v.

West, 88 Nev. 105, 493 P.2d 1332 (1972). In No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev.

278, 429 P.2d 66 (1967), we determined that: “We should not pass upon the credibility of

witnesses or weigh the evidence, but limit review to a determination that the board's decision

is based upon substantial evidence.” 83 Nev. at 281.

Pursuant to NRS 612.515(3) the board of review may “. . . affirm, modify or reverse the

findings or conclusions of the appeal tribunal solely on the basis of evidence previously

submitted, or upon the basis of such additional evidence as it may direct to be taken.”

(Emphasis added.) The record does not indicate that the board of review directed that any

new evidence be taken. Therefore, the board of review and this court are now bound by the

evidence recorded by the appeals tribunal.

[Headnote 4]

The decision by the board of review that appellant's objection to the change of station

amounted to “misconduct connected with her work” finds no basis in substantial evidence in

the record. We find nothing that should preclude appellant from compensation under NRS

612.385. The order of the district court is reversed with instructions to reinstate the decision

of the appeals tribunal.


____________

��89 Nev. 554, 554 (1973) Turney v. Sullivan��

CHRISTOPHER TURNEY, Appellant, v. EMMETT

SULLIVAN and MARGARET SULLIVAN, Respondents.

No. 7182

December 14, 1973 516 P.2d 738

Appeal from an order granting defendant's motion for summary judgment, Eighth Judicial


Action against automobile owners to recover for injuries sustained when automobile

lurched forward and pinned plaintiff between automobile and tire changing stand. The district

court granted defendants' motion for summary judgment, and plaintiff appealed. The Supreme

Court held that automobile owners had no duty to warn plaintiff that repairs he attempted�� +��


were a peril to his safety and were not liable for plaintiff's injuries.

Affirmed.

John Marshall, of Las Vegas, for Appellant.

Cromer & Barker, and Kent W. Michaelson, of Las Vegas, for Respondents.

1. Negligence. Without a duty owed, there can be no actionable negligence.

2. Automobiles. Automobile owners who sought to have automobile repaired had no duty to warn plaintiff who assisted

regular mechanic in repairing automobile that repairs he attempted were a peril to his safety and were not

liable for plaintiffs injuries sustained when he, while standing directly in front of automobile, started engine

by short circuiting electric current to the starting mechanism and automobile which was in gear lurched

forward and pinned plaintiff between automobile and tire changing stand.

OPINION

Per Curiam:

On November 12, 1970, respondents Emmett and Margaret Sullivan experienced

mechanical difficulties with their 1969 Mercury Cougar automobile, and upon their arrival in

Goldfield, Nevada they sought repairs at “Slim's Place.”

The regular mechanic on duty informed the Sullivans that he would attempt repairs and

sometime later the appellant went to assist. The regular mechanic was in the rear of the

building and only the appellant was in the immediate vicinity of the vehicle. While standing

directly in front of the automobile he started the engine by short circuiting the electric current

to the starting mechanism. The car being in gear, lurched forward breaking his leg, by pinning

him between the car and a tire changing stand.

Appellant filed suit alleging that respondents were negligent in failing to warn him that the

repairs he was attempting were “a peril to his safety.” Respondents moved for summary

judgment, which was granted by the trial court, and this appeal followed.

[Headnotes 1, 2]

We believe that the district court on the record before it properly determined that there was

no genuine issue as to whether respondents had breached a duty owed to appellant. Without a

duty owed there can be no actionable negligence.


The motion for summary judgment was properly granted. NRCP 56(c); Central Stikstof

Verkoopkanter, N.V. v. Pensacola Port Authority 316 F.2d 189 (Fla.App. 1963); Cf. Rainer v.

Grossman, 107 Cal.Rptr. 469 (Cal.App. 1973).

Affirmed.

____________

��89 Nev. 556, 556 (1973) McKinney v. State��

MARY SIMMS McKINNEY, Appellant, v. THE STATE


No. 7000

December 19, 1973 516 P.2d 1404


Clark County; Clarence Sundean, Judge.

Defendant was convicted in district court of second-degree murder and she appealed. The

Supreme Court held that refusal to give defendant's requested instruction that if evidence

supports theories of guilt and innocence the jury should adopt theory consistent with

innocence was not error where trial court gave instructions designed to cover all elements of

murder and degrees thereof and included instructions on reasonable doubt and self-defense.

Affirmed.

Morgan D. Harris, Public Defender, and Brian L. Greenspun and Philip M. Pro, Deputy

Public Defenders, Clark County, for Appellant.



Criminal Law.

Refusal to give defendant's requested instructions that if evidence supported theories of both guilt and

innocence the jury should adopt that theory consistent with innocence was not error where trial court gave

instructions designed to cover all elements of murder and the degrees thereof and included instructions on

reasonable doubt and self-defense.

OPINION

Per Curiam:

Appellant was charged with and convicted of second-degree murder. Appellant urged

self-defense at the trial. The sole �� +�� B

��89 Nev. 556, 557 (1973) McKinney v. State��

assignment of error on this appeal is whether the trial court erred in its refusal to give

appellant's following proposed instruction on two reasonable theories:

“If upon a fair and impartial consideration of all the evidence in the case, the jury finds

that there are two reasonable theories supported by the testimony in the case, and that one of

such theories is consistent with the theory that the defendant is innocent of charges contained

in the Information and that the other is consistent with the guilt of the defendant, then it is the

law, and the law makes it the duty of the jury to adopt that theory which is consistent with the

innocence of the defendant, in finding the defendant not guilty.”

As recently as Kovack v. State, 89 Nev. 364, 513 P.2d 1225 (1973), this court held that it

was not error to refuse such an instruction where there was direct evidence at the trial and

where the other instructions given to the jury, including those on reasonable doubt, were

adequate.

The trial court gave instructions designed to cover all elements of murder and the degrees

thereof. Included were instructions on reasonable doubt and self-defense.

As the trial court indicated, the “two theory” proposition was amply covered by the other

instructions. Further, the evidence adduced at trial was direct evidence. Hence, we find no

error in the refusal of the lower court to give appellant's requested instruction. Accordingly,

we affirm the decision of the lower court. Scott v. State, 72 Nev. 89, 295 P.2d 391 (1956);

Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970); Kovack v. State, supra.

____________

��89 Nev. 558, 558 (1973) Bissell v. College Development Co.��

MELVILLE R. BISSELL, Jr., aka MELVILLE BISSELL and MELVILLE R. BISSELL;

HARVEY S. BISSELL, SABRA McCAY CLARK; DOROTHY McCAY SCULLY, JOHN

D. BISSELL, CLARA O. BISSELL, MELVILLE BISSELL, III; WADSWORTH BISSELL,

CHARLES BISSELL and CARL L. REED, Special Administrator of the Estate of MARY

CATHERINE HARVEY, aka MAY C. HARVEY, Appellants, v. COLLEGE

DEVELOPMENT CO., a Nevada Corporation; and ROBERT J. LEWIS, Trustee, a Joint

Venture; SUNRISE MOUNTAIN DEVELOPMENT COMPANY, a Nevada Corporation,

and ROBERT J. LEWIS, Individually; KANSAS CITY TITLE INSURANCE COMPANY,

MICHAEL M. CERMAK, JOHN E. KELLY, NORVEG DEVELOPMENT

CORPORATION, a Nevada Corporation; and CHICAGO TITLE INSURANCE COMPANY,

Respondents.

No. 7276

December 19, 1973 517 P.2d 185

Appeal from summary judgment of the Eighth Judicial District Court, Clark County;

Leonard I. Gang, Judge.

