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58 Nev. 1, 1 (1937)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 58
____________
58 Nev. 1, 1 (1937) Los Angeles v. District Court
THE CITY OF LOS ANGELES, CALIFORNIA, A Municipal Corporation, and
DEPARTMENT OF WATER AND POWER OF LOS ANGELES, Petitioners, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA and HON.WILLIAM E. ORR, Judge Thereof, Respondent.
No. 3187
May 6, 1937. 67 P. (2d) 1019.
1. Appearance.In action against foreign municipal corporation wherein municipality appeared specially and moved to
quash service of summons on jurisdictional grounds, order extending time heldnot to convert special
appearance into a general appearance as against contention that municipality by availing itself of the
extension made a general appearance, irrespective of whether extension of time was made at instance of
municipality or by court on its own motion.
2. Prohibition.In original proceeding for writ of prohibition to restrain district court from proceeding with action against
foreign municipal corporation after district court had denied municipality's motion to quash service of
summons, failure of municipality to take an exception to ruling of district court denying motion to quash
heldimmaterial since lack of an objection or exception in district court did not affect jurisdiction of
supreme court in the original proceeding or affect its discretion.
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58 Nev. 1, 2 (1937) Los Angeles v. District Court
3. Prohibition.Appeal from order denying foreign municipal corporation's motion to quash service of summons where
municipality had made a special appearance therefor heldno to afford a plain, speedy, and adequateremedy in the ordinary course of law so as to preclude issuance of writ of prohibition to restrain district
court from proceeding with action.
4. Corporations.Foreign municipal corporation which had constructed an electric transmission line on public lands of the
United States located within state heldnot foreign corporation or incorporated company within general
statutes providing for service of process on nonresident companies owning property or doing business
within state, and hence service of summons on secretary of state in accordance with general statutes gave
lower court no jurisdiction over municipal corporation (Comp. Laws, sec. 8581; sec. 8579, as amended by
Stats. 1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, 43 U.S.C.A.
sec. 617-617t).
The term corporations is never construed to include municipal corporation. The term
company may include a corporation but not a municipality.
5. Statutes.Supreme Court should not speculate beyond the reasonable import of words used in statutes.
6. Corporations.Foreign municipal corporation which had constructed an electric transmission line on public lands of
United States located within state heldnot subject to service of summons under general statute applicable
to service of process on nonresident companies owning property or doing business within state on theory
that it came into state in its proprietary capacity (Comp. Laws. sec. 8581; sec. 8579, as amended by Stats.
1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, secs. 617-617t).
7. Municipal Corporations.Statute providing that any municipal corporation entering state for purpose of doing business shall be
subject to laws of state relative to taxation, police regulations, and all laws specifically applicable toparticular business in which municipalities may engage that are applicable to foreign corporations doing
like business in state heldnot to authorize service of summons on foreign municipal corporation which
had constructed an electric transmission line on public lands of United States located within state in like
manner as on foreign corporations (Comp. Laws, sec. 8581; Stats. 1933, c. 107, sec. 4; Boulder Canyon
Project Act, 43 U.S.C.A. secs. 617-617t).
8. Appeal and Error.Rule that a point made for the first time on appeal will not EHFRQVLGHUHGE\UHYLHZLQJFRXUW
HPEUDFHVRQO\QRQMXULVGLFWLRQDOTXHVWLRQV
58 Nev. 1, 3 (1937) Los Angeles v. District Court
be considered by reviewing court embraces only nonjurisdictional questions.
9. Prohibition.Rule that writ of prohibition will not issue to an inferior court unless attention of court whose proceedings
it is sought to arrest has been called to alleged lack or excess of jurisdiction, is not applicable where lack of
jurisdiction is apparent on face of proceedings.
10. Prohibition.Whether petitioner for writ of prohibition to restrain district court from proceeding with action after
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overruling motion to quash service of summons had complained of insufficiency or irregularity of service
on its motion in district court heldimmaterial in considering application for writ of prohibition where
insufficiency of service was due to lack of jurisdiction apparent on face of proceedings.
Original proceeding by City of Los Angeles, Calif., a municipal corporation, and another
for a writ of prohibition directed to the Eighth Judicial District Court of the State of Nevada
and the Honorable William E. Orr, judge thereof. Peremptory writ of prohibition issued asprayed.
Ray L. Chesebro, City Attorney; S.B. Robinson, Chief Assistant City Attorney; Gilmore
Tillman, Deputy City Attorney; G. Ellsworth Meyer, Deputy City Attorney; andA.S.
Henderson, of Counsel, for Petitioners:
It would be an anomaly indeed if a court not having jurisdiction could acquire it by
granting an extension of time on its own motion. Such a rule would be as illogical as holding
that by erroneously denying a motion to quash service the court could acquire jurisdiction.
Such, of course, is not the rule. Pacific State, etc. v. Second Judicial District Court, 48 Nev.53, 226 P. 1106.
We deem it elementary that prohibition is an original proceeding in this court, and, of
course, it follows that whether there was an exception taken in another court, or one allowed
by statute, is immaterial.
Appeal does not lie from an order refusing to quash service. Klepper v. Klepper, 51 Nev.
145, 271 P.336.
Prohibition will lie if an appeal from a judgment PLJKWZDLYHWKHODFNRIMXULVGLFWLRQ
58 Nev. 1, 4 (1937) Los Angeles v. District Court
might waive the lack of jurisdiction. Chaplin v. Superior Court, 81 Cal. App. 367, 253 P. 954.
Prohibition is the proper remedy to protect a defendant from the expense of an unnecessary
trial. Evans v. Superior Court, 107 Cal. App. 372, 290 P. 662; Dep't. of Public Works v.
Superior Court, 197 Cal. 215, 239 P. 1076; Davis v. Superior Court, 184 Cal. 691, 195 P.
390.
The Nevada statutes do not confer jurisdiction over a municipal corporation by service on
the secretary of state. Secs. 7579 and 8581 N.C.L. Statutes providing for constructive or
substituted service must be strictly construed. Perry v. District Court, 42 Nev. 284, 174 P.
1058; State v. State Bank, 37 Nev. 55, 139 P. 505.
A municipal corporation is not within the term corporation. City of Pasadena v. RailroadCommission, 183 Cal. 526, 192 P. 25.
A municipal corporation does not become a private corporation by selling electrical energy
or discharging proprietary functions. City of Pasadena v. R.R. Comm., supra; Jochimsen v.
City of Los Angeles, 54 Cal. App. 715, 202 P. 902; L.A. Gas & Elec. Co. v. Dep't. of Public
Service of the City of Los Angeles, 52 Cal. App. 27, 197 P. 962.
A municipal corporation is not included in the general words of a statute. Mayrhoffer v.
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Bd. of Education, 89 Cal. 110, Kubach v. McGuire, 199 Cal. 215, 248 P. 676; City of
Inglewood v. County of Los Angeles, 207 Cal. 697; City of Los Angeles v. County of Los
Angeles, 88 Cal. App. Dec. 228.
Harold M. Morse, C.D. Breeze and Guy E. Baker, for Respondents:
Prohibition will not lie where there is a plain, speedy, and adequate remedy in the ordinary
course of law. Sec. 9256 N.C.L.
Where petitioners requested, in their appearance in the respondent court, that the action be
dismissed as to WKHPWKHLUDSSHDUDQFHZDVDQGLVDJHQHUDODSSHDUDQFHDQGWKH\DUHLQWKDWFRXUWIRUDOOSXUSRVHV
58 Nev. 1, 5 (1937) Los Angeles v. District Court
them, their appearance was and is a general appearance, and they are in that court for allpurposes. Webster v. Crump, 246 P. 243; Clawson v. Boston Acme Mines Dev. Co. et al.,
269 P. 147, 59 A.L.R. 1318; 2 Am. Jur. 793, sec. 19, n. 19; Elliott v. Lawhead (Ohio), 1 N.E.
577; Daily et al. v. Foster (N.M.), 128 P. 171.
The procuring by a defendant or the granting of extension of time to plead by a court, if
acted upon by a defendant, is a general appearance. It is immaterial at whose request or upon
whose motion the court made the ruling. Longcor v. Atlantic Terre Cotta Co. (Minn.), 142
N.W. 310.
We believe it well-settled law that an objection to the jurisdiction of the trial court must be
raised in the first instance in the trial court and cannot otherwise be made a basis for a writ of
prohibition. 22 R.C.L. 27, sec. 27; Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121;
Grinbaume v. Superior Court, 199 Cal. 741, 209 P. 1005.It was necessary that petitioners preserve an exception to the ruling of the trial court
denying their motion to quash the service of summons. Secs. 8871 and 8874 N.C.L.; Burden
et al. v. Stephens (Okla.), 49 P. (2d) 1098.
When a municipality engages in the business of furnishing electric lights, water, etc., to the
public, it is not then discharging or exercising governmental functions or power, but is, quoad
hoc, exercising proprietary or business powers, and as to such business it is governed by the
same rules of law which are applicable to ordinary business corporations engaged in like
businesses. 6 McQuillin (2d ed.), p. 903, n. 44; Athens v. Miller (Ala.), 66 So. 702; Bennett
v. City of Portland (Ore.), 265 P. 433.
