nevada reports 1958 (74 nev.).pdf

74 Nev. 1, 1 (1958)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 74____________

74 Nev. 1, 1 (1958) Cantrell v. Lugaski

CLEO CANTRELL, Appellant, v. PETE LUGASKI, as City Marshal of the City of Fallon,Nevada, Respondent.

No. 4023

January 14, 1958. 320 P.2d 423.

Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.

Mandamus proceeding brought to compel issuance of certificate authorizing petitioner toobtain employment as a dealer of gambling games or as a bartender in Fallon. The lowercourt denied the relief sought, and an appeal was taken. The Supreme Court, Eather, J., heldthat evidence of arrests not culminating in convictions had been admissible upon issue as towhether petitioner had good moral character which Fallon ordinance made prerequisite toobtaining a certificate, and held that however slight probative value of proof of such arrestsmight be, it had been sufficient to demand explanation. Affirmed. (Rehearing denied February 5, 1958.)


Stewart & Horton, of Fallon, for Appellant.

Diehl & Recanzone, of Fallon, for Respondent.

1. Mandamus. Fact that Fallon ordinance, making good moral character a qualification for certificate necessary to obtainemployment as dealer of gambling games or bartender, also specified certain criminal convictions withinperiod of five years as disqualifying did not render evidence of other crimes inadmissible on moralcharacter issue.

2. Mandamus. In mandamus proceeding brought to compel issuance of certificate authorizing petitioner to obtainemployment as a dealer of gambling games or as a bartender in Fallon, evidence of arrests not culminatingin convictions was admissible upon issue as to whether petitioner had good moral character which Fallonordinance made prerequisite to obtaining of certificate; and however slight probative value of proof of sucharrests might be, it was sufficient to demand explanation.

OPINION

By the Court, Eather, J.:

This is an appeal from an order of the First Judicial District Court of the State of Nevada,denying a petition for a writ of mandate and vacating the alternative writ. Appellant's petition in the court below sought a writ compelling the respondent PeteLugaski, as city marshal of Fallon, to issue what is known as an employment certificateauthorizing the petitioner to obtain employment as a dealer of gambling games and as abartender. Pursuant to the provisions of Fallon's city ordinance No. 214 the marshal hadinvestigated petitioner's legal qualifications and had refused the employment certificate uponthe ground that petitioner did not possess good moral character. In the proceedings belowpetitioner contended that he did possess good moral character and that the marshal, therefore,had acted arbitrarily in refusing the certificate. Following hearing, the court below denied thewrit and this appeal was taken. Petitioner here contends that the court below erred inadmitting evidence of certain criminal convictions and


arrests as material and competent evidence upon the issue of petitioner's moral character. The ordinance in question provides as follows: Sec. 1 is devoted mainly to definitions.

Appellant comes within the definition of employees of gambling houses and within thedefinition of employees of other establishments where alcoholic beverages are sold at retailfor consumption on the premises. Sec. 2 declares the policy of the ordinance to the end that gambling establishments andestablishments where alcoholic beverages are sold, be licensed and controlled so as to betterprotect the public health, safety, morals, good order and general welfare of the inhabitants ofthe city. To such end the city marshal is ordered to investigate into the legal qualifications ofthe applicants for licenses and applicants for employment certificates. The following personsare declared to be not qualified or satisfactory to be granted an employment certificate: (a) A person who shall have been convicted within the past five years: 1. Of a felony or ofany crime which under the laws of this state would amount to a felony. 2. In this state orelsewhere, of any crime of which fraud or intent to defraud was an element. 3. Of larceny inany degree. 4. Of buying or receiving stolen property. 5. Of unlawful entry of a building. 6.Of unlawfully possessing or distributing narcotic drugs. 7. Of illegally using, carrying orpossessing a pistol or other dangerous weapon. (b) A person under the age of twenty-one years.

(c) A person who does not possess a good moral character. In the proceeding below petitioner tendered proof of good moral character. He was thenextensively cross-examined with references to brushes with the law. Over the objections ofhis attorney he admitted that from 1936 through January 1955 he had been arrested on 12occasions. In two instances he had been convicted of the crime for which he had beenarrested, in one case serving a sentence and in the other receiving suspended sentence. As to athird arrest he forfeited bail. As to the


remaining instances the disposition does not appear from his testimony. In some instances hewas not asked as to the disposition. In others he was asked, but did not recall. Two arrestswere directly involved with gambling activities. In one case the arrest was for unlawfulpossession of equipment for making gambling chips. Petitioner admitted possession of theequipment but denied its illegality, although the equipment had been impounded and neverreturned to him. In the second case he was charged with possessing cheating devices. Hisexplanation appears to admit possession. When asked if he was not arrested for possessingequipment for slugging slot machines he stated, They called it a cheating device but it wasnot for slugging slot machines. In five remaining cases, while admitting the fact of arrest, hecould not recall the crime with which he had been charged. The arrests occurred in variouscities in Nevada, California, Utah, Colorado, Washington and Idaho, after a brief residence ineach of such cities. There was no redirect examination. No explanation of the arrests or of their outcome wasgiven by the petitioner.

[Headnote 1] Petitioner first contends that under the provisions of Sec. 2(a) of the Fallon ordinance noevidence of criminal activity is material save evidence of convictions within the precedingfive years of the crimes there specified; that for this reason the testimony of the petitionerwith reference to criminal conviction and arrest was erroneously admitted. In many instancesthe arrests he admitted occurred more than five years prior to the date of his application anddid not deal with crimes of the character specified in Sec. 2(a). The fact that the ordinance has specified certain criminal convictions within the period offive years as disqualification does not render other evidence of crime or criminal activityimmaterial to the issue of the applicant's moral character. Such other criminal matters simplydo not conclusively result in disqualification. Clearly they must, however, be held to bearupon the


issue of moral character and thus be relevant considerations upon that question.