Action to recover damages for conspiracy to fraudulently conceal the fact that deed to

realty from plaintiffs' ancestor was a forgery thereby preventing plaintiffs from taking action

to quiet title in themselves before limitations period had run in favor of defendant and to quit

title to the property in the plaintiffs. From a summary judgment of district court the plaintiffs

appealed. The Supreme Court, Zenoff, J., held that a judgment on the merits by a proper court

will operate to bar every matter offered and received to sustain or defeat the claim in every

other matter which might with propriety have been litigated and determined in that action in

subsequent litigation between the parties or their privies involving identical causes of action,

and that the holding that on failure of landowner to redeem land from tax sale within statutory

two-year period or to compel reconveyance from county within statutory three-year period,

any possessory rights of landowner were terminated and heirs were barred by five-year statute

of limitations from asserting any claim was res judicata of plaintiffs' rights, precluding

maintenance of their action.

Affirmed.

[Rehearing denied January 14, 1974] ,��A��-��G��*��


Foley Brothers, of Las Vegas, for Appellants.

Beckley, DeLanoy & Jemison, Chartered, and George Rudiak, Chartered, of Las Vegas,

for Respondents.

1. Judgment. A judgment on the merits by a proper court will operate to bar every matter offered and received to

sustain or defeat the claim and every other matter which might with propriety have been litigated and

determined in that action in subsequent litigation between the parties or their privies involving identical

causes of action.

2. Judgment. The test of a cause of action for res judicata purposes is the identity of facts essential to maintain the two

suits; if the facts show only one right of the plaintiff and one wrong by the defendant involving that right

there is only one cause of action.

3. Judgment. The Supreme Court's decision that on failure of landowner to redeem land from tax sale within statutory

period or to compel the conveyance from county within statutory three-year period, any possessory rights

of landowner were terminated, and landowner's heirs were barred by five-year statute of limitations from

asserting any claim in quiet title action 17 years after death of such owner was res judicata of heirs' rights,

precluding their action for alleged conspiracy in fraudulently concealing the fact that the deed to realty was

a forgery thereby preventing the heirs from taking action to quiet title in themselves before limitations

period had run.

OPINION


This appeal must be considered with Bissell v. College Development Co., 86 Nev. 404,

469 P.2d 705 (1970), and Clark County v. Lewis, 88 Nev. 354, 498 P.2d 363 (1972), as well

as County of Clark v. Roosevelt Title Ins., 80 Nev. 530, 396 P.2d 844 (1964). Taken together

they reflect a long history of combat over title to 160 acres of realty in Clark County.

Originally of very little value, the property is now typical of the higher values prevailing in

that area.

The adversaries are the heirs of Mary Catherine Harvey, appellants, and the present title

owner, Robert J. Lewis, who holds one half with College Development Co., and the other

half with Sunrise Mountain Development Co., respondents.

When Mary Harvey died in 1950 she willed her estate to the present appellants. The estate

had no assets. Six years prior to ��#��


her death she had lost her property to Clark County for nonpayment of property taxes. The

default had occurred in 1938 and she failed to redeem within 5 years. NCL 6447 (cf. NRS

361.570); NCL 6449, 8042 (cf. NRS 361.585); Pender v. Clark County, 71 Nev. 47, 279 P.2d

659 (1955); Bissell v. College Development Co., supra. In 1960, 16 years after Mary Harvey's

redemption period expired, a quitclaim deed to the property signed by her and dated

November 26, 1938 conveying the property to John L. Bissell appeared on the scene.

Ultimately it was learned that her signature was forged and that there was no John L. Bissell.

However, on July 12, 1960 that deed was presented to the treasurer of Clark County who

upon payment of the taxes and other accrued charges issued a tax deed to Bissell. 1 The tax

deed from the treasurer to Bissell was dated August 5, 1960. At that time the heirs of Mary

Harvey had no knowledge of these transactions.

Several transfers took place of record in the chain of title. The respondents came into

ownership and possession in good faith and without knowledge of the early falsification.

When information did reach them of the possible deficiency of the title they initiated a quiet

title action which culminated in Bissell v. College Development Co., supra. Foreclosed from

that action the Harvey heirs brought this current litigation alleging that the respondents

conspired to withhold information of the possible forgery from the heirs. Specifically, the

appellants' amended complaint sought damages for a conspiracy to fraudulently conceal the

fact that the deed to the real property from Mary Harvey to John L. Bissell was a forgery

thereby preventing the heirs from taking action to quiet title in themselves before the

limitations period had run in favor of respondents. Their supplemental complaint seeks to

quiet title to the property in the heirs on the ground that they are entitled to the benefits of the

redemption and reconveyance obtained by the alleged forger. The several issues presented in

this appeal resolve into one, namely whether res judicata bars any further litigation over the

title to the property. Our ruling is that res judicata applies and therefore it becomes

unnecessary to discuss other raised issues.

1. In Bissell v. College Development Co., supra, we settled the rights of the heirs when

we ruled that Mary Harvey had no remaining interest in this property because her rights

terminated several years before her death. Her heirs could take no more than she could

convey by will. Since fraud is “an ��

____________________

1

For a more detailed statement of the intricate facts surrounding this case see Bissell v. College Development

Co., supra.


intentional perversion of truth for the purpose of inducing another appellants may not

maintain an action based on this tort allegation. In light of our decision in Bissell v. College

Development Co., supra, appellants could not part with anything of value or surrender a legal

right in this property. See Rector v. Paterson Extension Ry. Co., 49 A. 1030, 1032 (N.J. Ct.

Err. & App. 1901), citing 1 Enc. Law & Proc. p. 677.

[Headnotes 1, 2]

2. A judgment on the merits by a proper court will operate to bar every matter offered and

received to sustain or defeat the claim and every other matter which might with propriety

have been litigated and determined in that action in subsequent litigation between the parties

or their privies involving identical causes of action. The test of a cause of action for res

judicata purposes is the identity of facts essential to maintain the two suits; if the facts show

only one right of the plaintiff and one wrong by the defendant involving that right there is

only one cause of action. Tomiyasu v. Golden, 81 Nev. 140, 400 P.2d 415 (1965).

[Headnote 3]

The one right that is the subject of the action here is the interest in the disputed property.

All of the claims alleged by the heirs derive from a claimed interest in that property. Tagging

the facts with the label of conspiracy does not alter the thrust of the lawsuit. Fitzharris v.

Phillips, 74 Nev. 371, 333 P.2d 721 (1958).

Affirmed.


____________

��89 Nev. 561, 561 (1973) Miller v. State��

JAMES L. MILLER, Appellant, v. THE


No. 7067

December 20, 1973 517 P.2d 182

Appeal from judgment; Eighth Judicial District Court, Clark County; Howard W.

Babcock, Judge.

Prosecution for sale of heroin. The district court denied defendant's motion to withdraw

plea of guilty after imposition of sentence and defendant appealed. The Supreme Court,4��8��


Thompson, C. J., held that record disclosed no abuse of discretion in ruling that defendant

failed to sustain burden of proving that he was under the influence of heroin when he pleaded

guilty.

Affirmed.

Raymond E. Sutton, of Las Vegas, for Appellant.



1. Constitutional Law. A conviction of an accused while legally incompetent violates due process and must be set aside.

2. Criminal Law. To render guilty plea invalid, the influence of narcotics must be such as to affect defendant's competency

to stand trial or his capacity to understand the nature and consequence of the plea.

3. Criminal Law. Defendant seeking to withdraw guilty plea on ground that defendant was under the influence of narcotics

when plea was entered has burden of persuading trial court by preponderance of the evidence that he was

so influenced.

4. Criminal Law. Record on appeal from denial of motion to withdraw guilty plea disclosed no abuse of discretion in ruling

that the defendant failed to sustain burden of proving that he was under the influence of heroin when he

pleaded guilty. NRS 176.165.

OPINION


This appeal is from a final judgment of the district court denying the motion of James L.

Miller to withdraw his plea of guilty to a charge of the sale of heroin. His motion to withdraw

such plea was made after the imposition of sentence to correct a manifest injustice. 1 It is his

contention that he was under the influence of heroin when he pleaded guilty. After an��

____________________

1

NRS 176.165. “. . . a motion to withdraw a plea of guilty or of nolo contendere may be made only before

sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”


evidentiary hearing the district court found that his plea was entered voluntarily, knowingly

and intelligently even though he was to some degree under the influence of heroin. He was

represented by counsel when he pleaded guilty.