Petitioners did not complain in the lower court of any insufficiency or irregularity in themanner of making the service, which service was made in strict accordance with the
provisions of sec. 8581 N.C.L. Stats.
58 Nev. 1, 6 (1937) Los Angeles v. District Court
1933, ch. 107, sec. 4, definitely defines the legal character of petitioners, and places them in
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the same category as any other foreign corporation doing business in this state.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in prohibition.The petition, among other matters, shows: That petitioner City of Los Angeles, Calif., is a
municipal corporation organized and existing under and by virtue of the constitution and laws
of the State of California and has its domicile in the county of Los Angeles, State of
California.
That petitioner Department of Water and Power of the City of Los Angeles is a department
of the city of Los Angeles, a municipal corporation, and is organized and existing under and
by virtue of the constitution and laws of the State of California.
That petitioners under and in accordance with the Boulder Canyon Project Act of the
United States (43 U. S. C. A. secs. 617-617t), have constructed on the public lands of the
United States within the boundary of the State of Nevada an electrical transmission line
connecting the generating plant of the United States located at Boulder Dam with the electricsystem of the city of Los Angeles in said city.
That on the 16th day of September 1935, Mamie Jackson, a citizen and resident of the
State of Georgia, caused to be filed in the above-entitled court a complaint, entitled, Mamie
Jackson, as Administratrix of the Estate of William B. Bush, deceased, Plaintiff, v. Daniel
Nicoll, Department of Water and Power of the City of Los Angeles, a municipal corporation,
and Bureau of Power and Light of the City of Los Angeles, a municipal corporation,
Defendants, in which plaintiff claimed damages because of the alleged wrongful death of
said deceased, in an automobile collision between an automobile being operated by him, and
an automobile being RSHUDWHGE\GHIHQGDQW'DQLHO1LFROODQGZKLFKLWZDVDOOHJHGZDV
RZQHGDQGUHJLVWHUHGLQ&DOLIRUQLDE\VDLG'HSDUWPHQWRI:DWHUDQG3RZHU
58 Nev. 1, 7 (1937) Los Angeles v. District Court
operated by defendant Daniel Nicoll, and which it was alleged was owned and registered in
California by said Department of Water and Power.
That on the 31st day of March 1936, an alias summons was issued in said action, a copy of
which, together with a copy of said complaint, was delivered to and left with the secretary of
state, or deputy secretary of state of Nevada, on the 22d day of April 1936.
That neither of petitioners was ever personally served with said summons or complaint,not has any writ of attachment been issued or served, not has any order for, or publication of,
summons ever been made in said action.
That on the 6th day of June 1936, petitioner Department of Water and Power appeared
specially, and not generally, and moved respondents to quash said pretended service of
summons and complaint, for the reason that the complaint showed that said department was a
municipal corporation of the State of California, and the court had no jurisdiction over said
department, which motion was set for hearing before respondents, at which said
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administratrix did appear by her attorneys of record and oppose the same on its merits. That
respondents denied said motion to quash.
That petitioners have not filed any answer, demurrer, or notice of appearance in said action
and have no plain, speedy, or adequate remedy at law by appeal or otherwise.
The petition also recites that respondents, unless restrained, will seek to exercise
jurisdiction over petitioner Department of Water and Power in said action and deprivepetitioners of their right to due process of law under the fourteenth amendment to the
constitution of the United States, and the equal protection of the laws under said amendment.
It is further alleged that the exercise of said jurisdiction by respondents is in violation of
article 1, section 8, of said constitution.
Upon the application the alternative writ of prohibition issued. Respondents interposed a
demurrer to the SHWLWLRQDQGPDGHUHWXUQDQGDQVZHUWRWKHZULW
58 Nev. 1, 8 (1937) Los Angeles v. District Court
petition and made return and answer to the writ. Annexed to the latter is a certified copy of all
the pleadings, records, files, and minutes of the court in the action alleged in the petition.
Relative to the petitioner Department of Water and Power it is alleged in said complaint as
follows:
That at all times hereinafter mentioned, the defendant, Department of Water and Power of
the City of Los Angeles, was, and now is, a municipal corporation, duly created, organized
and existing under and by virtue ofthe laws of the State of California, and at all times had,
and now has, charge, superintendence and control of works for providing and supplying said
city and its inhabitants and others with electrical energy for light, heat, power and other
purposes, and at all said times was, and now is, constructing and erecting an electrical power
transmission line and other facilities in its proprietary capacity in the said County of Clark,State of Nevada, for the transmission of electrical power and energy from the Boulder Dam in
said county and state to the City of Los Angeles for the purpose of supplying said city and its
inhabitants and others with electrical power and energy.
It is alleged in the complaint that said Daniel Nicoll at the time of said collision, which
occurred on a public highway, in said Clark County, was an employee of the other defendants
and acting within the scope of his employment in connection with the erection and
construction of said power transmission lines and other facilities.
The return and answer show that the default of defendant Daniel Nicoll was duly entered
in said action and that service of an alias summons issued therein, a copy of which, together
with a copy of the complaint, was, as alleged in the petition, delivered to and left with thesecretary of state or a deputy secretary of state of the State of Nevada. In connection with
such delivery, it is alleged that said secretary of state was served with SURFHVVLQVDLGDFWLRQ
LQWKHPDQQHUDQGIRUPDVE\ODZSURYLGHG
58 Nev. 1, 9 (1937) Los Angeles v. District Court
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process in said action in the manner and form as by law provided.
In connection with respondents' denial of the motion to quash the summons, as stated in
the petition, it is denied in the return and answer that the appearance of the petitioner
Department of Water and Power, on said motion, was a special appearance, and alleged that
the same was a general appearance. The return and answer also show that the motion to quash
was made upon the ground that said department is a municipal corporation of California and
that said action can only be brought in the courts of that state.
Counsel for respondents did not present any argument as to the demurrer and we are of the
opinion that it is without merit. It is overruled.
Petitioners contend that being municipal corporations of another state, respondents are
without jurisdiction of them, (1) because municipal corporations can be sued only in the state
of their situs, and (2) because the Nevada statutes do not confer jurisdiction over a municipal
corporation by service on the secretary of state.
1. We will first dispose of some objections made by respondents. They contend petitioner
Department of Water and Power made a general appearance on the motion to quash. We think
not. No relief was sought by the motion other than on jurisdictional grounds. In fact, counselfor respondents in the argument in this court abandoned the position that the appearance on
the motion itself was general, but contend that an order of the court made when the motion to
quash was submitted for decision has that effect. The order relied on reads:
The court at this time stated it would extend counsel for the defendants ten days after the
decision of said motion, in which to further plead, if necessary.
Whether the extension of time was made at the instance of petitioner or by the court on its
own motion does not appear.
Respondents contend, however, that this is immaterial; DQGWKDWSHWLWLRQHUE\DYDLOLQJLWVHOIRIWKHH[WHQVLRQPDGHDJHQHUDODSSHDUDQFH
58 Nev. 1, 10 (1937) Los Angeles v. District Court
and that petitioner, by availing itself of the extension, made a general appearance. The case of
Longcor v. Atlantic Terra Cotta Co., 122 Minn. 245, 142 N. W. 310, 312, cited in support of
this contention, does not sustain it, but holds to the contrary. In that case a petition and
motion stated a special appearance for the purpose of excepting to the service of summons
and complaint were presented and the court made an order for plaintiff to show cause why the
same should not be set aside. The order also enlarged the time for answering in the event of
the service being held sufficient. It does not appear whether the extension of time to answerwas made at the request of defendant or on the court's own motion. The supreme court said
this was immaterial, and held there was no general appearance. The court also said:
* * * when objection to the jurisdiction is clearly made, the mere fact that he [defendant]
is given and accepts an enlargement of the time to answer until his motion is disposed of
cannot be held to be inconsistent with such objection, nor can it be said that he thereby
assumed that jurisdiction exists. Any other rule would be altogether too technical for the
practical administration of justice.
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We are of the same opinion and hold that the order extending time in the instant case did
not convert the special appearance into a general one.
2. Another objection is that petitioners did not take an exception to the ruling of the court
denying the motion to quash the summons. We think the failure to take exception is
immaterial. This is an original proceeding and the lack of objection or exception in the lower
court could in nowise affect the jurisdiction of this court, nor do we perceive why it shouldinfluence our discretion. The case of Burden et al. v. Stephens, 174 Okl. 312, 49 P. (2d) 1098,
cited by respondents was not an original proceeding. It is not in point or analogous.
3. Respondents state in their brief that prohibition ZLOOQRWOLHZKHUHWKHUHLVDSODLQVSHHG\DQGDGHTXDWHUHPHG\LQWKHRUGLQDU\FRXUVHRIODZ
58 Nev. 1, 11 (1937) Los Angeles v. District Court
will not lie where there is a plain, speedy, and adequate remedy in the ordinary course of law.