[Headnote 2] Petitioner next contends that evidence of arrests not shown to have culminated inconvictions is inadmissible upon the issue of moral character since such arrests amount to nomore than unestablished assertions of guilt and are as consistent with the fact of innocence aswith guilt. Upon this proposition, authority is remarkably scant. Petitioner first refers us to commentof Professor Wigmore upon the admissibility of evidence of arrests for purposes oftestimonial impeachment. 3 Wigmore on Evidence, 3d Ed. 545, sec. 980a. Cases oftestimonial impeachment are clearly distinguishable from the case at bar, however. In cases ofimpeachment the character of the witness sought to be impeached is a collateral issue whichcannot be permitted to be pursued to the point where confusion results. Limits upon the use ofextrinsic evidence for purposes of impeachment are, therefore, necessary as a matter ofpolicy. Furthermore, in the ordinary case of impeachment rebuttal of the accusations ofmisconduct is not available to the witness so accused. In the case at bar the sole issue beforethe court was that of the petitioner's moral character. The fact of misconduct was clearlypertinent. Rebuttal of accusations of misconduct was available to the petitioner. The only court decision upon this question which has been cited to us is the recent case ofSchware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. On certiorarito the Supreme Court of New Mexico, the Supreme Court of the United States reversed thestate court in its determination that an applicant for the bar had failed to show good moralcharacter. Among the state court's considerations was the fact of three arrests, none of whichhad culminated in indictment or conviction.

The supreme court did not hold evidence of the arrests inadmissible, however. It held themto be of very little, if any, probative value in showing that [the applicant]


has engaged in any misconduct. It concluded that the arrests were wholly insufficient tosupport a finding that Schware had bad moral character * * *. The court emphasized the factthat the arrests had been fully and persuasively explained by Schware in such a manner as toeliminate reflection upon his moral character. However slight the probative value of the fact of arrest might be, where the issue is goodmoral character the fact is sufficient to demand explanation such as was given in the Schwarecase. The petitioner cannot be said to have met his burden by standing mute in the face offormal accusation of misconduct. We conclude that it was not error to admit the evidence of arrests and that under thecircumstances of this case the evidence of convictions and arrests was sufficient to support adetermination that the applicant was not of good moral character. Questions regarding the nature of the marshal's action, the nature of the lower court'sconsideration of that action or of the propriety of the remedy here sought in the light of suchquestions, have not been raised by the parties and this court has given no consideration tosuch questions. Affirmed.

Badt, C. J., and Merrill, J., concur.

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74 Nev. 6, 6 (1958) Acoustics, Inc. v. Amer. Surety

ACOUSTICS, INC., a California Corporation, Appellant v. AMERICAN SURETYCOMPANY OF NEW YORK, a New York Corporation, Respondent.

No. 4027

January 20, 1958. 320 P.2d 626

Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,Department No. 1. Action by unpaid subcontractor against surety on contractor's bond. The lower court

entered order dismissing the complaint, and the plaintiff appealed. The Supreme !"!

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Court, Merrill, J., held that where bond provided that contractor (1) would faithfully performconstruction contract and (2) would indemnify owner for any damage arising out ofcontractor's nonperformance and (3) would reimburse owner for latter's expenses in event ofcontractor's default, and bond limited aggregate liability of surety to owner, lender, laborer, ormaterialman to stated penal sum, and construction contract requiring contractor to paysubcontractors was by reference made part of bond, the bond was not merely an undertakingfor indemnity, and unpaid subcontractor was such third party beneficiary of surety's promiseto pay subcontractors as to have right of action against surety. Reversed and remanded.

Morton Galane, of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

1. Contracts. Where bond provided that contractor (1) would faithfully perform construction contract and (2) wouldindemnify owner for any damage arising out of contractor's nonperformance and (3) would reimburseowner for latter's expenses in event of contractor's default, and bond limited aggregate liability of surety toowner, lender, laborer or materialman to stated penal sum, and construction contract requiring contractor topay subcontractors was by reference made part of bond, the bond was not merely an undertaking forindemnity, and unpaid subcontractor was such third party beneficiary of surety's promise to paysubcontractors as to have right of action against surety.

2. Contracts. Where a contract contains a promise for benefit of one not a party to contract, the third party beneficiaryhas a direct right of action against the promisor.

3. Principal and Surety. While words of condition are not, in form, words of promise, yet in cases of penal bonds they must be soconstrued, otherwise the sole and unlimited promise of the surety is payment of the penal sum.

4. Principal and Surety. A surety bond that is conditioned on full performance of his contract by the principal, will operate infavor of such third parties as the principal, by his contract with the promisee, undertakes to pay; the bondneed be no more specific.


5. Principal and Surety. The contract of a compensated surety should be interpreted liberally in the interest of the promisee andbeneficiaries, rather than strictly in favor of surety.