[Headnotes 1-4]

A conviction of an accused while legally incompetent violates due process and must be set

aside. Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966). It does not inevitably follow,

however, that a guilty plea by one under the influence of narcotics is per se invalid. The

influence of narcotics must be such as to affect his competency to stand trial or his capacity to

understand the nature and consequences of his plea. Grennett v. United States, 403 F.2d 928

(Ct.App.D.C.Cir. 1968); Holmes v. United States, 323 F.2d 430 (7th Cir. 1963); United

States ex rel. Fitzgerald v. LaVallee, 461 F.2d 601 (2nd Cir. 1972). It is his obligation to

persuade the trial court by a preponderance of the evidence that he was so influenced.

Grennett v. United States, supra. The record in this case does not allow us to rule that the

court below abused its discretion in ruling that Miller failed to sustain his burden of proof. Cf.

State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). Although it is undisputed that he

was, to some degree, under the influence of heroin when he pleaded guilty, it also is apparent

that the court could find that he fully understood the nature and consequences of his plea.

Affirmed.


____________

��89 Nev. 563, 563 (1973) Anglin v. Warden��

MORRIS EDWIN ANGLIN, Jr. Appellant, v. WARDEN,


No. 7075

December 20, 1973 516 P.2d 740

Appeal from denial of post-conviction relief; Second Judicial District Court, Washoe

County; Grant L. Bowen, Judge.

Affirmed.


��89 Nev. 563, 564 (1973) Anglin v. Warden��

Robert E. Rose, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy District

Attorney, Washoe County, for Respondent.

OPINION

Per Curiam:

The district court denied a post-conviction application to modify a criminal sentence since

the petitioner failed to satisfy any of the preconditions designated by NRS 177.315(1). 1

Affirmed.

____________________

1

NRS 177.315(1). “Any person convicted of a crime and under sentence of death or imprisonment who

claims that the conviction was obtained, or that the sentence was imposed, in violation of the Constitution of the

United States or the constitution or laws of this state, or that the court was without jurisdiction to impose the

sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is

otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common

law, statutory or other writ, motion, petition, proceeding or remedy, may, without paying a filing fee, apply for

post-conviction relief from the conviction or sentence.” This statute has since been amended.

____________

��89 Nev. 564, 564 (1973) A Minor v. State��

....................., A Minor Boy 1 Under the age of 18 Years of age, Appellant, v. STATE OF

NEVADA, Respondent.

No.7116

December 20, 1973 517 P.2d 183

Appeal from order of juvenile commitment of the Seventh Judicial District Court, White

Pine County; Roscoe H. Wilkes, Judge.

The Supreme Court, Zenoff, J., held that officers had violated requirement of fairness by

police in dealing with youth; thus charge with regard to minor's destruction of county

property which was due to frustration because of such unfairness would not be recognized.

Remanded.

Charles E. Springer, of Reno, for Appellant.

Robert List, Attorney General, Carson City; Merlyn H.

____________________

1

It is the practice of this court to omit the minor's proper name.


Hoyt, District Attorney, and Rupert C. Schneider, Deputy District Attorney, White Pine


1. Constitutional Law; Searches and Seizures. While officers have right to take into custody a juvenile found violating the law, juvenile is entitled to

same Fourth and Fourteenth Amendment protection afforded to adults. U.S.C.A.Const. Amends. 4, 14.

2. Infants. Officers, in failing to notify mother of minor, who was arrested for drinking beer and who was carrying

identification, that minor had been taken into custody, in taking minor to jail rather than to juvenile

detention facility, in failing to permit him to call attorney until after minor was booked and in forcing a hair

shearing on him before he had been booked, had violated the requirement of fairness by police in dealing

with a youth; thus charge with regard to minor's destruction of county property which was due to frustration

because of such unfairness would not be recognized. U.S.C.A.Const. Amend. 14; NRS 62.170.

OPINION

By the Court, Zenoff, J:

Alfred was arrested at the White Pine County Race Track on August 19, 1972. 2 The

incident began when one of the arresting officers, Robert Piccinini, deputy sheriff of White

Pine County, observed Alfred standing by a beer truck at the race track holding a can of beer.

As Piccinini started toward him Alfred ran in the other direction and encountered Sheriff

Robison who ordered him to stop. The boy did so, turned around and finished the beer while

facing the sheriff. The sheriff and Piccinini each took him by an arm and told the boy he was

going to jail. He submitted peacefully until a crowd of his peers gathered and taunted him and

the officers. A struggle then ensued. Alfred was handcuffed and taken to the sheriff's office.

The sheriff initially intended to take the boy home and release him, but one of the officers

prevailed upon him to take the boy to the sheriff's office. Alfred was informed of his

constitutional rights when he was placed in the sheriff's car. When the arresting officers

arrived at the sheriff's office they were met by Officer Romero who recognized Alfred and

identified him.

____________________

2

The following is an attempt to reconstruct what actually happened on that day. Despite Officer Piccinini's

admission that the officers involved in the case all got together on their report there were numerous

discrepancies in their testimony at the hearing.


Before Alfred was booked he was turned over to Officer Romero for a haircut. The boy

was taken to a barber shop where he refused to submit to the scissors. He was then taken back

to the sheriff's office where Sheriff Robison was recalled from the race track. The sheriff

returned in the company of Officer Piccinini and the two men held Alfred down and

administered a haircut over the boy's protests. Officer Piccinini testified that all persons

booked into the county jail are to get haircuts if they are needed. The officers determined the

need. The boy's hair in this instance was shoulder length.

During the entire time that Alfred was in custody no attempt was made to contact his

mother or other members of the family or the probation officer or the juvenile detention

facility. Alfred was carrying identification but it was not requested until he was booked.

Following booking Alfred was placed in the upper part of the jail where he destroyed

various furnishings. He was then transferred to the adult section of the jail. The boy's mother

learned that her son was in jail through her daughter who had been so informed by a friend.

The mother went to the jail at 20 minutes to 7. She does not say whether this occurred the

same evening or the following morning. The sheriff initially refused her permission to see her

son. Thereafter, the boy was released to her custody. Officer Piccinini testified that when they

brought the boy out his mouth and hands were shaking very badly and that he was taken to

the hospital.

On appeal, our function is to insure that the rights of the juvenile were observed in all of

the proceedings of the arrest, custody, trial and disposition. The sheriff and his department

were honorably motivated to restrain the sale and consumption of liquor by juveniles at the

Ely race track festivities. They were alert to step in quickly before the use of liquor by

children got out of control.

When Alfred was first spotted with the can of beer and then guzzled it in their presence the

officers' reaction to apprehend him and take him home was good judgment. Evidently the

jeering and taunting of the gathered juveniles sparked Alfred's violent resistance and the force

employed by the officers to reduce him to custody became necessary.

From that point, however, failure to notify his mother or his uncle or to take him to the

juvenile facilities separate from the adult place of detention was not justified. Forcing a hair

shearing upon him was unnecessary and unwise. The hair was not unclean and Alfred was not

an adult prisoner nor had he even been booked. To youngsters hair style is important. It is not4��-��


The Scarlet Letter. The wearing of long hair is not a crime. This apparent reaction to the boy's

conduct could do little to enhance his respect for law and order, probably otherwise.

He was charged at trial with being under the influence of intoxicating liquor, destroying

county property and resisting arrest. He admitted at trial the destruction of a light bulb and

other items of equal value in anger at the county jail, that he purchased the beer at the race

track and that he resisted arrest. No defense is made to the boy's conduct. Counsel appears to

present to this court these facts and proclaims that treating a young person in this manner was

grossly unfair.