They present no argument to show that such a remedy is or was available to petitioners, butcontent themselves with the above statement and citation of the statute so providing. There is
no such remedy by appeal from the order denying the motion to quash, Klepper v. Klepper,
51 Nev. 145, 271 P. 336, and we are aware of none with the statutory description.
4, 5. Has the lower court jurisdiction of the petitioner Department of Water and Power?
Unless the service of summons on the secretary of state constituted service on that
department, the court has no jurisdiction, for no other service is claimed. There is no statute
in this state providing specifically for service of summons on a foreign municipal corporation.
If such service is contemplated, it must be found within the intention of sections 8579, 8580,
and 8581 of the Nevada Compiled Laws. The former, as amended, Stats. 1935, c. 20, p. 26,
reads in part:
The summons must be served by delivering a copy thereof attached to a certified copy ofthe complaint as follows: * * * 2. If the suit is against a foreign corporation, or a non-resident
joint-stock company or association, doing business and having a managing or business agent,
cashier, or secretary within this state; to such agent, cashier, or secretary, or to an agent
designated in section 82: or in the event no such agent is designated as provided in section 82,
to the secretary of state or the deputy secretary of state, as provided in section 83.
Section 8580 prescribes that :
Every incorporated company or association created and existing under the laws of any
other state, or territory, or foreign government, or the government of the United States,
owning property or doing business in this state, shall appoint and keep in this state an agent
upon whom all legal process may be served for such corporation or association. Suchcorporation shall file a FHUWLILFDWHSURSHUO\DXWKHQWLFDWHGE\WKHSURSHURIILFHUVRIVXFKFRPSDQ\ZLWKWKHVHFUHWDU\RIVWDWHVSHFLI\LQJWKHIXOOQDPHDQGUHVLGHQFHRIVXFK
DJHQW
58 Nev. 1, 12 (1937) Los Angeles v. District Court
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certificate, properly authenticated by the proper officers of such company, with the secretary
of state, specifying the full name and residence of such agent.
The latter section provides:
If any such company shall fail to appoint such agent, or fail to file such certificate for
fifteen days after a vacancy occurs in such agency, on the production of a certificate of the
secretary of state showing either fact, which certificate shall be conclusive evidence of thefact so certified to be made a part of return of service, it shall be lawful to serve such
company with any and all legal process, by delivering a copy to the secretary of state, or, in
his absence, to any duly appointed and acting deputy secretary of state, and such service shall
be valid to all intents and purposes: * * *provided,further, that before such service shall be
authorized, the plaintiff shall make or cause to be made and filed, an affidavit setting forth the
facts, showing that due diligence has been used to ascertain the whereabouts of the officers of
such corporation, and the facts showing that direct or personal service on, or notice to, such
corporation cannot be had; and provided further, that if it shall appear from such affidavit
that there is a last-known address of such corporation, or any known officer thereof, the
plaintiff shall, in addition to and after such service on the secretary of state, mail or cause to
be mailed to such corporation, or to such known officer, at such address, by registered mail, acopy of the summons and a certified copy of the complaint, and in all such cases the
defendant shall have forty days from the date of such mailing within which to appear in said
action. This section shall be construed as giving an additional mode and manner of serving
process, and as not affecting the validity of any other valid service.
The return and answer show that the plaintiff complied with the latter section in all
respects, and respondents therefore claim that a valid service of summons was effected on
petitioner Department of Water and Power.
58 Nev. 1, 13 (1937) Los Angeles v. District Court
Are the words foreign corporations and incorporated company found in the foregoing
sections meant to include foreign municipal corporations? We think they will not bear that
construction. The word corporations is never construed to include municipal corporations.
It is uniformly conceded that the general statute regulating service upon corporations has no
application to municipal corporations, and in the absence of an express statute in reference
thereto service must be made in accordance with the common law. 20 Standard Ency. of Prac.
p. 100; People ex rel. Howard v. Cairo, Ill., 50 Ill. 154; Cloud v. Pierce City, 86 Mo. 357.
Our legislature left no doubt on this score as to resident municipal corporations, for, after
providing in said section 8579, as amended, for the manner of service of summons in a suitagainst a corporation formed under the laws of this state, it provided specifically in the same
section for service of summons on a resident municipal corporation. In this respect the statute
provides:
5. If against a county, city, or town, to the chairman of the board of commissioners,
president of the council or trustees, mayor of the city, or other head of the legislative
department thereof.
As these sections were enacted contemporaneously, what reason exists for believing that
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the legislature intended the word corporations when employed as to corporations of other
states to be more comprehensive and include municipalities of such other states? None that
we can perceive. Besides, in sections 8580 and 8581, the legislature refers to a foreign
corporation as designated in section 8579, as a company, and while a proper signification of
the word company may include a corporation, it is not to be taken in the sense of a
municipality. The intention of the legislature should be derived from the sections mentioned,and we should not speculate beyond the reasonable import of words.
We are referred to no authorities which hold that the word company may include a
municipality.
6. The argument that the petitioner must be classed DVDSULYDWHFRUSRUDWLRQEHFDXVHDVFRQWHQGHGE\UHVSRQGHQWVLWFDPHLQWRWKLVVWDWHLQDSURSULHWDU\FDSDFLW\LVDOWRJHWKHU
WRRWHQXRXV
58 Nev. 1, 14 (1937) Los Angeles v. District Court
as a private corporation, because, as contended by respondents, it came into this state in a
proprietary capacity is altogether too tenuous. If the legislature had intended the section to
apply to a foreign municipal corporation when exercising a particular class of powers, it
probably would have made such distinction apparent.
7. Respondents say that while section 8581 N. C. L. would of itself be sufficient to
authorize service upon the petitioner Department of Water and Power, section 4 of chapter
107, Stats. 1933, definitely defines its legal character and places it in the same category as any
other foreign corporation doing business in this state. They quote the section.
Any such municipal corporation so entering this state for the purpose of doing business
herein shall be subject to the laws of this state relative to taxation, police regulations, and all
laws and reasonable regulations specifically applicable to any particular business or activityin which such municipalities may engage, as the same are now, or hereafter may be made,
that are applicable to foreign corporations doing like or similar business or work in this
state.
We see no help for respondents' position in this statute. It does not provide for service of
process on a foreign municipal corporation by serving the secretary of state or otherwise.
Moreover, it is a legislative expression that foreign municipal corporations are not considered
included in the term foreign corporations, for they are distinguished, and certain laws of
the state applicable to the latter are made applicable to the former.
8-10. It is contended by respondent that petitioner may not in this proceeding question the
validity of the service because it did not complain of any insufficiency or irregularity of suchservice in the court below. Petitioner asserts that, while its argument there was devoted
almost exclusively to the contention that it could be sued only in the county of its situs, that it
was stated in the briefs in the trial court that petitioner did not concede the validity of the
attempted service on the VHFUHWDU\RIVWDWH
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58 Nev. 1, 15 (1937) Los Angeles v. District Court
secretary of state. The fact of the matter is immaterial. While this court has uniformly held
that a point made for the first time on appeal will not be considered, the rule embraces only
nonjurisdictional questions. Allen v. Ingalls, 33 Nev. 281, 282, 287, 111 P. 34, 114 P. 758,
Ann Cas. 1913e, 755. Moreover, the general rule quoted by respondents from 22 R.C.L. p.
27, that a writ of prohibition will not be issued to an inferior court unless the attention of the
court whose proceedings it is sought to arrest has been called to the alleged lack or excess of
jurisdiction is subject to several exceptions. One of these is where lack of jurisdiction is
apparent on the face of the proceedings. 22 R.C.L. p. 28: Havemeyer v. Superior Court, 84
Cal. 327, 24 P. 121, 10 L.R.A. 627, 18 Am. St. Rep. 192; St. Louis, etc., R. Co. v. Wear, 135
Mo. 320, 36 S. W. 357, 658, 33 L.R.A. 341. This proceeding falls within that exception.
As the lower court is without jurisdiction for the reasons stated, it is unnecessary to
determine petitioners' other point, that a municipal corporation is suable only in the state of
its situs.
It is ordered that a peremptory writ of prohibition issue restraining the said Eighth judicial
district court and judge thereof from further proceeding in said action.
On Petition for Rehearing
August 10,1937.
Per Curiam:
Rehearing denied.
____________
58 Nev. 16, 16 (1937) Nevada Industrial Comm'n v. Leonard
NEVADA INDUSTRIAL COMMISSION, Appellant, v. BEULAH H. LEONARD and
JOHN D. LEONARD, Her Husband, Respondents.
No. 3164
May 28, 1937. 68 P.(2d) 576.
1. Workmen's Compensation.A teacher's testimony that she was watching her step at time of accident did not require finding that
teacher was not observing children on school grounds as required by statute, as respects whether injury was
compensable as arising out of and in course of employment (Comp. Laws, sec. 5687, subd. 5).