OPINION

By the Court, Merrill, J.:

[Headnote 1] This action arises out of a construction contract and the surety bond issued to the owner inconnection therewith. The action is brought upon the bond against the surety by an unpaidsubcontractor. Plaintiff's complaint was ordered dismissed by the trial court upon the groundthat the bond by its terms conferred no rights upon job creditors and was limited toindemnification of the owner. Upon this appeal by the plaintiff creditor the sole question iswhether the trial court erred in so construing the bond. The bond is entitled Contract Bond. It recites that the owner had entered into a contractwith the McGrath Construction Company of Las Vegas, Nevada for construction of ashopping center in Las Vegas and provides that that contract by specific reference is made apart hereof. The conditions of the surety's obligations are stated as follows: The conditionof this obligation is such that if the principal shall faithfully perform the contract on his part,and shall fully indemnify and save harmless the owner from all cost and damage which hemay suffer by reason of failure so to do, and shall fully reimburse and repay the owner alloutlay and expense which the owner may incur in making good any such default, then thisobligation shall be null and void, otherwise, it shall remain in full force and effect. A furthersignificant proviso contained in the bond is as follows: Further provided that the aggregateliability of the surety under this bond to owner, lender, laborer, or materialman, shall belimited to the penal sum herein fixed. By the construction contract which was by reference


made a part of the bond the contractor promised the owner that it would pay all valid bills ofsubcontractors. A combination of two well-recognized principles of law compels the conclusion that the

trial court erred in its construction of the bond.

[Headnote 2]First: Where a contract contains a promise for the benefit of one not a party to the contract,the third party beneficiary has a direct right of action against the promisor. Painter v. Kaiser,27 Nev. 421, 76 P. 747, 65 L.R.A. 672; Miliani v. Tognoni, 19 Nev. 133, 7 P. 279; Alcalda v.Morales, 3 Nev. 132; Ruhling v. Hackett, 1 Nev. 360.

[Headnote 3] Second: While words of condition are not, in form, words of promise, yet in cases of penalbonds they must be so construed. Otherwise the sole and unlimited promise of the surety ispayment of the penal sum. The conditions are therefore construed to be promises in the formof an undertaking. See Corbin, Contractors' Surety Bonds, 38 Yale L.J. 1, 13.

[Headnote 4] The surety, then, has by the terms of its bond expressly undertaken the obligations of thegeneral contractor in all respects. If the contractor fails to perform, the surety has promisedperformance. It has thus promised that it will pay the subcontractors. The subcontractor is athird-party beneficiary of the surety's promise. Corbin, supra, 38 Yale L.J. 11, states A suretybond that is conditioned on full performance of his contract by the principal, will operate infavor of such third parties as the principal, by his contract with the promisee, undertakes topay; the bond need be no more specific. This proposition is supported by a substantial bodyof authority. Cooke v. Luscombe, 132 Kan. 147, 294 P. 849; Barringer v. Fidelity & DepositCo. of Maryland, 161 So.C. 4, 159 S.E. 373; Indemnity Ins. Co. of North America v.Stamberger Co., 37 Ohio App. 236, 174 N.E. 629; Algonite Stone Manufacturing Companyv. Fidelity &' (()


& Deposit Company, 100 Kan. 28, 163 P. 1076, L.R.A. 1917 D, 722; Orinoco Supply Co. v.Shaw Bros. Lumber Co. et al., 160 N.C. 428, 76 S.E. 273, 42 L.R.A., N.S., 707. The surety contends (and the trial court held) that the nature of the bond read as a whole isthat of an indemnity bond. It contends that the promises flowing from the words of conditionmust be construed in this light; that both bond and contract were written for the protection ofthe owner and that the benefit to creditors is purely incidental and must be held limited tosuch protection as is necessary only to indemnify the owner. The nature of the bond cannot be said to be clearly set forth. Rather, it would appear to fallin a middle zone between two classes of bonds: those which expressly give creditors a directright of action against the surety and those which expressly limit the rights under the bond tothose of indemnification. We note in this bond that the condition of performance is notlimited (as is frequently the case) to performance of the construction work agreed to be

performed. On the contrary, the condition, without limitation, is the performance of thecontract. We note that the condition of performance is conjunctively rather than disjunctivelylinked to the conditions of indemnification and reimbursement. The surety's construction ofthe instrument requires us to change and to or. We note that in limiting rights under thebond to the penal sum fixed, the bond implies that those acquiring such rights include notonly owner and lender but also laborer and materialman. In short, the bond, if it was intendedto be limited to an undertaking for indemnification, is poorly drawn.

[Headnote 5] The responsibility for draftsmanship falls squarely upon the surety. If it had been intendedto limit the scope of the bond to indemnification it would have been an extremely simplematter to make this intention plain and to eliminate inconsistent expressions. The current ofauthority now is that the contract of a compensated surety is to be interpreted liberally in theinterest of the promisee and beneficiaries, rather than strictly in favor of the surety. Day v.Walton, 199 Tenn. 10, 281 S.W.2d *+,-).&/0"1,2*(#+#/2" "*-3456,*.5,7,, 7,."78*-45.&6


685; Knuth v. Fidelity & Casualty Co. of N.Y., 275 Wis. 603, 83 N.W.2d 126; Colonial OilCo. v. U. S. Guarantee Co., 56 F.Supp. 545, affirmed 5 Cir., 145 F.2d 496; U. S. Fidelity &Guarantee Co. v. Stark, 102 Ind.App. 222, 200 N.E. 489; See 50 Am.Jur. 1112, Suretyshipsec. 318. We conclude that since the limited nature of the instrument (for which the surety contends)does not appear with clarity, it cannot be permitted by implication to supply unexpressedlimitations upon the obligation of the surety. The promise of performance of the contractmust be accepted at face value. Reversed and remanded with instructions that the order of dismissal be set aside and forfurther proceedings.

Badt, C. J., and Eather, J., concur.

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74 Nev. 11, 11 (1958) Shira v. Cosgriff Neon Co.

ALBERT SHIRA, Doing Business Under the Name and Style of MT. ROSE MOTEL,Appellant, v. COSGRIFF NEON COMPANY, INC., and J. R. WARREN, Respondents.