[Headnotes 1, 2]

While the officers had the right to take into custody a juvenile found violating the law, the

juvenile is entitled to the same Fourth and Fourteenth Amendment protection afforded to

adults (see In re Gault, 387 U.S. 1 (1966); cf. Marschall v. City of Carson, 86 Nev. 107, 464

P.2d 494 (1970); In re Moten, 242 So.2d 849 (La.App. 1970); State v. Eastmond, 499 P.2d

276 (Utah 1972); In re Harvey, 295 A.2d 93 (Pa. 1972); see also, Juvenile Comprehensive

Plan, prepared for the Nevada Commission on Crime, Delinquency and Corrections 41 (June

1973)). Furthermore, the provisions of NRS 62.170 require that a police officer immediately

notify the parent, guardian or custodian of the child taken into custody. Alfred was without

his mother or anyone else to act on his behalf for a period of 3 hours to possibly 12 hours. He

was not taken to the juvenile detention facility as he should have been nor was he permitted

to call an attorney until after he was booked and the harm had been done. The requirement of

fairness by police in dealing with a youth cannot be accomplished in this manner. The

enlargement of discretionary police power in derogation of statutory rights entails the danger

of inconsistent law enforcement and the resultant evils of disrespect and distrust of legal

institutions. See The Beginning of Juvenile Justice, Police Practices, and the Juvenile

Offender, 22 Vanderbilt L.Rev. 567, 581 (1969), citing President's Comm'n on Law

Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and

Youth Crime 10 (1967); Due Process as a Gateway to Rehabilitation in the Juvenile Justice

System, 49 Bos.U.L.Rev. 62, 65 (1969); see also, In re Gault, supra, at 26.

Alfred is now over 18 years of age. His juvenile record would indicate that had his rights

been observed the disposition by the trial court would have been warranted. Now because he ��'��$��4�� 7��


is past 18 years of age, he cannot be ordered to the Nevada Training School at Elko.

Had the statutory requirements of notification of his mother been observed or an attorney

called, the forced haircut would probably not have occurred. Without it the destruction of

property brought on by the boy's frustration might not have resulted. We do not know what

effect that conduct had upon the trial court's decision to confine the boy at Elko. We decline

to recognize the charge of destruction of county property because it flowed from the failure to

observe the requirements of law when Alfred was taken into custody as a juvenile.

Since the boy is now over 18 years of age and different disposition must be made, we

remand to the trial court for the purpose of appropriate disposition.

Remanded.

Thompson, C. J., and Mowbray, Gunderson and Batjer, JJ., concur.

____________


GLEN R. WALKER, Appellant, v. THE


No. 7135

December 20, 1973 516 P.2d 739

Appeal from judgments of conviction and sentence of the First Judicial District Court,


The Supreme Court held that where prosecutorial comments on defendant's testimony that

he had two prior felony convictions were not objected to and where no request for instruction

regarding the comments was made until after the jury had retired for deliberations, failure to

object or to request an instruction precluded appellate review.

Affirmed.


Robert List, Attorney General, Carson City; Michael E. Fondi, District Attorney, and

Ronald T. Banta, Deputy District Attorney, Carson City, for Respondent.


Criminal Law.

Where prosecutorial comment on defendant's testimony that he had two prior felony convictions was

not objected to and where no request for instruction regarding the comments was made until after the jury

had retired for its deliberations, failure to move to strike, move for mistrial, assign misconduct or request

an instruction precluded appellate consideration.

OPINION

Per Curiam:

A jury convicted appellant of two separate burglaries (NRS 205.060) and he is now

serving consecutive sentences for the offenses. He asks us to reverse the convictions because

the prosecutor made several remarks about appellant's two prior felony convictions during his

closing summation to the jury.

The record reflects that the testimony relating to the two prior convictions was given by

appellant in response to questions propounded by his own attorney. 1

The record also reflects that defense counsel neither objected to the prosecutor's comments

nor requested the court to instruct the jury regarding the comments until after the jury had

retired for its deliberations.

Since the prosecutor's remarks were not considered serious enough to provoke timely

objection by defense counsel, they will not be considered at this time. Bonnenfant v. State, 86

Nev. 393, 469 P.2d 401 (1970). We need not consider if the remarks were either improper or

prejudicial, because the failure to move to strike, move for a mistrial, assign misconduct or

request an instruction, will preclude appellate consideration. See Clark v. State, 89 Nev. 392,

513 P.2d 1224 (1973), and cases cited therein.

Affirmed.

____________________

1

Defense Counsel: “Mr. Walker, have you ever been convicted of a felony in Storey County?”

Appellant: “Yes, sir.”

Defense Counsel: “What was that felony?”

Appellant: “Grand larceny.”

Defense Counsel: “Have you ever been convicted of a felony in Washoe County?”

Appellant: “Yes, sir.”

Defense Counsel: “What was that felony?”

Appellant: “Robbery.”

____________

��89 Nev. 570, 570 (1973) Lamb v. State��

JERRY RAY LAMB, Appellant, v. THE STATE


No. 7315

December 21, 1973 516 P.2d 1405

Appeal from order of Fifth Judicial District Court, Mineral County, denying pretrial

motion to suppress evidence; Kenneth L. Mann, Judge.

The Supreme Court, Mowbray, J., held that defendant who told police officers they could

look anywhere they wanted freely and voluntarily consented to the search of his home.

Affirmed.

Lohse and Lohse, Chartered, of Reno, for Appellant.

Robert List, Attorney General, Carson City, and Charles Waterman, District Attorney,

Mineral County, for Respondent.

Criminal Law; Searches and Seizures.

Where police officers explained to defendant that a burglary had occurred and that foot tracks from

burglarized building led to defendant's residence and that they had come to his residence to investigate

the crime and police officer did not assert a right to search but requested of defendant that police be

allowed to look through house, defendant who stated to officer “You can look anywhere you want; I don't

care” freely and voluntarily consented to general search of premises, rendering marijuana found during

search admissible in prosecution for possession of marijuana. NRS 453.030; U.S.C.A.Const. Amends.

4, 14.

OPINION


Jerry Ray Lamb appeals to this court from an order of District Judge Kenneth L. Mann

denying Lamb's pretrial motion to suppress evidence.

On December 18, 1972, Lamb and a codefendant, not a party to this appeal, were charged

with possession of marijuana in violation of NRS 453.030. During a preliminary hearing held

on December 22, 1972, counsel for Lamb objected to the admission in evidence of the

marijuana, which the police officers had found in Lamb's home. The magistrate overruled the

objection and ordered Lamb to stand trial in the district court. On February 16, 1973, Lamb

filed a motion to suppress the ��

��89 Nev. 570, 571 (1973) Lamb v. State��

evidence, claiming that the search was invalid and that the evidence obtained therefrom

should be suppressed. The district judge denied the motion, and Lamb now appeals. 1

1. The Facts.

Shortly before midnight on December 11, 1972, officers of the Mineral County Sheriff's

Department, accompanied by a Nevada highway patrolman, investigated a burglary at

Culbertson Motor Supply in the town of Hawthorne, Nevada. Numerous tracks had been left

in the snow around the building where the burglary had taken place, and Officer Gifford of

the highway patrol discovered a set of footprints in the fresh snow that led from Culbertson

Motor Supply to the side door of the residence of the appellant, Lamb. Gifford and Sheriff's

Deputy Charles Gaw proceeded to the residence and knocked on the side door where the

footprints terminated. After a short delay, the door was opened by Lamb, who had apparently

been awakened by the knocks on the door. When Lamb inquired as to the purpose of the visit,

Deputy Gaw advised him that there had been a burglary in the vicinity, that the tracks led to

Lamb's door, and that Gaw wished to ask Lamb some questions.

Lamb stated, in response, that he had been in the residence for some time, and that he did

own a pair of “dingo” boots similar to those which had made tracks in the snow. When asked

if the officers could see the boots, Lamb replied that they could. Officer Gifford asked if they

could come in the house, and defendant-appellant readily admitted them to the living room.