2. Workmen's Compensation.A school district which has accepted terms of compensation act prior to teacher's accident was an
employer, and teacher was an employee within terms of the act (Comp. Laws, sec. 2688).
3. Schools and School Districts.
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A statute requiring teachers to hold pupils to strict accountability for their conduct to and from school and
on playgrounds and during intermissions requires teachers to observe conduct of pupils (Comp. Laws, sec.
5687, subd. 5).
4. Workmen's Compensation.Injuries resulting from a teacher's fall on rock in road near school while going from home to school
arose out of and in course of her employment so as to be compensable, where teacher was observing
children on school grounds or on their way to school as required by Statute (Comp. Laws, sec. 5687, subd.5).
5. Workmen's Compensation.A teacher injured while walking to school is entitled to compensation, if injuries arise out of and in
course of her employment, notwithstanding that industrial commission's classification of risks for teachers
does not include transportation hazards (Comp. Laws, secs. 2683, 2702, 2703).
Appeal from Second Judicial District Court, Washoe County;B.F. Curler, Judge.
Proceeding under the workmen's compensation law by Beulah H. Leonard, claimant, and
John D. Leonard, her husband, opposed by the Nevada Industrial Commission. From a
judgment awarding compensation to the plaintiffs and orders refusing to modify the findingsof fact and denying a motion for new trial, the Nevada Industrial Commission appeals.
Judgment and orders affirmed.
58 Nev. 16, 17 (1937) Nevada Industrial Comm'n v. Leonard
George L. Sanford, for Appellant:
The Nevada industrial commission had authority and the duty to classify the hazards and
risks of industry and fix rates accordingly, under sections 21(a), 21(b), and 22 of the act. The
commission classified school teacher employments and assigned to them a higher rate ofpremium than applied in other cases, to insure teachers exposed to transportation hazards and
protected against transportation hazards, than the rate for teachers not so exposed. The
industrial insurance act, in section 3(a), binds all accepting its terms, and is exclusive. It
constitutes a contract between the employer, the employee, and the state (sec. 1 [d]).
Inasmuch as in the case of school districts and school teachers the act is conclusive,
compulsory, and obligatory, the contract is more firmly entrenched than if election to accept
were optional, and the employee must accept compensation in the manner provided by the
act. Thus, she must be content to have her right to compensation limited to compensation for
injuries arising out of hazards recognized by the commission through rules of classification
and rates of premiums adopted pursuant to the power delegated to the commission by the act
itself. Such a delegation of power to fill in the details has been held proper. Ginocchio v.
Shaughnessy, 47 Nev. 129, 217 P. 581; United States v. Grimaud, 220 U.S. 506, 55 L. Ed.
563. The hazards of travel accidents was not a hazard against which plaintiff Beulah H.
Leonard was protected, as a matter of fact.
It is the contention of appellant, upon the facts, that Mrs. Leonard was disabled by an
injury occurring out of work time, away from her work place, and accidentally suffered when
she was doing no act she was hired to do for her employer, and no act which was reasonably
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proximate or incident to the work she was employed to do for her employer, in respect of the
time, place or character of such act. There was no relation of cause and effect between the
injury accidentally sustained and her proper work or any hazard or risk of her proper ZRUNDQGQRVXFKUHODWLRQRIFDXVHDQGHIIHFWFRXOGEHIRUHNQRZQRUFDQEHDIWHUNQRZQRU
UHDOL]HG
58 Nev. 16, 18 (1937) Nevada Industrial Comm'n v. Leonard
work, and no such relation of cause and effect could be foreknown or can be afterknown or
realized. It was an ordinary street accident sustained in going to work, not to be attributed to
any employment, and was not compensable as a matter of fact. Mrs. Leonard was not even
in the service of an employer, as defined by sections 7 1/2 and 7 1/2(a) of the act, at the
time of the injury. The last service she performed for the employer before the injury was on
the preceding Friday evening, when she finished her school work and left the schoolhouse
and did not thereafter resume it.
At the time and place of the injury, Mrs. Leonard was watching her step and not watching
the school children.
J. A. Sanders and Wm. McKnight, for Respondents:
The injuries involved in this case arose out of and in the course of the employment,
because:
(a) Mrs. Leonard was actually engaged in the performance of her statutory and contractual
duties at the time of her injury. Sec. 5687 N. C. L.; Scrivner v. Franklin School District, 50
Ida. 109, 293 P. 666; Logue v. Independent School District, 53 Ida. 44, 21 P. (2d) 534.
(b) If not actually engaged in the performance of her contractual and statutory duties at the
time of the injury, Mrs. Leonard was at least upon the premises of her employer, or at a placeso close thereto as to be considered a part thereof, for the purpose of commencing her work in
the schoolroom. 49 A .L. R. 426 (n.); 82 A. L. R. 1044 (sup. n.); 71 C. J. p. 716, sec. 445, nn.
71-73; Judson Manufacturing Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1.
(c) Even though Mrs. Leonard was not on the premises of her employer, or at a place so
close thereto as to be considered a part thereof, or doing anything except walking to
commence her work, she was certainly within the sphere or zone of her employment in the
schoolroom. Industrial Commission v. Barber, 117 Ohio St. 373, 159 N. E. 363; Barnett v.
Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A. L. R. 85; Redner v. H. C. Faber
6RQV$SS
58 Nev. 16, 19 (1937) Nevada Industrial Comm'n v. Leonard
& Sons, 180 App. Div. 127, 167 N. Y. S. 242; Bountiful Brick Co. v. Giles, 276 U. S. 154, 48
Supp. Ct. 221, 72 L. Ed. 507; Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 Atl. 596;
Texas Employers' Ins. Ass'n. v. Boecher (Tex. Civ. App.), 53 S. W. (2d) 327.
(d) Even though Mrs. Leonard was not actually engaged in the performance of her
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statutory or contractual duties, or on the premises of her employer or at a place so close
thereto as to be considered a part thereof, or within the sphere or zone of her employment in
the schoolroom, she was certainly on the way from her home to perform some special service
or errand or discharge some duty incidental to the nature of her employment, in the interest
of, or under the direction of, her employer. Kyle v. Greene High School, 208 Iowa 1037, 226
N. W. 71; Massey v. Board of Education, 204 N. C. 193, 167 S. E. 695; Mann v. Board ofEducation, 266 Mich. 271, 253 N. W. 294; Stockley v. School District, 231 Mich. 523, 204
N.W. 715; Scrivner v. Franklin School District, supra; Chandler v. Industrial Commission, 60
Utah 387, 208 P. 499; Lake v. City of Bridgeport, 102 Conn. 337, 128 Atl. 782.
(e) There was a casual connection between the injury and the employment. Cudahy
Packing Co. v. Parramore, 263 U. S. 418, 68 L. Ed. 366.
The arbitrary classification of rates by the Nevada industrial commission will not prevent
the payment of compensation, because liability for compensation is neither contractual nor
tortious, but grows out of a status which in turn springs from the hiring by operation of law.
Hall v. Industrial Commission of Ohio (Ohio App.), 3 N. E. (2d) 367, 371, 635, 637.
OPINION
By the Court, Taber, J.:
This is an appeal from a judgment of the Second judicial district court, Washoe County,
department No.
58 Nev. 16, 20 (1937) Nevada Industrial Comm'n v. Leonard
2, and from orders of that court refusing to modify the findings of fact and denying a motion
for new trial. Appellant was defendant in the court below. John D. Leonard was joined as aparty plaintiff because he was the husband of plaintiff Beulah H. Leonard.
On the morning of April 9, 1934, Mrs. Leonard, a teacher employed in the public school at
Gerlach, while walking home from her home to school, fell, breaking her hip. Her claim for
compensation was denied by the industrial commission, whereupon suit was brought in said
district court, which, after trial without a jury, rendered judgment, awarding compensation to
plaintiffs in the sum of $5,341.79. It was stipulated at the trial that said amount should be
awarded in the event plaintiffs recovered judgment.
The public school buildings at Gerlach are situated on land leased from the Western
Pacific Railroad Company. The school grounds are inclosed by a wire fence, in which the
only openings are gates affording entrance to and exit from the school grounds. The inclosurearound the school buildings is 304 feet long and 159 1/2 feet wide. The school grounds and
buildings run in a general northeasterly and southwesterly direction. In entering the grounds,
one goes in a northwesterly direction. In speaking of the aforesaid directions, it is the custom
of the residents of Gerlach to designate the southeasterly fence of the inclosure as the south,
the opposite fence as the north, and the two end fences as east and west, respectively. For the
sake of brevity, the latter designations will be used herein. The actual inclosure around the
school buildings does not conform to the boundaries described in the lease. The fences are
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somewhat to the north and west of the corresponding lines of the parcel of land described in
the lease. The greater part of the ground described in the lease is included within the fencing
actually inclosing the school grounds.
No plat of Gerlach has been filed with the county recorder of Washoe County, and the
thoroughfares used E\WKHSXEOLFDUHQRWQDPHG
58 Nev. 16, 21 (1937) Nevada Industrial Comm'n v. Leonard
by the public are not named. No formal dedication of said thoroughfares has ever been made.