No. 3931

January 21, 1958. 320 P.2d 426

Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.Maestretti, Judge, Department No. 2.

Action against motel purchaser for breach of contract relating to payments for rental andmaintenance of neon sign entered into between plaintiff and vendor of motel, the third partydefendant. The trial court entered judgment for plaintiff and in favor of vendor, and purchaserappealed. The Supreme Court, Merrill, J., held that evidence was insufficient to sustainfinding that contract was assumed by purchaser, but evidence did sustain finding that therewas no fraud by vendor. Judgment in favor of respondent Cosgriff Neon Company, Inc., reversed and matterremanded for new trial. Judgment in favor of respondent Warren modified.


George Lohse & Leonard T. Howard, of Reno, for Appellant.

John S. Halley, of Reno, for Respondent Cosgriff Neon Company, Inc.

Bible & McDonald and Robert H. Moore, of Reno, for Respondent J. R. Warren.

1. Bailment. In action against motel purchaser for breach of contract relating to payment for rental and maintenance ofneon sign previously entered into between plaintiff and vendor of motel, evidence was insufficient tosupport finding that purchaser had knowledge of agreement between plaintiff and vendor at time ofpurchasing motel and had assumed its terms.

2. Appeal and Error. Where action was brought to recover damages for breach of express contract and evidence wasinsufficient to support finding that defendant had assumed such express contract, but use to whichdefendant had put property might give rise to rights other than those dependent upon express contract, butno appropriate findings had been made with respect to such facts, case would be remanded for new trial.

3. Fraud. In third party action by purchaser of motel against vendor thereof, evidence supported finding that therewas no misrepresentation or concealment by vendor with respect to payments due under contracts for rentaland maintenance of neon signs.

4. Costs. Where recovery sought in third-party complaint was in excess of $1,000, allowance of attorney's fees wasnot authorized. NRS 18.010, subd. 2(a, b).

5. Costs.

Section of statute giving court discretion to make allowance of attorney's fees to prevailing party, in casesin which defendant does not seek recovery in excess of $1,000, has reference to cases in which affirmativerelief is sought by defendant. NRS 18.010, subd. 2(b).

OPINION


This is an action for damages for breach of contract. Judgment for the plaintiff below(respondent Cosgriff) was rendered by the trial court sitting without a jury. Upon this appealdefendant Shira as appellant contends


that there is no evidence from which the trial court could have concluded that he was boundby contract. The contract involved is in writing, designated as an electrical advertising agreement. Itrelates to rental and maintenance of a neon sign placed upon the premises of the Mt. RoseMotel in Sparks, Nevada. It is dated November 5, 1951, and its term is for 60 months at $30 amonth. It provides, in the event of breach, for acceleration of payment of the full amount duefor the full term. The contract was signed by respondent Cosgriff as owner of the sign and byWilliam R. Warren on behalf of the Mt. Rose Motel as user. William Warren is the son ofrespondent Warren, who was owner of the motel on November 5, 1951. The trial court found, That on December 1, 1951 the defendant, Albert Shira, purchasedsaid Mt. Rose Motel and the business conducted therein from third party defendant, J. R.Warren, with full knowledge of said electrical advertising agreement and all the terms andconditions thereof and thereupon assumed said agreement, and on December 13, 1951 thedefendant, Albert Shira, paid to plaintiff the sum of THIRTY ($30.00) DOLLARS,representing the payment due for the month of December, 1951 pursuant to said electricaladvertising agreement; that no further payments have been made by defendant Albert Shira orany other person, and there is due and owing to plaintiff by defendant Albert Shira the sum ofONE THOUSAND SIX HUNDRED EIGHTY ($1,680.00) DOLLARS. That on January 5, 1952, pursuant to the provisions of said electrical advertisingagreement, plaintiff notified defendant Albert Shira that the entire amount was then due andpayable, to-wit: ONE THOUSAND SIX HUNDRED EIGHTY ($1,680.00) DOLLARS, byreason of his failure to perform the provisions and conditions of said agreement. Judgmentagainst Shira was rendered accordingly.

[Headnote 1] An examination of the record discloses that there is no evidence to support the court'sfinding that appellant 5%

2


Shira had knowledge of the agreement between Cosgriff and Warren and had assumed itsterms. Both Warren and Shira testified that at the time of purchase Shira had no knowledge ofany written contract. Warren advised Shira that the sign was the property of Cosgriff and that$30 a month was payable for rental and maintenance. This was the extent of Shira'sunderstanding at the time of purchase. Never did Shira subsequently undertake any greaterobligation. Two weeks after sale he discovered the written contract. He immediately calledCosgriff and in the course of two conversations repudiated the contract. An offer andcounter-offer for outright sale of the sign were made, but neither was accepted by the otherparty. Shira notified Cosgriff to remove the sign. This Cosgriff failed to do. For 23 monthsShira used the sign. When maintenance or repair was required he provided it himself.

[Headnote 2] We conclude that the finding that the contract was assumed by Shira is without factualsupport and that judgment based upon breach of express contract must fall. The use to whichShira put the sign may have given rise to rights in Cosgriff other than those dependent uponexpress contract. Upon this point no determination has been made by the trial court and therecord is without appropriate findings of fact. In order that such determinations may be madea new trial is necessary. Upon Shira's appeal from judgment in favor of Cosgriff, judgment is reversed with costs tothe appellant and the matter remanded for new trial.

[Headnote 3] Shira has also appealed from the trial court's judgment in favor of Warren upon a thirdparty complaint against Warren filed by Shira. The complaint was based upon allegations ofmisrepresentation and concealment by Warren which the trial court found not to be true.There is support for the trial court's determinations in this respect and to this extent thejudgment must be affirmed.