Lamb then showed his boots to Deputy Gaw, who examined them and found them to be dry.

Lamb made further inquiry about the visit and asked what had been taken from the burglary.

Deputy Gaw advised him that a burglary had occurred down the alley and that the tracks

came to his door. When Officer Gifford asked Lamb if he could look around inside the house,

Lamb replied that he didn't care and that the police officers could look anywhere they wanted.

Officer Gifford then proceeded into the kitchen and in a kitchen cabinet found a brown

paper sack containing 3 baggies of what appeared to be marijuana. In a storage compartment

in the stove, he found a shopping bag that contained 25 baggies of what appeared to be

marijuana. Deputy Gaw then advised Lamb of his constitutional rights and placed him under

arrest for possession of a controlled substance.

____________________

1

Such orders are no longer appealable. Stats. Nev. 1973, ch. 730, at 1489-1490.

��89 Nev. 570, 572 (1973) Lamb v. State��

2. The Consent of Search.

The State contends that the seizure of the marijuana was lawfully permissible because

Lamb had given the officers a valid consent to search his home.

The question then is: What must the State present to prove the voluntariness of the

consent? Lamb has urged on this appeal that the State must prove that the one giving the

permission to search knew in fact that he had a right to withhold his consent. The recent case

of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973), held that when a subject

of a search is not in custody and the State wishes to justify a search on the basis of consent,

the Fourth and Fourteenth Amendments require that the State must demonstrate that the

consent was in fact voluntary, and that “voluntariness” is to be determined from the totality of

the surrounding circumstances. The High Court in Bustamonte specifically ruled, however,

that, while knowledge of a right to refuse consent is a factor to be taken into account, the

State need not prove that the one giving permission to search knew that he had a right to

withhold his consent.

We turn to examine the totality of the circumstances surrounding Lamb's consent to the

search. The officers knew that a burglary had occurred. Foot tracks from the burglarized

building led to Lamb's residence. The police officers explained to Lamb what had happened

and the reason they had come to his home and that they were investigating a criminal act. The

officers did not assert a right to search, nor did they make other statements that would reflect

that Lamb was submitted to an assertion of authority. When Officer Gifford requested of

appellant that he be allowed to look through the house, Lamb stated to Gifford, “You can

look anywhere you want; I don't care.” The record shows that Lamb consented to a general

search of his premises. There is no evidence of coercion, express or implied. The record

supports the judge's finding that Lamb freely and voluntarily gave his consent to search his

home.

The order of the district court denying Lamb's motion to suppress is affirmed.

Thompson, C. J., and Gunderson, Batjer and Zenoff, JJ., concur.

____________

��89 Nev. 573, 573 (1973) Heffley v. Warden��

JAMES HEFFLEY, Appellant, v. WARDEN, NEVADA

STATE PRISON, Respondent.

No. 7278

December 27, 1973 516 P.2d 1403

Appeal from an order denying post-conviction relief, Second Judicial District Court,

Washoe County; Grant L. Bowen, Judge.

Proceeding by defendant for post-conviction relief following his being sentenced to 10

years in prison after he entered plea of guilty to charge of receiving stolen property. The

district court entered order denying post-conviction relief, and the defendant appealed. The

Supreme Court, Gunderson, J., held that defendant's guilty plea was not required to be set

aside for failure to specifically refer to defendant's Fifth Amendment privilege against

self-incrimination before accepting his plea.

Affirmed.

Legarza, Lee & Barengo, of Reno, for Appellant.



Criminal Law.

Defendant's guilty plea was not required to be set aside for failure to specifically refer to defendant's

Fifth Amendment privilege against self-incrimination before accepting his plea, where record supported

determination that defendant was in fact informed of all of his rights, and did in fact enter his plea

knowingly and voluntarily. NRS 174.035, subd. 1; U.S.C.A.Const. Amend 5; Fed.R.Cr.P. 11, 18

U.S.C.A.

OPINION


Appellant originally was charged with several crimes, and as a recidivist. Plea bargaining

resulted in abandonment of all charges, except one of receiving stolen property (NRS

205.275), to which appellant pleaded guilty. Soon after being sentenced to 10 years in prison,

appellant instituted post-conviction proceedings seeking to withdraw his plea. Following an

evidentiary hearing the district judge denied relief, stating “that on the basis of the record in

this case, it is clear that [appellant] understood the nature and consequences of his plea.”


Although appellant does not contest the correctness of this statement, he urges that our

decision in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), compels a reversal because

the court did not specifically refer to appellant's Fifth Amendment privilege against

self-incrimination before accepting his plea. The State contends a guilty plea need not be set

aside for failure to mention one of the constitutional rights alluded to in Higby, where the

record supports a determination that the defendant was in fact informed of all his rights, and

did in fact enter his plea knowingly and voluntarily. We agree.

NRS 174.035(1), which is patterned on Fed.R.Cr.P. 11, requires that before accepting a

plea of guilty or nolo contendere, a court must address the defendant personally and

determine that the plea is made voluntarily with understanding of the nature of the charge and

the consequences of the plea. In McCarthy v. United States, 394 U.S. 459 (1969), the United

States Supreme Court held that a federal trial judge's failure to comply with Rule 11 was

reversible error. Although the Supreme Court's McCarthy decision did not apply to state

proceedings, two months later, in Boykin v. Alabama, 395 U.S. 239 (1969), the Court

imposed a similar standard on state courts. It should be noted, however, that in Boykin the

sentencing court undertook no examination of the defendant whatever, at the time it accepted

his plea. Thus, the Supreme Court was only required to decide generally that due process

requires “the utmost solicitude of which the courts are capable in canvassing the matter with

the accused to make sure he has a full understanding of what the plea connotes and of its

consequences.” 395 U.S. at 243-244. The Court was not constrained to detail what inquiries

would constitute an acceptable “canvassing.”

Boykin did indicate that the court's “canvassing” should accomplish at least two tasks: (1)

assure that the defendant does not improvidently or involuntarily waive his constitutional

right to jury trial, right to confront witnesses, and privilege against self-incrimination; and, (2)

facilitate and deter appellate and collateral proceedings on the plea. Thus, Boykin did allude

to the privilege against self-incrimination, and other constitutional rights. “We feel, however,

that these rights were set out to demonstrate the gravity of the trial court's responsibility, but

that no procedural requirement was imposed that they be enumerated.” Stinson v. Turner, 473

F.2d 913, 915 (10th Cir. 1973). As said in Brady v. United States, 397 U.S. 742 >� =/?�0C�D�� A�� ) �� 2


(1970), “[t]he new element added in Boykin was the requirement that the record must

affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly

and voluntarily.” 397 U.S. at 747-748, n. 4.

It is true, of course, that in Higby v. Sheriff, on which appellant relies, this court set forth

what we believe to be an appropriate and sufficient line of inquiry for a court to follow, in

satisfying the mandate of Boykin. However, although we believe the criteria of Higby remain

suitable as a guideline for our courts to follow, Boykin did not require the articulation of

talismanic phrases. It required only “that the record must affirmatively disclose that a

defendant who pleaded guilty entered his plea understandingly and voluntarily.” Brady, at

747-748. Accord: United States v. Sherman, 474 F.2d 303 (9th Cir. 1973); Stinson v. Turner,

cited above; McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973); Merrill v. State, 206

N.W.2d 828 (S.D. 1973). If anything in Higby may be read to suggest otherwise, it is

disapproved.

We find no error in the trial court's determination that the record of the arraignment

proceedings established that appellant understood the nature and consequences of his plea.

Affirmed.


____________

��89 Nev. 575, 575 (1973) Eagle Thrifty Drugs v. Incline Village��

EAGLE THRIFTY DRUGS & MARKETS, INC., a Nevada Corporation, Appellant, v.