The school grounds and buildings are on the north and east outskirts of the town, and there
are several thoroughfares approaching them from the south and west. These thoroughfares
serve the same practical purposes as would legally platted and dedicated streets. There are no
pavements or cement sidewalks at Gerlach.
The home of the Leonards was about a quarter of a mile, or perhaps a little more, in a
southwesterly direction from the schoolabout ten minutes' walk. At about 8:30 a.m., orperhaps a few minutes before that time, on the morning of said 9th day of April 1934, Mrs.
Leonard left her home for the sole purpose of going to the schoolhouse, there to make
preparations for teaching her classes and to ring the school bell at 8:45. The teachers were
expected to arrive at the schoolhouse each morning about 8:30. Along the south fence of the
inclosure around the school grounds, and just outside thereof, there is an open road or
thoroughfare without sidewalks or pavement. According to Miss Armbruster, this was the
only place to walk or drive cars in approaching the school gate from the west. There were
numerous stones in and upon the ground along this thoroughfare, and indeed in that vicinity
generally. Most of these stones were wholly embedded in the ground, but many of them
projected above the surface. There were also many stones lying loose on the surface of the
ground.Accompanying Mrs. Leonard were her eleven-year-old twin daughters, who were pupils in
the seventh grade. After Mrs. Leonard and her children had passed the southwest corner of
the school grounds, and while they were walking between that point and the entrance gate, the
heel on her left shoe slipped on one of the stones and she fell to the ground, breaking her hip.
The accident happened less than 10 feet distant from the south fence, and while Mrs. Leonard
and her children were walking in the customary and natural place on their way WRWKHHQWUDQFHJDWH
58 Nev. 16, 22 (1937) Nevada Industrial Comm'n v. Leonard
to the entrance gate. There was some testimony that the accident happened within the
boundaries of the land leased to the Gerlach school district, as said land is described in the
lease hereinbefore mentioned; but in our opinion the trial court was correct in its finding that
the accident happened on ground not included within said leased land, nor within the actual
wire fence inclosure of the school grounds. As we read the record, the testimony indicates
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clearly that the accident happened from 10 to 15 feet west of the west boundary of the land as
describes in the lease. This would place the scene of the accident at a point approximately 40
feet east of the southwest corner of the actual school inclosure, and approximately 125 feet
west from the gate, which at that time was the only place used as the entrance to and exit
from the school grounds.
It was between 8:35 and 8:40 a.m. when the accident happened. At the time of theaccident, and just prior thereto, two boys were on the school grounds, one of them playing
with a basketball and the other at the giant stride. Mrs. Leonard testified that she was
watching these boys just prior to, and at the time of the accident. I was watching the conduct
of children on the way to school, watching the conduct of the children on the school grounds
and going to the school to prepare lessons, as well as watching the school property and
children in the school grounds and in the school building. Besides Mrs. Leonard's daughters
and the two boys playing on the school grounds, there was a little girl coming to school,
playing around the schoolhouse. After the accident, this little girl helped one of Mrs.
Leonard's daughters pick up some of the papers dropped when she fell.
On cross-examination, Mrs. Leonard testified that as she was going along near the fence
that morning she was watching her step in order to avoid the rocks. Q. And you werewatching your step at the time this accident occurred? A. Yes.
58 Nev. 16, 23 (1937) Nevada Industrial Comm'n v. Leonard
As Mrs. Leonard came along by the fence just before the accident, she saw another
teacher, Mr. Lucas, enter the school buildings, and the other teacher, Miss Armbruster, was
the first person to come to where she was lying immediately after the accident. In
approaching the school grounds, Mrs. Leonard was following her customary pathway,
because, as she testified, it was the least covered with rocks.Mrs. Leonard was the high school teacher, but besides teaching history, Latin, and English
in high school, she also taught history to the fourth, fifth, sixth, and seventh grades in the
elementary school.
In leaving her home on the morning of the accident, it was Mrs. Leonard's intention to do
just what she had been accustomed to doing in the past while employed as a teacher in the
Gerlach school; that is, to observe the children along the way, to prepare for her classes upon
arrival at the schoolhouse, and to ring the school bell at 8:45.
1. Because Mrs. Leonard, on cross-examination, testified that at the time of the accident
she was watching her step, appellant argues that she could not at the same time have been
observing children on the school grounds or on their way to school. This does not appeal to usas being a fair construction of all the testimony, which, in our opinion, justifies the finding of
the trial court that, besides walking carefully, Mrs. Leonard was watching the two boys
playing on the school grounds.
There is left for our consideration the single question whether Mrs. Leonard's injury arose
out of and in the course of her employment.
Section 1 of the Nevada industrial insurance act (section 2680 N. C. L. 1929) reads:
When, as in this act provided, an employer shall accept the terms of this act and be governed
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by its provisions, every such employer shall be conclusively presumed to have elected to
provide, secure and pay compensation according to the terms, conditions, and provisions of
this act for any DQGDOOSHUVRQDOLQMXULHVE\DFFLGHQWVXVWDLQHGE\DQHPSOR\HHDULVLQJRXWRIDQGLQWKHFRXUVHRIWKHHPSOR\PHQWDQGLQVXFKFDVHVWKHHPSOR\HUVKDOOEHUHOLHYHGIURPRWKHUOLDELOLW\IRUUHFRYHU\RIGDPDJHVRURWKHUFRPSHQVDWLRQIRUVXFKSHUVRQDO
LQMXU\XQOHVVE\WKHWHUPVRIWKLVDFWRWKHUZLVHSURYLGHG
58 Nev. 16, 24 (1937) Nevada Industrial Comm'n v. Leonard
and all personal injuries by accident sustained by an employee arising out of and in the course
of the employment; and in such cases the employer shall be relieved from other liability for
recovery of damages or other compensation for such personal injury, unless by the terms of
this act otherwise provided.
2. The Gerlach school district accepted the terms of said act some time prior to the
accident involved in this case. We are satisfied that at the time of the injury the school district
was an employer and Mrs. Leonard an employee, as those terms are used in sections 7 1/2 and7 1/2(a) of said act (section 2688 N. C. L. 1929).
Section 39 of the act concerning public schools (section 5687 N. C. L. 1929) provides that
every teacher in the public schools shall: * * * 5. Hold pupils to a strict account for their
conduct on the way to and from school, on the playground, and during any intermission.
Appellant relies chiefly on its third and fourth assignments of error. In said third
assignment, appellant contends that the district court erred: In making the findings of fact on
insufficient evidence and with no substantial evidence in support thereof and against the
evidence. In finding as a fact that at the time and place of the injury Beulah H. Leonard,
plaintiff, was doing something reasonably incident and proximate thereto in point of
character, time and place.In said fourth assignment of error appellant complains that the trial court erred: In
concluding as a matter of law, contrary to law and against law, that the said plaintiff's injury
(1) happened in the course of employment and also (2) arose out of employment.
The positions of the respective parties have been fully and ably presented by counsel.
Many of the cases cited have not been helpful because of the absence of a statutory provision
such as that hereinbefore quoted from section 5687 N. C. L. 1929. On the other hand, some of
the cases cited in behalf of respondents have been of little assistance, for the reason that this
is not a VSHFLDOPLVVLRQVSHFLDOVHUYLFHVSHFLDOHUUDQGRUHPHUJHQF\FDOOFDVH
58 Nev. 16, 25 (1937) Nevada Industrial Comm'n v. Leonard
special mission, special service, special errand, or emergency call case.
A case presenting facts very similar to those in this case, and a statute similar to the
Nevada prescribing the duties of public school teachers, is that of Logue v. Independent
School District No. 33, 53 Idaho 44, 21 P. (2d) 534, 535.
In that case it appeared that a school teacher, while walking from her home to the
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schoolhouse, about one and one-half blocks, fell and broke her hip. The sole question in the
case was whether the accident arose out of and in the course of her employment as school
teacher. Amongst other things, the evidence showed that on the morning of the accident the
weather was stormy and snowy, and the sidewalks slippery; that the teacher was going to the
schoolhouse to begin her duties in the schoolroom; that immediately prior to and at the time
of the accident she was watching some school children who were snowballing; and that,while their conduct was not such as to call for a reprimand or a report in regard thereto, she
was watching their conduct, and was also on the lookout to observe any other pupils on their
way to school.
The Idaho statute (Code Idaho, 1932, secs. 32-1003) required school teachers to * * *
holds pupils to a strict account for disorderly conduct or improper language in or about the
building, on the playgrounds, and on the way to and from school.