Judgment against Shira in favor of Warren included an award of costs plus attorney fees inthe sum of $250. Upon this appeal Shira contends that the award of attorney fees wasunauthorized.

[Headnote 4] NRS 18.010 with reference to costs provides in part (subsection 2), In cases in which: (a)The plaintiff does not seek recovery in excess of $1,000; or (b) The defendant does not seek arecovery in excess of $1,000; the court may, in its discretion, make an allowance of attorneyfees to the prevailing party. The recovery sought by Shira against Warren in his third party complaint was in excess of$1,000. He sought (1) $1,000 damages suffered by himself; (2) that Warren be heldaccountable to Shira for such judgment as might be rendered against Shira in favor ofCosgriff. The recovery sought being in excess of $1,000, allowance of attorney fees was notauthorized.

[Headnote 5] Warren contends that since he himself did not seek any recovery he is entitled to attorneyfees under paragraph (b) as quoted. That portion of the subsection, however, has reference tocases in which affirmative relief is sought by the defendant. Upon Shira's appeal from judgment in favor of Warren, IT IS ORDERED that suchjudgment be modified to strike the allowance of attorney fees. As so modified, judgment isaffirmed with no costs allowed.


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74 Nev. 16, 16 (1958) Greenspun v. Gandolfo

H. M. GREENSPUN and W. R. McNINCH, Appellants, v. HONORABLE DON L.GANDOLFO as Justice of the Peace, Austin Township, County of Lander, State of Nevada,

Respondent.

No. 4033

January 23, 1958. 320 P.2d 628

Appeal from judgment of Eighth Judicial District Court, Clark County; Ryland G. Taylor,Judge, Department No. 3.

Certiorari proceeding to review action of a justice of the peace in issuing a warrant ofarrest charging present petitioners with the crime of blackmail. The lower court grantedmotion to quash and denied the petition, and the petitioners appealed. The Supreme Court,Badt, C. J., held that warrant of arrest reciting that complaint had been filed accusing presentpetitioners of committing the crime of blackmail substantially complied with allrequirements of statute, even if the word blackmail at head of section defining offense was

not contained in original enrolled bill passed by legislature and was simply statute compiler'scatchword, as against petitioners' contention that warrant designated no crime defined bylegislature. Affirmed.

Morton Galane, of Las Vegas, for Appellants.

George G. Holden, District Attorney, Lander County, for Respondent.

1. Criminal Law. Warrant of arrest reciting that a complaint had been filed accusing present petitioners of committing thecrime of blackmail substantially complied with all requirements of statute, even if the word blackmail athead of section defining offense was not contained in original enrolled bill passed by Legislature and wassimply statute compiler's catchword, as against petitioners' contention that warrant designated no crimedefined by Legislature. NCL 1929, 10423, 10730, 10731, 10733, 10734.


2. Threats. Though the word blackmail may not be a word of art, it is a word of common parlance and popularusage, and is often defined as synonymous with extortion. NCL 1929, 10423.

3. Criminal Law. A warrant of arrest must charge commission of an offense in words adequate to disclose what crime ismeant.

4. Criminal Law. The primary purpose of the recitals in warrant of arrest is to authorize arresting officer to make the arrest,to the end that the accused may be brought before the court.

OPINION

By the Court, Badt, C. J.:

Appellants sought a writ of certiorari from the district court of the Eighth Judicial District,Clark County, to review the action of respondent in issuing in Austin Township, County ofLander, a warrant of arrest charging appellants with the crime of blackmail, alleging thatthe warrant of arrest was legally insufficient and that the petitioners had been illegallyarrested in Clark County. After a hearing on the petition for the writ and on the motion ofrespondent to quash the writ and upon respondent's demurrer to the petition, the district courtgranted the motion to quash and denied the petition. Appellants contend that the state legislature has never designated blackmail as acriminal offense and that, therefore, the warrant of arrest issued by the justice of the peacedesignating the offense charged as blackmail deprives them of liberty, without due processof law, in violation of the Fourteenth Amendment to the United States Constitution. We have

concluded that the warrant of arrest, as issued, complied substantially with the statutoryrequirements, that the arrest made thereunder did not deprive appellants of liberty without dueprocess and that the judgment of the district court must, accordingly, be affirmed.


The section of An Act concerning crime and punishments * * *, approved March 17,1911, appears in NCL 1929 1 in the following form: 10423. Blackmail. 474. Every person who, with intent thereby to extort or gain anymoney or other property or to compel or induce another to make, subscribe, execute, alter ordestroy any valuable security or instrument or writing affecting or intended to affect anycause of action or defense, or any property, or to influence the action of any public officer, orto do or abet or procure any illegal or wrongful act, shall threaten directly or indirectly1. Toaccuse any person of a crime; or, 2. To do an injury to any person or to any property; or, 3. Topublish or connive at publishing any libel; or, 4. To expose or impute to any person anydeformity or disgrace; or, 5. To expose any secret, Shall be punished by imprisonment in the state prison for not more than five years or byimprisonment in the county jail for not more than one year, or by a fine of not more than onethousand dollars, or by both fine and imprisonment. The section appears in precisely thesame language as sec. 6739, Revised Laws of Nevada, 1912. The complaint filed with the respondent justice of the peace is not attacked by appellantsand does not appear in the record on appeal. The warrant of arrest issued by respondent wasaddressed to any sheriff, constable, marshal, policeman or other peace officer of the state, wasproperly dated and signed with the name and place of office of respondent, recited the filingof a complaint under oath charging appellants with the crime of blackmail andcommanding the officer to arrest them. Bail was fixed in the sum of $10,000 each. Thewarrant was upon a printed form in general use. Section 10730, NCL 1929, requires the magistrate to