INCLINE VILLAGE, INC., a Nevada Corporation, and DOUGLAS NORTHPOINT, INC., a

Nevada Corporation, Respondents.

No. 7094

December 31, 1973 517 P.2d 786

Appeal from summary judgment of the Second Judicial District Court, Washoe County;

James J. Guinan, Judge.

Action to enjoin sale of certain real property, or in alternative, for declaration that

purchaser would hold title subject to plaintiff's right of first refusal to lease property pursuant

to agreement executed by plaintiff and defendants' predecessor in interest. The district court

rendered summary judgment in favor of defendant, and plaintiff appealed. The Supreme

Court, J��8�� )�� 0� �� 2��


Zenoff, J., held that right of first refusal contained in agreement was not too vague and

indefinite to be specifically enforced, and property in question was encumbered by a “first

right to lease,” and that issue as to whether an unlimited right of first refusal to lease violates

rule against perpetuities, which issue was not raised in trial court, was not properly an issue

on appeal.

Reversed and remanded for proceedings consistent with this opinion.

Robinson & Cassas, of Reno, for Appellant.

Goldwater, Hill, Mortimer & Sourwine, Ltd., of Reno, for Respondent Douglas

Northpoint, Inc.

McDonald, Carano, Wilson & Bergin, of Reno, for Respondent Incline Village, Inc.

1. Landlord And Tenant. Nevada recognizes a right of first refusal to lease real property.

2. Landlord and Tenant. Right of first refusal contained in agreement providing in part that “that party of the first part agrees that

before any building is leased for the purpose of a supermarket, that party of the first part, or its successors

or assigns, shall first notify the party of the second part, in writing, of its intention to lease such building or

portion thereof for the purpose of a supermarket, and in said notice shall state the area of a proposed

demised premises, the type of construction, and the proposed terms and conditions of the lease agreement,”

was not too vague and indefinite to be specifically enforced, and property in question was encumbered by a

“first right to lease.”

3. Landlord and Tenant. A right of first refusal to lease does not mature when the contemplated transaction is a sale of the

property as distinguished from a lease.

4. Appeal and Error. Issue as to whether an unlimited right of first refusal to lease violates rule against perpetuities, which

issue was not raised in trial court, was not properly an issue on appeal.

OPINION


Appellant sought to enjoin the sale of certain real property located at Incline Village, Lake

Tahoe, by or to any of the respondents, or in the alternative, that the court decree that the�� +�� #��+��


purchaser would hold title subject to the appellant's right of first refusal to lease said property

pursuant to agreement executed by the appellant and the respondents' predecessor in interest.

The trial court rendered summary judgment in favor of the respondents declaring that the

right of first refusal claimed by the appellant is void and a nullity.

The sole issue for our consideration on appeal is whether the property in question is

encumbered by appellant's “first right to lease.”

In April of 1965, appellant agreed in writing to lease certain real property located at Incline

Village from Lakeview Shopping Center, Inc., a subsidiary of Crystal Bay Development

Company, for a term of 20 years with an option to renew. At the same time, Crystal Bay and

the appellant executed an agreement giving the latter a first right to lease certain described

property for supermarket purposes pursuant to terms and conditions set forth in this

agreement. 1

Crystal Bay, in contemplation of the development of a primary shopping center for Incline

Village and in consideration of appellant's lease with Lakeview, agreed that appellant would

be granted a first right to lease any building or portion thereof which would be constructed or

used as a supermarket on any of the described real property. It was agreed that from date of

receipt of notice of intention to lease, appellant was to have 30 days within which to accept or

reject the lease. The agreement purported to bind Crystal Bay's successors and assigns.

The Crystal Bay-Eagle Thrifty agreement was duly recorded and respondents were at all

relevant times aware of its provisions.

[Headnote 1]

1. It is respondents' contention that Nevada does not recognize a right of first refusal to

lease real property. For this conclusion they claim the support of our decision in City of Reno

v. Silver State Flying Service, 84 Nev. 170, 438 P.2d 257 (1968). In Silver State, the plaintiff

sought damages for anticipatory breach of a lease agreement containing the following

provision: “. . . Lessee shall have a right of first refusal to �#�� 2

____________________

1

The heart of the agreement reads as follows: “[t]hat party of the first part (Crystal Bay) agrees that before

any building is leased for the purpose of a supermarket, that party of the first part, or its successors or assigns,

shall first notify the party of the second part, in writing, of its intention to lease such building or portion thereof

for the purpose of a supermarket, and in said notice shall state the area of the proposed demised premises, the

type of construction, and the proposed terms and conditions of the lease agreement.”


extend this lease for such term and on the same conditions and terms offered to any other

person for the uses contemplated in the agreement.” The trial court instructed the jury that

they could consider damages for breach of the right of first refusal in addition to damages for

breach of the principal lease. We disallowed such damages saying that the entire renewal

provision was too indefinite and uncertain to be regarded as a binding agreement. This

decision was and is correct insofar as it controls in an action to recover damages for breach of

an executory right of first refusal and can be explained by the speculative and uncertain

nature of such damages. We would, however, put to rest any notion that this decision can be

interpreted to mean that a right of first refusal contained in a lease governed by Nevada law is

a nullity in an action to specifically enforce such right when the underlying contract is

sufficiently definite to grant equitable relief.

[Headnote 2]

2. Respondents urge that the right of first refusal contained in the Crystal Bay-Eagle

Thrifty agreement is too vague and indefinite to be specifically enforced and is in essence

only an agreement to agree or an agreement to negotiate in the future.

A right of first refusal is sometimes said to be a right to elect to take specified property at

the same price and on the same terms and conditions as those contained in a good-faith offer

by a third person if the owner manifests a willingness to accept the offer. Once the owner

manifests such willingness, the right of first refusal, heretofore an executory right, ripens into

an option. See Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (Fla.App. 1970). In

other cases, the expression “first refusal basis” has been said to give the prospective

purchaser the first right to buy upon terms established by the seller, the corollary of such

agreement, whether or not expressed, being that the owner will not sell to any other party at

more favorable terms. See Bennett Veneer Factors, Inc. v. Brewer, 441 P.2d 128 (Wash.

1968).

The Crystal Bay-Eagle Thrifty agreement is subject to the following interpretation: Crystal

Bay and its successors and assigns of that portion of the property described in the agreement

which is designated for a supermarket are bound by the terms of the first right of refusal.

Whether the potential lessor initiates an offer for a lease arrangement or whether the

suggestion comes from a third party, once the lessor manifests a willingness to enter into a

lease on stated terms and conditions, the appellant must be given a first opportunity to lease

upon such terms and conditions. The lessor is precluded from making ��


a spurious offer which he knows will be refused so that he may approach a third party on

more favorable terms. Of course, the holder of the property is not required to lease nor is he

obliged to offer or to accept an offer which is not satisfactory. On the other hand, the holder

of the right of first refusal must be given a first opportunity to accept or reject any terms

which are satisfactory to the would-be lessor.

[Headnote 3]

We would make it clear, however, that a right of first refusal to lease does not mature

when the contemplated transaction is a sale of the property as distinguished from a lease.

[Headnote 4]

3. Respondents further argue that an unlimited right of first refusal violates the rule

against perpetuities. It is unnecessary to decide this point as it was not raised in the trial court

and is not properly an issue here.

That part of the judgment of the lower court which holds that the first right of refusal is

void and a nullity is reversed with directions to enter judgment for the appellant declaring that

title to the subject property is held by the respondents and their successors in interest subject

to the appellant's right of first refusal.

Reversed and remanded for proceedings consistent with this opinion.


____________

��89 Nev. 579, 579 (1973) Williams v. Zellhoefer��

JAMES N. WILLIAMS, as an Individual and as Guardian ad Litem of JAMES WILLIAMS,

Jr., Appellant, v. HOWARD ZELLHOEFER and SKYLINE RANCH, Respondents.