In the course of its opinion the court, in Logue v. Independent School District No. 33,
supra, said: Even though respondent did not at the time find it necessary to discipline any
pupils, or notice conduct which would require a report, she was in a position to do so, and
was engaged in observing school children for that purpose, and the circumstances in the two
authorities following are sufficiently in point to support the conclusion that she was withinthe scope of her employment, and actively engaged in her duties expressly imposed upon her
by the VWDWXWHVDQGWKHUXOHV&RORUDGR&RQWUDFWLQJ&RY
58 Nev. 16, 26 (1937) Nevada Industrial Comm'n v. Leonard
statutes and the rules, Colorado Contracting Co. v. Industrial Commission, 74 Colo. 206, 219
P. 1075; Empire Health & Acc. Ins. Co. v. Purcell, 76 Ind. App. 551, 132 N. E. 664, and that
the accident arose in the course of, and out of her employment, Zeier v. Boise Transfer Co.,
43 Idaho 549, 254 P. 209; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S. W.(2d) 128.
3, 4. We are clearly of the opinion that the Nevada statute requiring public school teachers
to hold pupils to a strict account for their conduct on the way to and from school, and on the
playground and during any intermission, imposes upon such teachers, not merely the duty of
disciplining pupils after learning of any misconduct on their part, but the further duty of
observing their conduct to the end that they may be properly dealt with in the event of any
misconduct. It is not sufficient under this statute, that teachers apply disciplinary measures to
pupils whose misconduct may be reported to them or may come under their observation by
mere chance. The duty of teachers, under said statute, extends further than this, and they
must, to a reasonable extent, watch the pupils for the purpose of seeing to it that theirconduct, while on their way to and from school, on the playgrounds, and during all
intermissions, is proper.
5. Appellant calls our attention to sections 3(a), 21(a), 21(b), and 22(a) of the industrial
insurance act (sections 2683, 2702, 2703 N.C.L. 1929). It contends that the hazards of a
teacher's service are to be determined from the industrial commission's classification of risks
with proportional rates of premiums based thereon. It introduced in evidence the following
schedule of premium rates: State, counties, schools and cities, compulsory. Elective or
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appointive offices and all employees exposed to transportation hazard a total of ninety-six
cents per hundred dollar payroll. That is sixty cents for the compensation and thirty-six for
the medical benefits. Clerical employees not exposed to transportation hazards, WRWDOIRUW\FHQWVSHUKXQGUHGGROODUSD\UROOWZHQW\ILYHIRUFRPSHQVDWLRQDQGILIWHHQIRUWKH
PHGLFDO
58 Nev. 16, 27 (1937) Nevada Industrial Comm'n v. Leonard
total forty cents per hundred dollar payroll, twenty-five for compensation and fifteen for the
medical. Professors, teachers, and clerical, total of forty, twenty-five cents for compensation
and fifteen cents for medical benefits.
Appellant points out that the industrial commission act is a contract binding upon the state
and upon employers and employees who accept its provisions; also that the remedies
provided in that act are exclusive. According to appellant, the classification of rates for
school teachers constitutes a delimitation of the hazards of that particular employment against
which the employee is insured, that is, the hazards which can be said to arise out of the
employment, and Mrs. Leonard, as appellant urges, was not protected by transportation
hazards.
We are unable to perceive how transportation hazards enter into this case at all. Mrs.
Leonard at the time of the accident was not being transported to the schoolhouse, nor was any
vehicle responsible for her injury. It was simply the result of a fall while she was walking
from her home to the schoolhouse.
We think that the trial court reached the correct conclusions, both as to the facts and the
law.
The judgment and orders appealed from are affirmed.
____________
58 Nev. 28, 28 (1937) Hill v. State
JOHN E. HILL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 3178
June 1, 1937. 68 P.(2d) 569.
1. Criminal Law.Evidence that deputy sheriff attempted to locate state witness named in subpena every day for some
seventeen days preceding trial by visiting probable places of witness' employment, communicating with
secretary of labor union in city without state where witness had gone, and by otherwise searching and
inquiring, showed witness' unavailability sufficiently to authorize admission of witness' deposition taken at
preliminary examination, under statute (Comp. Laws, sec. 10775, as amended by Stats. 1933, c. 101).
2. Criminal Law.The testimony of magistrate who presided at preliminary examination that in his opinion accused was
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incapable of examining witnesses was insufficient to require rejection of deposition of unavailable witness
taken at preliminary examination, where no suggestion was made at trial that accused was unable to defend
himself, and accused's testimony showed he understood what testimony would aid or prejudice his case.
3. Criminal Law.In prosecution for murder, stained pocket knife found wrapped in wire in garbage can in toliet near scene
of killing was admissible, under evidence that killing was accomplished with knife, that similar wire was
found in accused's premises, and that accused, who admitted killing with smaller knife in self-defense, wasin toilet following killing.
4. Criminal Law.Under constitution defining supreme court's jurisdiction in criminal cases, court will not set aside verdict
of conviction for insufficiency of evidence if verdict is supported by any substantial evidence (Const. art.
6, sec. 4).
5. Homicide.Evidence supported conviction of second-degree murder, as against contention that killing was in
self-defense.
Appeal from Second Judicial District Court, Washoe County;B. F. Curler, Judge.
John E. Hill was convicted of murder in the second degree, and he appeals. Affirmed.
J. M. Frame, for Appellant:
Appellant contends that it was prejudicial error to admit in evidence the knife designated
as plaintiff's H[KLELW1R7KHUHLVDFRPSOHWHIDLOXUHRQWKHSDUWRIWKHVWDWHWRHVWDEOLVK
DQ\FHUWDLQRUUHOLDEOHLGHQWLILFDWLRQRIWKLVNQLIH
58 Nev. 28, 29 (1937) Hill v. State
exhibit No. 2. There is a complete failure on the part of the state to establish any certain or
reliable identification of this knife. The only testimony upon this point is that the wire on it
was similar wire to some of the wire found in the defendant's cabin. The defendant's positive
denial that he owned or had such a knife at the time of the difficulty is not overcome by what
would be merely conjecture or suspicion. State v. Codotte (Mont.), 42 P. 858.
The admission in evidence of the transcript of the testimony of the witness Mix was
likewise error. A proper foundation for the admission of his testimony taken at the
preliminary examination was not laid, in that it was not shown that the witness at the time of
the trial was either dead, absent from the state, or that his attendance at the trial could not
have been secured by the exercise of reasonable diligence. State v. Parker, 16 Nev. 79.
It was also error to admit the deposition of the witness Mix taken at the preliminary
examination. The defendant not being represented by counsel and not being in a mental or
physical condition to enable him to cross-examine the witness, the spirit and true meaning of
both the state and federal constitutions guaranteeing to the defendant the right to be
confronted by the witnesses against him was violated, to the prejudice of the defendant.
The evidence is insufficient to support the verdict, and the verdict is against the law. The
testimony offered by the state clearly corroborates the defendant's version of the difficulty,
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and all the evidence clearly shows that the defendant acted in self defense.
Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General;Ernest S. Brown, District Attorney, andNash P. Morgan, Deputy District
Attorney, for the State:
A weapon or instrument with which a crime might have been committed, found near thetime and scene ofWKHFULPHLVUHOHYDQWDQGDGPLVVLEOHLQHYLGHQFH
58 Nev. 28, 30 (1937) Hill v. State
the crime, is relevant and admissible in evidence. 16 C. J. 618, sec. 1225; State v. Jon, 46
Nev. 418, 211 P. 676, 217 P. 587; State v. Campbell (N. D.), 72 N. W. 935; State v. Yee
Gueng (Ore.), 112 P. 425.
Even without the testimony of Mix, we believe, from the authorities cited, the
wire-wrapped knife would be admissible, being handed to the officer making theinvestigation, at the time and place, by a by-stander who pointed out the place of finding,
together with the condition and appearance of the knife, the bloody toilet paper found on
appellant, the wire and pliers found in his cabin, the old grudge or bad blood existing, the
nature of the wounds, the condition of the pen knife with which appellant claimed to have
stabbed deceased, and the other facts in evidence.
However, the testimony of Mix, taken at the preliminary examination, was relevant,
competent and material, and it was not error to admit it. The testimony of Officer Geach and
of Deputy Sheriff Young shows that a subpena was issued and that a continuous and daily
search was made for the witness Mix from May 28 down to the date the officers testified.
Section 10775 N. C. L. expressly provides for the use of such testimony at the trial, and the
court has held the statute constitutional. State v. Jones, 7 Nev. 408; State v. Johnson, 12 Nev.121. Appellant was confronted by the witnesses at the preliminary examination and had an
opportunity to cross-examine them.
The jury did not have to believe appellant's story that he was attacked by Zoebel, nor his
testimony as to what took place. State v. Robinson, 54 Nev. 56, 6 P.(2d) 433; State v. Soars,
53 Nev. 235, 296 P. 1081. Appellant's story is unreasonable, and even if true would not
justify him in the killing; moreover, it is contradicted in more than one particular point by
disinterested and credible witnesses.
There is ample evidence to support the verdict. State v. Robinson, supra. And a verdict of
conviction will not EHVHWDVLGHLILWLVVXSSRUWHGE\DQ\VXEVWDQWLDOHYLGHQFH
58 Nev. 28, 31 (1937) Hill v. State
be set aside if it is supported by any substantial evidence. State v. Watts, 53 Nev. 200, 296 P.