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1 The complaint was filed and the warrant issued January 19, 1957. Nevada Revised Statutes became

effective January 25, 1957, Stats. 1957, Chap. 2, p. 1. The statutes under consideration are, accordingly, thoseappearing in NCL 1929. The section now appears as NRS 205.320.


issue the warrant if he is satisfied that the offense complained of has been committed and thatthere is reasonable ground to believe that the defendant has committed it. Section 10731,NCL 1929, defines the warrant as an order in writing signed by the magistrate commandingthe arrest which may be substantially in the following form: County of ................. The Stateof Nevada, to any sheriff, constable, marshal, policeman, or peace officer in this state: Acomplaint, upon oath, has been this day laid before me by A. B., that the crime of (designateit) has been committed, and accusing C. D. thereof; you are therefore commanded forthwithto arrest the above-named C. D. and bring him before me at (name the place), or in case ofmy absence or inability to act, before the nearest or most accessible magistrate in thiscounty. Section 10733 reads as follows: 10733. Warrant to specify, What. 85. The warrantmust specify the name of the defendant; if it be unknown to the magistrate, the defendant maybe designated therein by any name. It must also state the date of its issuance, and the county,city, or town where it was issued, and be signed by the magistrate with his name of office. Itis to be noted that the last-mentioned section is the section specifically designating what mustbe specified in the warrantthe defendant's name, the date of issuance, the county, city ortown of issuance, the signature of the magistrate and the name of his office. Section 10734, NCL 1929, adds that it must be directed to a peace officer. Section 10731,NCL 1929, as heretofore noted, gives the form that may be substantially followed.

[Headnotes 1, 2] We turn then to the contention of appellants that the warrant of arrest reciting that acomplaint had been filed accusing appellants of committing the crime of blackmaildesignated no crime ever defined by the legislature; that the word blackmail appearing atthe head of the section was simply the compiler's catchword and


was without significance. No purpose would be served by analyzing appellants' earnest,lengthy and learned discussion as to the necessary recitals in a warrant of arrest in order tosatisfy constitutional requirements. We note again that the complaint is not attacked. We arefully satisfied that the warrant of arrest substantially complied with all requirements of therelevant sections of the code whether or not the word blackmail at the head of the sectionquoted was or was not contained in the original enrolled bill passed by the legislature. 2Though the word blackmail may not be a word of art, it is a word of common parlance andpopular usage, often defined as synonymous with extortion, and has appeared in our codes for45 years. During all of that period it was indexed in the Revised Laws of 1912 and in theCompiled Laws of 1929 with reference to the section in question. The former followed thelegislative session of 1911 and the statute therein passed, Stats. 1911, 100, providing for theomission of publication of the Crimes and Punishments Act in the 1911 session laws but for

its inclusion in the Revised Laws of 1912, whose compilation was authorized in 1909 througha code commission comprising the justices of the Supreme Court. Similar proceedings werefollowed in the Compiled Laws of 1929.

[Headnotes 3, 4] An interesting article on The Law of Arrest, by Professor Rollin M. Perkins, appears inVol. XXV, No. 2, Iowa Law Review, January 1940, in which the author recites The warrantmust charge the commission of an offense in words adequate to disclose what crime is meant * * *, citing Spear v. State, 120 Ala. 351, 25 So. 46, 48. The case cited refers to numerousexamples in which the warrant was held to be sufficient and holds 9:::

9!

____________________

2 Much space is devoted by the briefs to the unsuccessful attempt to locate the original enrolled bill required

to be kept in the files of the secretary of state, to the discovery in the secretary's files of what purported to be theoriginal engrossed bill (which did contain the catchword blackmail), and to the journal of the statutoryproceedings of 1911 reciting the comparison of the engrossed bill with the enrolled bill, etc.


that although the words used would concededly be insufficient to support an indictment, yetthe same strictness * * * is not required in a warrant or writ of arrest, and that the offense(of carrying a concealed pistol) was sufficiently designated. The primary purpose of therecitals in the warrant is to authorize the arresting officer to make the arrest, to the end thatthe accused may be brought before the court. 22 C.J.S. 467-8, Criminal Law, sec. 316. Evenin testing the sufficiency of the complaint, it was said in State v. McKiernan, 17 Nev. 224, 30P. 831, 832, The technical exactness which existed under the rules of the common law hasbeen superseded by statutory provisions, and it is now sufficient if the offense is clearly anddistinctly set forth in ordinary and concise language * * * in such a manner as to enable aperson of common understanding to know what is intended.' This language was approved inEx Parte Esden, 55 Nev. 169, 28 P.2d 132. In that case the complaint was attacked for thereason that it lacked an essential element of the crime of blackmail, namely, an allegationof the intent with which the letter in question was written. The court, after quoting thelanguage used in the McKiernan case, said, Viewed in this way the information is notdeficient in stating the public offense of blackmail. Although the specific point hereraisedthe lack of a statutory crime of blackmailcannot be said to have been the precisepoint determined in the Esden case, we cannot escape the force of the language used. We feeljustified in drawing from it support for our conclusion that a person of commonunderstanding would know what was intended by the charge of the crime of blackmail.