No. 6931

December 31, 1973 517 P.2d 789

Appeal from judgment of the Eighth Judicial District Court, Clark County; Carl J.

Christensen, Judge.

The Supreme Court held that failure of appellant's counsel to attempt to confine or relate

his argument to such record as was available justified decision on merits in respondents'

favor.

Affirmed.

��89 Nev. 579, 580 (1973) Williams v. Zellhoefer��


W. Owen Nitz, of Las Vegas, for Respondents.

1. Appeal and Error. Failure of appellant's counsel to attempt to confine or relate his argument to such record as was available

justified decision on merits in respondents' favor.

2. Appeal and Error. If appellant presents no argument or authority in support of an alleged error in the court below, the

Supreme Court will not consider the assignment, unless the error is so unmistakable that it reveals itself by

a casual inspection of record.

OPINION

Per Curiam:

In appellant's Opening Brief, his counsel specifies five errors. Counsel's arguments

concerning the first four assumed facts not in the record on appeal, which consists of the

pleadings and a statement of the evidence, submitted by respondents, and settled and

approved by the trial court pursuant to NRCP 75(n). The trial court expressly rejected and

disapproved a different statement of the evidence which appellant's counsel submitted.

[Headnote 1]

On appeal, appellant's counsel has made no attempt to confine or relate his argument to

such record as is available, which to us seems to justify deciding the merits of the action in

respondents' favor. As to the fifth assignment of error, counsel has proffered no argument

whatever.

[Headnote 2]

“If appellant presents no argument or authorities in support of an alleged error in the court

below, this court will not consider the assignment, unless the error is so unmistakable that it

reveals itself by a casual inspection of the record.” Allison v. Hagan, 12 Nev. 38, 42 (1877);

Gardner v. Gardner, 23 Nev. 207, 45 P. 139 (1896); Candler v. Ditch Co., 28 Nev. 151, 80 P.

751 (1905); Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964);

Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970).

Affirmed.

____________

��89 Nev. 581, 581 (1973) Szczeraski v. Richard��

NICHOLAS SZCZERASKI and TESSIE F. SZCZERASKI, Husband and Wife, Appellants,

v. GEORGE B. RICHARD and HELEN E. RICHARD, Husband and Wife, Respondents.

No. 6989

December 31, 1973 517 P.2d 791

Appeal from judgment in declaratory relief action, Eighth Judicial District Court, Clark

County; Joseph S. Pavlikowski, Judge.

Action by makers for declaration that terms of promissory note had been validly modified.

The district court found for defendants, and makers appealed. The Supreme Court held that

evidence warranted finding that consideration was wanting for modification of terms so as to

require exaction of only 3 percent interest and so as to regard note as paid in full when

$25,000 had been credited to principal.

Affirmed.

Taylor Professional Corporation, of Las Vegas, for Appellants.

George E. Graziadei, of Las Vegas, for Respondents.

1. Appeal and Error.

Findings of fact by trial court will not be set aside unless clearly erroneous. NRCP 52(a).

2. Declaratory Judgment. Evidence, in action by makers for declaration that terms of promissory note had been validly modified,

warranted finding that consideration was wanting for modification of terms so as to require exaction of

only 3 percent interest and so as to regard note as paid in full when $25,000 had been credited to principal.

OPINION

Per Curiam:

Appellants commenced a declaratory relief action in the court below, seeking a

determination that the original terms of their promissory note to respondents had been validly

modified two years later by a subsequent agreement. It is undisputed that respondents in fact

had executed a document directing their bank, which held the original note for collection, to

exact only 3 percent interest from appellants' monthly payments of $450, rather than 6 percent

as originally agreed, and �� .&(�///��

��89 Nev. 581, 582 (1973) Szczeraski v. Richard��

to consider the note paid in full when $25,000 had been credited to principal. However,

respondents proffered the defense that consideration for this modification was wanting, and

evidence on both sides of this and other factual issues was adduced at trial.

[Headnotes 1, 2]

Findings of fact by a trial court will not be set aside unless clearly erroneous. NRCP 52(a);

Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971); Brandon v. Travitsky, 86 Nev. 613, 472

P.2d 353 (1970). The trial court's findings in the instant case are supported by the record, and

thus are not a basis for reversing the judgment entered in respondents' favor.

Affirmed.

____________

��89 Nev. 582, 582 (1973) First Western Saving v. Steinberg & Clemens��

FIRST WESTERN SAVINGS AND LOAN ASSOCIATION, a Nevada Corporation, and

FIRST WESTERN FINANCIAL CORPORATION, a Delaware Corporation Qualified to do

Business in Nevada, Appellants and Cross-Respondents, v. FREDERICK T. STEINBERG

and M. A. CLEMENS, Respondents and Cross-Appellants.

No. 6692

December 31, 1973 517 P.2d 793

Appeals and cross-appeal from orders denying motions before final judgment, Eighth

Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.

Appeals and cross-appeal from orders of the district court denying motions for an order

assessing damages allegedly caused by injunctions previously entered in the action and later

dissolved, denying motion for attorneys' fees incurred in resisting such motion and requesting

a change in court's original order. The Supreme Court held that the appeal did not lie in the

absence of a ruling by the trial court that there was no just reason for delay or any express

direction for the entry of judgment.

Appeals and cross-appeal dismissed.

Hahn, Cazier, Thornton, Hoegh & Leff, of Los Angeles, California, and Milton W. Keefer,

of Las Vegas, for Appellants and Cross-Respondents.

��89 Nev. 582, 583 (1973) First Western Saving v. Steinberg & Clemens��

Simon, Sheridan, Murphy, Thornton & Medvene, of Los Angeles, California, and Daryl E.

EngeBregson, of Las Vegas, for Respondents and Cross-Appellants.

Appeal and Error.

Appeal did not lie from orders of trial court denying motions for order assessing damages allegedly

caused by injunction previously entered and dissolved, denying motion for attorneys' fees incurred in

resisting that motion, and requesting change in court's original order, where court did not make

determination that there was no just reason for delay, and made no express direction for entry of

judgment. NRCP 54(b).

OPINION

Per Curiam:

While respondents' original complaint against appellants remained pending, appellants

filed a motion for an order assessing damages allegedly caused by injunctions previously

entered in the action and dissolved. The district court denied appellants' motion, and denied

respondents' motion for attorneys' fees incurred in resisting it. The court also later denied a

motion by appellants, which requested a change of its original order. The court made no

determination, pursuant to NRCP 54(b), that there was no just reason for delay, and made no

express direction for the entry of judgment.

We perceive no proper way to distinguish this case from our prior decisions, holding that

the absence of the determination and direction contemplated by NRCP 54(b), where requisite,

is a jurisdictional defect. See, for example: Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d

956 (1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963).

The appeals and cross-appeal must be dismissed.

____________

��89 Nev. 583, 583 (1973) Essex v. Guarantee Insurance Co.��

MARTIN ESSEX, Appellant, v. GUARANTEE

INSURANCE COMPANY, Respondent.

No. 6927

December 31, 1973 517 P.2d 790

Appeal from judgment entered upon third party complaint, Eighth Judicial District Court,

Clark County; Joseph S. Pavlikowski, Judge.


Employer brought action against insurer to recover on policy for amount employee and

wife had allegedly withdrawn from employer's bank account under dishonest or fraudulent

circumstances within meaning of policy. The insurer filed a third party complaint against the

employee seeking indemnity and subrogation. The district court entered judgment in favor of

employer against the insurer on complaint and in favor of the insurer against the employee on

the third party complaint and appeal was taken by employee who argued that judgment

depended on finding that he had acted fraudulently or dishonestly which was a fact neither

pleaded in third party complaint nor tried. The Supreme Court held that records showed that

employee's trial counsel involved himself in aspects of trial relating to whether conduct of the

employee and his wife should be considered fraudulent and hence issue was tried by consent

of all parties and court properly treated it as raised by pleadings.

Affirmed.