26; State v. Squier, 56 Nev. 386, 54 P. (2d) 227.
OPINION
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By the Court, Taber, J.:
Defendant was convicted of murder of the second degree in department No. 2 of the
Second judicial district court, Washoe County, and sentenced to imprisonment in the state
prison for from ten years to life. This appeal is taken from the judgment, and from an order of
said district court denying a motion for new trial.Between 6 and 6:30 o'clock on the morning of May 12, 1936, on the sidewalk on the west
side of Center street between Douglas alley and Commercial row in the city of Reno,
witnesses observed defendant, aged seventy, and one Theodore Zoebel, aged eighty, engaged
in a violent physical altercation. Aside from the participants, there does not appear to have
been any eyewitness to the beginning of the combat. Zoebel died from stab wounds inflicted
upon him by defendant in said encounter. The killing is admitted, but at his trial appellant
pleaded self-defense.
Police Officer J. L. Geach testified that upon arriving at the scene of the trouble, he saw
Zoebel lying on the sidewalk, and upon being told by by-standers that the man who had done
the cutting had proceeded west on Commercial row, he and Officer Dean went partly around
the block to the intersection of Virginia street and Douglas alley. There, one Ed Walterspointed to defendant, who at that time was going east in Douglas alley. Thereupon the
officers went around to the front entrance of the Wine House on Commercial row, and
Officer Geach went through the Wine House and out its back door on Douglas alley, when he
again saw defendant proceeding east in the alley between the rear RIWKH:LQH+RXVHDQG
&HQWHUVWUHHW
58 Nev. 28, 32 (1937) Hill v. State
of the Wine House and Center street. The officer caught up with defendant and arrested himjust as he was turning into Center street from Douglas alley, about 40 feet south of the place
where the officer first found Zoebel lying on the sidewalk.
Defendant was with the officers when they took Zoebel to the hospital. On the way,
defendant volunteered the statement two or three times that he was justified in what he had
done. When Zoebel was taken into the hospital, Officer Dean also went in, while Geach
remained outside with defendant. At this time defendant again stated that he was justified in
what he had done and went on to tell Officer Geach that he had just protected himself as
would any other citizen.
In going through defendant's pockets at the police station, Mr. Geach found some pieces of
rope, a pocket knife, and a piece of toilet paper stained with what appeared to be blood.Defendant also had a package on his arm, tied with a string. In it was defendant's lunch.
Amongst other things, the lunch package contained a small filled jar, which had been
cracked. The pocket knife was an ordinary brown bone-handled pocket knife, with two
blades. This is the knife with which defendant claims he stabbed Zoebel. There was no
appearance of blood or blood stains on either of the blades of this knife. Defendant told the
officer he had wiped the blood off the knife with his fingers. The officer did not notice any
bruises, scratches, or abrasions on defendant's face.
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After searching defendant at the police station, the officer went back to the scene of the
trouble for the purpose of trying to find witnesses who had seen the trouble start. This was
about fifty minutes after he had first been called there. While standing in front of the Bank
Club, just south of Douglas alley on Center street, a man identifying himself as a Mr. Mix, in
the employ of the Nevada State Journal, handed him a knife. It was a pocket knife without
handles on, a long blade, I might say the blade was about three inches at least, and this EODGHZDVZLUHGRSHQ
58 Nev. 28, 33 (1937) Hill v. State
blade was wired open. There were blood stains on the blade. After handing this knife to the
officer, Mr. Mix took him to the toilet of the Wine House and there showed him a garbage
can in which there was what appeared to the officer to be a broken bottle and a little water.
Officer Geach further testified that on the second day after the trouble, he inspected the
cabin in which defendant had been living, and there found some wire; on the next day he alsofound there a pair of cheap pliers. The pliers, the wire, both knives, and the stained paper
were admitted in evidence at the trial.
Mr. Geach further testified that on the day of the trouble, after defendant's arrest, in the
office of the chief of police, defendant stated that there had been bad blood between him and
Zoebel for eight years; that he had been attacked by Mr. Zoebel; and that upon one occasion
Mr. Zoebel had caused his arrest. On May 12, and again on May 15, defendant stated that at
the time of the trouble on the morning of May 12, Zoebel attacked him with a ramal.
Officer Geach testified that on May 15 defendant denied ownership of the knife which had
been handed the officers by Mr. Mix; also that defendant said he had gone in the front door of
the Wine House and out the back door on the morning of the trouble, but that this was before
the altercation.With reference to the wire found in defendant's premises, Mr. Geach testified on
cross-examination that he would say it was the kind commonly used by electricians and for
various purposes, but he was not in a position to qualify; that it had been his observation that
this kind of wire was commonly used and generally on the market, and often used in the city
of Reno. Also on cross-examination he admitted that he was not to be understood as
testifying positively that the stains on the larger knife were blood. Defendant from the first,
says Mr. Geach, consistently maintained that he was MXVWLILHGLQVWDEELQJ=RHEHO
58 Nev. 28, 34 (1937) Hill v. State
justified in stabbing Zoebel. This officer estimated that Zoebel was about 5 feet 10 inches tall,
and weighed from 140 to 150 pounds.
Charles Warren Mix, the man who handed Officer Geach the knife with which the state
claims Zoebel was stabbed, did not appear as a witness at the trial, but his deposition taken at
the preliminary examination was admitted in evidence over defendant's objections, which will
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24/349
be considered later in this opinion. The substance of Mr. Mix's testimony follows: On the
morning of the trouble, he had occasion to go to the men's toilet in the rear of the Wine House
adjoining Douglas alley. He noticed a knife in the garbage can where there was about half an
inch of water. He had previously heard that somebody had been stabbed. He picked up the
knife and when he saw the officers, handed the knife to Officer Geach. He identified the
larger knife with the longer blade as the one he handed the officer. It was wrapped with wirewhen he found it just as it was when he examined it in court. It had a stain on the blade. He
could not exactly say whether it was blood or not.
Ed Walters, occupation building trades, who had lived in Reno about ten years, testified
that on the morning of the trouble, while in the front entrance of the Palace Club, he noticed
defendant and Zoebel scuffling on the sidewalk on Center street about half way between
Douglas alley and Commercial row. Zoebel was bleeding very badly and was following
defendant, who was coming towards witness. As they came nearer, Zoebel staggered and fell
on the sidewalk. Witness picked him up and put him over to the side of the building, noticing
that he was badly cut on the left side of the face, and that there was a cut also under the left
arm. Defendant walked on over to the corner and stood there mumbling, then he started west
on Commercial row. Witness followed defendant to Virginia street and told him not to crossthat street. Defendant turned to the left on Virginia street and went south to Douglas alley andWKHQVWDUWHGHDVWLQWKDWDOOH\
58 Nev. 28, 35 (1937) Hill v. State
then started east in that alley. Witness saw officers coming, stopped them and informed them
that defendant had just entered the rear of the Wine House, and as witness neared this bank
entrance, defendant came out and started east again in Douglas alley. Witness pointed out
defendant to Officer Geach, who followed him to Center street and north around the corneron the sidewalk where Zoebel had fallen, and arrested him.
On cross-examination Mr. Walters testified that defendant remained in the rear of the
Wine House from five to ten minutes. When he first saw Zoebel and defendant scuffling,
Zoebel had a ramal in his hand. Witness did not see any blows struck with it. Witness was
about 20 or 30 feet away when he saw the ramal in the hands of Zoebel.
Eli Francovich, an employee at the Wine House, who had resided at Reno all his life and
who had seen defendant many times, though not personally acquainted with him or Zoebel,
testified that while standing at the front of the Wine House, on the inside, two young men
came in the front door and he heard one of them saying to the other, That is him going into
the toilet now. Witness looked toward the rear of the building and saw a man entering thetoilet, whom he did not at that time recognize. Witness watched and in a few minutes saw
defendant coming out. Defendant turned and went out the back door into Douglas alley.
Witness testified that no one else had been in the toilet while defendant was there. Witness
went out through the back door, saw defendant proceeding east in Douglas alley, followed
him, and when he reached the end of the alley, saw the officers searching him.
On cross-examination, Mr. Francovich testified that the toilet was one in general use
where anybody could enter who saw fit, and that many men were in and out of that room
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every day. Defendant was in there not more than two or three minutes. This was around 6:30
a.m. at the latest.
58 Nev. 28, 36 (1937) Hill v. State
Fred East, a prospector who had been around Reno a number of years, and who had
previously seen both defendant and deceased, though not personally acquainted with either of
them, saw them scuffling and trying to clinch with each other on the sidewalk about 30 feet
north from Douglas alley, about 6 o'clock or maybe a little later. He did not see either one
strike the other at first, but a little later, just before Zoebel fell, he saw defendant strike him
on the left side of the face. He also saw Zoebel strike defendant over the head two or three
times with the whip end of the ramal. Zoebel's blows did not look very hard. He didn't look
like that he was very stout. After defendant had struck Zoebel, the latter grabbed hold of a
high iron sign post to steady himself. When he left that post, he reeled quite a bit, did not
walk very straight. From that post he went to the side of the Palace Club near the frontentrance and there fell. Witness was standing almost opposite the front entrance of the Palace.