Section 856 of the New York Penal Code, 39 McKinney's Cons. Laws of N.Y. 465, c. 40,is to all intents and purposes, so far as concerns the point discussed, the same as sec. 10423NCL 1929, above quoted in full. It too contains the catchword blackmail, but the sectiondoes not contain the word, much less define it. Yet it was said in Bianchi v. Leon, 138App.Div. 215, 122 N.Y.Supp. 1004, 1012, that the obtaining of a settlement under a

%;;+,*+,1+,+:::


threat of criminal prosecution is blackmail, as defined by 856, 857 and 858 * * *.Sections 857 and 858 are likewise silent. See also Guenther v. Ridgway Co., 70 App.Div.725, 156 N.Y.Supp. 534. In support of the dismissal of the proceedings respondent contends (1) that his issuance ofthe warrant of arrest was a ministerial act not reviewable by certiorari, NCL 1929, sec. 9231;(2) that appellants had other plain, speedy and adequate remedies; (3) that the venue of thecertiorari proceedings lay not in Clark County, where appellants were arrested, but in LanderCounty, as the jurisdiction inquired into was that of the respondent justice of the peace ofAustin Township in Lander County. (4) It is further suggested that under NCL 1929, sec.10733, supra, the Nevada statute does not require that any crime or offense be specified in thewarrant. Although these contentions raise interesting and possibly difficult questions, we donot determine or consider any of them. Affirmed.

Eather and Merrill, JJ., concur.

____________

74 Nev. 22, 22 (1958) Schulze v. Roop

ROBERT O. SCHULZE, Appellant, v. CLIFFORDROOP, Respondent.

No. 4079

January 31, 1958. 320 P.2d 1104

Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,Department No. 2.

Respondent moved to dismiss on ground that appeal was not taken within time prescribed.The Supreme Court held that where it was conceded that notice of appeal was not filed untilthe 32d day, appeal was not taken within time provided by rule prescribing that appeal mustbe taken within 30 days from service of

74 Nev. 22, 24 (1958) Schulze v. Roop

Saturday, October 19, 1957, the office of the county clerk of Clark County was open forbusiness.

Appeal dismissed.

____________

74 Nev. 24, 24 (1958) Las Vegas-Tonopah-Reno Stage Line v. Burleson

LAS VEGAS-TONOPAH-RENO STAGE LINE, INC., Appellant, v. WILLIAM O.BURLESON, Respondent.

No. 4024

February 5, 1958. 320 P.2d 1104

Appeal from the Eighth Judicial District Court, Clark County; Gordon W. Rice, PresidingJudge, Department No. 3.

Passenger's action against common carrier for value of luggage lost through negligence ofcarrier in course of intrastate trip. The trial court entered judgment for passenger and carrierappealed. The Supreme Court, Eather, J., held that carrier could not, by provisions in itsschedule of rates and charges, limit its liability for loss of luggage through negligence. Affirmed with costs.

McNamee & McNamee, of Las Vegas, for Appellant.

Toy R. Gregory, of Las Vegas, for Respondent.

1. Carriers. Common carrier could not, by provisions in its schedule of rates and charges, limit its liability for loss ofpassenger's baggage in intrastate trip through its negligence. NRS 704.070, 704.080.

2. Carriers. Re-enactment of statutes requiring the filing with Public Service Commission of schedules by publicutilities and posting of such schedules in the utilities' offices did not accomplish any change in lawproviding that although a common carrier may limit its liability as insurer to a fixed amount in absence ofadditional compensation, such limitation does not apply for losses due to negligence of carrier. NRS704.070, 704.080.

3. Carriers.

Limitation of liability for loss of intrastate passenger's luggage through carrier's negligence which isfounded upon unilateral actions of carrier short of contract cannot stand.


OPINION


Appellant, a common carrier, has taken this appeal from judgment rendered against it forthe value of a passenger's luggage lost through negligence of the carrier in the course of anintrastate trip from Reno to Las Vegas. The sole question before us is whether, under the lawsof this state, the carrier can, by so providing in its schedule of rates and charges, limit itsliability for loss through its negligence. NRS 704.070 provides for the filing with the public service commission of Nevada ofschedules by public utilities showing all rates, tolls and charges which it has established * ** for any service performed * * *. NRS 704.080 provides for posting in the utility's officeand stations of so much of the schedule as the commission shall deem necessary for the useof the public.

[Headnote 1] At the time of the transactions here involved appellant had filed with the commission aschedule which provided that its baggage liability was limited to $25 unless the ownerdeclared a higher value and paid an increased rate. A sign posted in its Reno bus stationadvised the public of this limitation upon its liability. Respondent, traveling from Reno to LasVegas on appellant's line, checked his baggage without any declaration of value in excess of$25. The baggage was lost through the negligence of the carrier. The court below allowedproof of its actual value and granted judgment for $300. Appellant contends that by its havingcomplied with the cited statutory provisions it has effectively limited its liability for negligentloss to $25. Upon this point we find two cases of this court controlling: Zetler v. Tonopah and G. R. R.Co., 35 Nev. 381, 129 P. 299, L.R.A. 1916A, 1270, and Southern Pacific Co. v. Haug, 43Nev. 102, 182 P. 92. In these cases it is clearly held that although a common carrier may,pursuant to law, limit its liability as insurer to a fixed


amount in absence of additional compensation, such limitation shall not apply to cases wherethe loss is due to negligence of the carrier, even though there be a contract with the ownerproviding for such limitation. Appellant contends that for two reasons these decisions should not be held controlling inthis case.

[Headnote 2] First: The source of the cited NRS sections is the Public Service Commission Act of 1919which was not the law under which the Zetler and Haug cases were decided. Appellantcontends that the 1919 act has superseded the earlier law. The controlling cases were decidedunder the provisions of the Railroad Act of 1907, 1907 Stats. of Nevada, p. 73, chap. 44.Section 4 of that act to all intents and purposes is identical with the pertinent provisions ofNRS. The reenactment of these provisions in 1919 did not in any respect accomplish anychange in the law as announced in the Zetler and Haug cases.