Thomas R. Severns, of Las Vegas, for Appellant.

Lorin D. Parraguirre, of Las Vegas, for Respondent.

Pleading.

Record disclosed that trial counsel for third party defendant employee, sued by employer's insurer on

third party complaint for indemnity and subrogation with respect to employer's action on insurance

contract to recover for sum employee and wife had withdrawn from employer's bank account under

allegedly dishonest or fraudulent circumstances, involved himself in aspects of trial relating to whether

the conduct of employee and wife should be considered fraudulent and therefore such issue was tried by

consent of parties and court properly treated it as raised by pleadings. NRCP 15(b).

OPINION

Per Curiam:

Appellant's employer brought an action on a contract of insurance issued by respondent,

seeking recovery of $4,800 which appellant and his wife had withdrawn from the employer's

bank account under circumstances which the employer alleged to be “dishonest” or

“fraudulent” within the meaning of the policy in question. The respondent filed a third party

complaint against appellant, seeking indemnity and subrogation, �� +��


but manifesting respondent's belief that appellant acted properly in making the withdrawal.

The court entered judgment in favor of appellant's employer and against respondent on the

complaint, and in favor of respondent and against appellant on the third party complaint. This

appeal follows.

On appeal, appellant argues that the judgment against him depends on a finding that he

acted dishonestly or fraudulently, which he contends was a fact neither pleaded in

respondent's third party complaint, nor “tried by express or implied consent of the parties.”

NRCP 15(b). However, we are satisfied that appellant's contention is contrary to the record,

which reflects that appellant's then counsel involved himself in aspects of the trial relating to

whether the conduct of appellant and his wife should be considered fraudulent. 1 We

therefore consider that the issue of whether or not such conduct constituted “dishonest or

fraudulent” acts within the meaning of the policy was tried by the consent of all of the parties,

and the court properly treated it as raised by the pleadings. Close v. Isbell Construction Co.,

86 Nev. 524, 471 P.2d 257 (1970); Arley v. Liberty Mut. Fire Ins., 80 Nev. 5, 388 P.2d 576

(1964); United Tungsten v. Corp. SVC, 76 Nev. 329, 353 P.2d 452 (1960).

“This court has repeatedly given effect to the provisions of NRCP 15(b) to the effect that

when issues not raised by the pleadings are treated by express or implied consent of the

parties, they shall be treated in all respects as if they had been raised in the pleadings and that,

though the pleadings may be amended to conform to the evidence, failure to amend does not

affect the result of the trial of such issues.” Id., at 331.

Affirmed.

____________________

1

Page 71 of the record, for example, reflects that appellant's counsel urged admission of certain evidence

tendered by respondent's counsel, saying: “If the Court please, would this not be relevant as to the allegation of

fraud?” Present counsel did not represent appellant at trial.

____________

��89 Nev. 586, 586 (1973) Knight v. Witco Chemical Co.��

CHARLES KNIGHT and PATRICIA KNIGHT, Appellants, v. WITCO CHEMICAL

COMPANY, INC., a Corporation; GOLDEN BEAR OIL COMPANY, a Corporation, a

Division of Witco Chemical Co., Inc.; SHELL OIL COMPANY, a Corporation; ASPHALT

SERVICE COMPANY, a Corporation; TELFER TANK LINES, INC., a Corporation;

JAMES H. CLAYTON and WILLIAM CANESSA, Respondents.

No. 6849

December 31, 1973 517 P.2d 792

Appeal from judgment denying leave to file second amended complaint, Sixth Judicial

District Court, Humboldt County; Llewellyn Young, Judge.

The Supreme Court held that although it did not finally dispose of the action, trial court's

ruling was appealable and that trial court was warranted in determining that prior pleadings,

which named nonexistent persons and entities as parties defendant, did not toll statute of

limitations.

Affirmed.

Echeverria and Osborne, Chartered, of Reno, for Appellants.

Goldwater, Hill, Mortimer & Sourwine, of Reno, for Respondents Asphalt Service

Company and Telfer Tank Lines, Inc.

Hibbs & Bullis, Ltd., of Reno, for Respondent Shell Oil Co.

Hardy, Erich & Brown, of Sacramento, California, and Paul H. Lamboley, of Reno, for

Respondents Witco Chemical Company, Inc., Golden Bear Oil Company, James H. Clayton,

and William Canessa.

1. Appeal and Error. Judgment denying leave to substitute thirteen causes of action against respondents in place of “names” of

nonexistent persons and entities alluded to generally in appellant's original complaint was appealable where

district court made express determination that there was no just reason for delay, and expressly directed

entry of judgment. NRCP 54(b).

2. Limitation of Actions. Determination that original pleading, which named none existent persons and entities as party defendants,

did not toll statute of limitations applicable to personal injury actions was �� )�� #� ��

��89 Nev. 586, 587 (1973) Knight v. Witco Chemical Co.��

warranted where record reflected no intent whatever to name respondents, who were

subsequently sought to be named as defendants, or anyone like them as party defendants,

either on theories proffered in proposed second amended complaint, which was sought to

be filed after expiration of limitations period, or at all. NRCP 10(a).

OPINION

Per Curiam:

[Headnote 1]

The appellants, plaintiffs below, have appealed a judgment denying leave to substitute

some thirteen causes of action against respondents, in place of “names” of non-existent

persons and entities alluded to generally in appellant's original complaint and in their first

Amended Complaint, i.e.: “JOHN DOES I-V, Individuals; BLACK & WHITE

CORPORATIONS I-V, Corporations; and ABLE AND BAKER COMPANIES I-V,

Co-Partnerships.” 1 The district court believed that the statute of limitations applicable to

personal injury actions, which appellants concede would bar an independent suit against

respondents, also precluded the requested amendment.

[Headnote 2]

Appellants contend the district court acted erroneously because NRCP 10(a), unlike the

comparable federal rule, provides: “. . . A party whose name is not known may be designated

by any name, and when his true name is discovered, the pleading may be amended

accordingly.” However, we think the court was warranted in determining that appellants' prior

pleadings did not toll the statute of limitations, even under our version of the rule, because the

record reflects no intent whatever to name respondents or anyone like them party defendants,

either on the theories later proffered in appellants' proposed Second Amended Complaint or

at all. Cf. Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969); Tehansky v.

Wilson, 83 Nev. 263, 428 P.2d 375 (1967).

Affirmed.

____________________

1

Although it did not finally dispose of the action, this ruling was appealable because the district court made

an express determination that there was no just reason for delay, and expressly directed the entry of judgment.

NRCP 54(b).

____________

��89 Nev. 588, 588 (1973) Jackson v. State��

ROBERT FRANKLIN JACKSON, Appellant, v. THE


No. 7070

December 31, 1973 517 P.2d 794



Defendant was convicted in the district court of possession of narcotics. Defendant

appealed. The Supreme Court held that defendant's Fourth Amendment right to privacy was

not infringed when an officer, looking for a fugitive, entered a public men's room at a liquor

store, observed defendant and another in plain view with narcotics, and arrested defendant.

Affirmed.

Morgan D. Harris, Public Defender, and Robert L. Stott, Deputy Public Defender, Clark




Searches and Seizures.

Defendant's Fourth Amendment right to privacy was not infringed when officer, looking for fugitive,

entered public men's room at liquor store, observed defendant and another in plain view with narcotics,

and arrested defendant. U.S.C.A.Const. Amend. 4.

OPINION

Per Curiam:

Convicted of possessing narcotics and sentenced to five years in prison, appellant contends

his Fourth Amendment right to privacy was infringed when the officer who arrested him,

looking for a fugitive, entered a public men's room at the Friendly Liquor Store in Las Vegas,

and observed appellant and another in plain view with narcotics. Cases on which appellant

relies, which are concerned with intrusion into the reasonably expected privacy of a toilet

stall, are obviously inapposite to the case at bar.

The appeal is without merit; the judgment and sentence are affirmed.

____________

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