About this time defendant told witness that Zoebel had been picking on him for the last eight
years, and I have fixed him so that he won't pick on me or anybody else. Defendant
referred to Zoebel as a s____ of a b____. He looked around at Zoebel and said, You will not
bother me any more; then he turned the corner and went west on Commercial row.
Mr. East testified, on cross-examination, that he did not see state's witness Walters at the
scene of the trouble. As Mr. Hill was walking away from Zoebel, the latter hit him over the
head two or three times with the ramal. Zoebel was holding the ramal by the loop and was
hitting defendant with the straps. Witness did not see the ramal doubled or folded up at any
time. Witness was near the front entrance of the Palace Club when he first saw defendant and
Zoebel scuffling on the sidewalk about 50 feet to the south. They were about 20 feet south ofwhere witness was standing when Zoebel commenced hitting defendant over the head with
the ramal, DQGDERXWIHHWIURPZKHUHZLWQHVVZDVVWDQGLQJZKHQKHVDZ=RHEHOFXWRQ
WKHIDFH
58 Nev. 28, 37 (1937) Hill v. State
and about 10 feet from where witness was standing when he saw Zoebel cut on the face.
Defendant was in front of Zoebel coming towards witness. As Zoebel was striking defendant
with the ramal, defendant turned around and cut Zoebel's face. After the trouble, witnessfollowed defendant west on Commercial row, but defendant was not in sight when witness
turned the corner at Virginia street. Witness proceeded south on Virginia street to Douglas
alley, but did not see defendant at first as he looked eastward in that alley. Witness started to
cross Douglas alley when he heard a couple of men say, There he goes. Witness then
looked down the alley again and saw defendant crossing to the side of the Bank Club.
Defendant walked out of the alley on to Center street and then crossed the alley northwards
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towards the place where the crowd was standing around Mr. Zoebel.
On redirect examination, Mr. East testified that although he did not see Mr. Walters at the
scene of the trouble, he might have been there because there were lots of people around there.
Zoebel followed Hill about 40 feet before collapsing on the sidewalk.
Jacob Sands, a resident of Reno for about twenty years, while standing at the front corner
of the Palace Club the morning of the trouble, happened to look to the south and sawdefendant and Zoebel kind of wrestling. He thought they were fooling. The next he saw,
defendant was walking toward him and Zoebel was kind of making weak efforts with a sort
of strap. As Zoebel came closer, he slumped over. Witness saw Zoebel strike defendant
about once or twice, just kind of weak efforts.
On cross-examination Mr. Sands said that Zoebel was making a few wild swings, which
kind of glanced off because defendant was holding up his elbow, trying to ward the blows
off a little. Witness did not notice defendant stop at any time. He kept on going, mumbling a
little to himself, and proceeded west on Commercial URZ
58 Nev. 28, 38 (1937) Hill v. State
row. When Zoebel was striking at defendant with the whip, just before collapsing, defendant
did not use a knife or strike him with anything. From the place where Zoebel struck defendant
the last time, to the front corner of the Palace Club, defendant did not talk to anybody. He was
just mumbling a little as he passed witness.
Dr. William L. Howell, who had practiced medicine and surgery in Nevada for twenty
years, and was county physician for Washoe County, performed an autopsy to determine the
cause of Zoebel's death. This was on the afternoon of the day of the killing. He discovered
eight lacerated wounds, some of which were on the scalp, face, neck, and shoulder. One stab
wound penetrated the left ventricle of the heart, resulting in a hemorrhage which filled thepericardium. There were other wounds on the body, including one in the abdomen. The cause
of death was compression of the heart, resulting from the hemorrhage. It would be possible,
said Dr. Howell, for a man stabbed in the heart as Zoebel was, to walk 40 feet before
collapsing and dying. Zoebel may have lived some minutes before death ensued. The wound
in the heart was caused by a cutting instrument, apparently a sharp one. The knife claimed by
the state to have been used in the stabbing would ordinarily be more apt to make the wounds
than the smaller knife found in defendant's clothes after the killing. The latter has a shorter
blade, and more dull, and not one that could be used with the same force and make the same
wounds. Zoebel was an average-sized man, thin, weighing about 160 pounds, at a rough
guess. One cross-examination Dr. Howell testified that any of the wounds could have beenmade by the smaller knife.
Lowell Nugent, funeral director, testified that when he took possession of the body at the
hospital, it was clothed, and he assisted in removing the clothing. It was searched, for
purposes of identification, and was found to contain some cigarette papers and matches, aSLHFHRIZUDSSLQJSDSHUDERXWHLJKWLQFKHVZLGHRQZKLFKZDVZULWWHQLQOHDGSHQFLO,
DPQRWDWWKHULYHUDQGDQRUGLQDU\VPDOOSRFNHWNQLIH
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58 Nev. 28, 39 (1937) Hill v. State
piece of wrapping paper about eight inches wide on which was written, in lead pencil, I am
not at the river, and an ordinary small pocket knife. The blades of this knife were closed. No
firearms were found.Lyle R. Stout, eleven years with Nevada Machinery & Electric Company, seller of
electrical merchandise at Reno, testified that in electrical business they use a stranded wire
gauge, and that he had had eleven years experience in the use of such gauges. Some of the
wire found at the defendant's premises was size 19. This wire is soft iron galvanized wire, and
is the same size and kind as that with which the blade of the longer knife was wired open.
The sharp side cutters used by electricians cut wire clean. Ordinary pliers, not sharp, leave a
kind of bend on the end of the wire where it is cut. The wire on the longer knife looked like it
might have been cut with some type of gas plier, because the ends were rather rough; not cut
sharp and clean; kind of broken off like something dull. Referring to the wire found at
defendant's place, of the same kind and size as that on the knife, witness stated that the endslooked like the wire had been cut with a cheap gas plier such as that found where defendant
liveda plier that bends and pinches the wire instead of cutting it sharp and clean. On
cross-examination Mr. Stout testified that the pliers found at defendant's place are a type
commonly used all over, and that might be found in pretty nearly any cabin or house in Reno.
Any cheap plier would make the same appearance in cutting the wire. Witness would not say
that the wire on the knife was cut from the other piece of wire in evidence, but only that it
was the same type of wire, and the same size.
Defendant testified that: He had been living in Reno the last ten years. He quit working in
mines when he was sixty-six years old. His health had been bad for several years, because of
stomach trouble. He was coming seventy years of age, and weighed 126 pounds. When
younger, he weighed 165. For the past year he had been ZRUNLQJRQJRYHUQPHQWUHOLHI
58 Nev. 28, 40 (1937) Hill v. State
working on government relief. Prior to May 12 he had been working at the university, at the
north end of Reno. He had known Zoebel for about ten years, and saw him occasionally.
Defendant left his home about 5:15 on the morning of May 12, 1936. He walked right up
town to the Wine House, where he used to go every morning when he was working to take a
rest. He left there by the back door about 6:30, and went east in Douglas alley, turning north
at Center street. As he turned the corner from the alley on to Center street, he saw Zoebel
walking south toward him, about 25 feet away, on the sidewalk along the side of the Palace
Club. When they were 3 or 4 feet from each other, Zoebel, without any warning, pulled the
ramal from behind his coat and began beating defendant on the head. At that time the ramal
looked like a blackjack to defendant. It was doubled up. Defendant thought he was in danger
of getting badly hurt, and believed it was necessary to defend himself. The attack came so
sudden he was mystified, stunned, did not know what to do. All he had to defend himself
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with was the penknife, so he pulled that out of his pocket and used it in self-defense, backing
away as he did so. The time during which he was cutting Zoebel was about a minute. He was
trying to get away, but Zoebel hung right on to him. He had no intention of killing the man
and felt sorry because the man was dead. He was never in trouble of this kind beforealways
tried to keep out of trouble. This was the sixth time Zoebel attacked him in the last eight
years. About six years before, when defendant had two broken ribs, Zoebel knocked himdown, beat him all over the head and part of the face with a rock. Since then he had attacked
defendant on several other occasions, but defendant had escaped without serious injury.
About five or six days before the final encounter, Zoebel shook his fist at defendant, and
defendant crossed to the other side of the street. It was always Zoebel who commenced the
trouble. He was a bigger and stronger man.
58 Nev. 28, 41 (1937) Hill v. State
Defendant was never looking for trouble. Defendant cleaned the blood from the blade of thepenknife with his fingers. He knew nothing whatever about the other knife; never saw it until
the preliminary examination. When the trouble happened, defendant had his lunch and was on
his way to work. He had no weaponsnever did. The penknife was all he had. He did not
expect to meet Zoebel there that morning; he was cornered and could not get away. He did
the only thing he could do under the circumstances. He was as innocent as a child. As to the
blood on the paper: Zoebel tried to get the knife away from him, and defendant cut himself.
The scar could be seen yet. He wiped the blood from h
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