[Headnote 3] Second: Appellant contends that these were cases in which the limitation was sought to beaccomplished by contract and were not concerned with a limitation accomplished by thetaking of legally prescribed steps for the fixing of rates and charges. There is no merit in thiscontention. If the provisions of sec. 4 of the Railroad Act of 1907, properly construed, couldbe said to have permitted such limitation of liability, a contract to such effect could hardlyhave been held contrary to public policy. If a contractual limitation of liability is contrary topublic policy, a fortiori a limitation cannot stand which is founded upon unilateral actions ofthe carrier short of contract. Affirmed with costs.


____________

74 Nev. 27, 27 (1958) Papa v. Vacchina

AURELIO PAPA and DAVID DOTTA, Appellants, v. THELMA VACCHINA and THYRASAVAGE, Respondents.

No. 4028

February 6, 1958. 321 P.2d 245.

Appeal from judgment of the Fourth Judicial District Court, Elko County, Taylor H.Wines, Judge.

Suit for foreclosure of lien upon real property wherein mortgagees claimed adverse interestin property. The trial court entered judgment to effect that plaintiffs had priority, andmortgagees appealed. The Supreme Court, Merrill, J., held that recording of instrumentproviding that if husband survived wife he would pay sums to wife's daughters as soon as hewas able to reduce joint tenancy property of husband and wife to cash, in miscellaneousrecords rather than in mortgage records was proper. Affirmed. (Rehearing denied March 5, 1958.)

Orville R. Wilson and Milton J. Reinhart, of Elko, for Appellants.

Springmeyer and Thompson, of Reno, for Respondents.

1. Husband and Wife; Wills.

Under agreement providing that if husband survived wife he would pay sum to wife's daughters as soonas he was able to reduce joint tenancy property of husband and wife to cash, husband's surviving wife wasmerely condition precedent to his duty to discharge obligation, husband possessed no right to unilateralrevocation of agreement, vesting of enforceable right was not postponed until death of husband, agreementwas not testamentary in character and was not void for absence of formal requisites of will.

2. Liens. Determination of question whether agreement by husband to pay sum to wife's daughters from sale ofjoint tenancy property of husband and wife if he survived wife placed burden upon estate of survivorresulting in converting joint tenancy into tenancy in common had no effect upon priority of


claim by daughters, who after death of wife sought to foreclose lien, and claim by mortgagee where allparties claimed through husband.

3. Records. Where character of instrument is not readily apparent, rights of parties to it should not be made to dependupon ability of recorder to determine its true character.

4. Records. Recording of instrument providing that if husband survived wife he would pay sums to wife's daughtersas soon as he was able to reduce joint tenancy property of husband and wife to cash in miscellaneousrecords rather than in mortgage records was proper. NRS 247.120, subd. 1 (a).

5. Appeal and Error. Where, in suit for foreclosure of lien, mortgagees claimed interest in property adverse to lienholders andalleged that sums advanced by them for taxes, fire insurance premiums and plumbing services wereadvanced under terms of mortgage and advances were so treated by trial court, mortgagees were notentitled on appeal to contend, for the first time, that they were entitled to priority upon sums advanced onground that advances were for purpose of preservation of estate.

6. Appeal and Error. Appellants would not be heard for first time on appeal to contend that trial court erred in adopting theoryof recovery which they themselves had urged upon trial court.

OPINION


This is a suit for foreclosure of a lien upon real property located in the City of Elko,Nevada, brought by respondents as plaintiffs. Appellants as mortgagees claim an interest inthe property adverse to respondents. The issue is as to the priority of the respective interests.The trial court held respondents to have priority. From judgment to this effect the appeal istaken. Respondents' lien is founded upon a written agreement between W. M. Weathers and EvaWeathers, his wife, dated October 22, 1947. The agreement recites the parties' ownership injoint tenancy of the real property here involved and provides: The husband promises and agrees that in the event the wife should predecease him and hebecome the survivor of the said joint tenancy in and to the above described property, he willpay to Thelma Vacchina and =5>#,((


Thyra Savage, daughters of the said wife, each, the sum of $3,500 as soon after the death ofthe said wife as he is able to reduce the said property to cash. It is particularly agreed to and understood that in the event the husband predeceases thesaid wife and the said wife becomes the survivor of the said joint tenancy, then thisagreement shall terminate and be of no further force and effect. The husband agrees that in the event he becomes the survivor of the said joint tenancy,that the payments herein provided for to be paid by him shall be a lien against the saidpremises, and binding upon his heirs, executors, administrators and assigns. Mrs. Weathers died October 11, 1952 and later that month the agreement was recorded inthe office of the county recorder of Elko County under Miscellaneous Records. In February,1953 the district court of Elko County by order terminated the joint tenancy and confirmedtitle in W. M. Weathers as survivor. Subsequently Weathers executed in favor of appellantsthe mortgages upon which they now rely. The trial court held respondents to have a valid lien against the property in question with apriority of October, 1952. Upon five separate grounds appellants assert error and contend thatrespondents' lien is ineffectual as against them.

[Headnote 1]

First: Appellants contend that the agreement upon which respondents' lien is foundedconstitutes a testamentary disposition of property and, since it lacks the formal requisites of awill, is void. Two elements of a testamentary disposition are lacking, however. Theagreement is not ambulatory. It was a simple contract supported by consideration on bothsides. That the husband should survive his wife was merely a condition precedent to his dutyto discharge his obligation. He possessed no right to unilateral revocation of the agreement.Furthermore the vesting of enforceable rights was not postponed until the death of theobligor, Mr. Weathers. The event which was the condition precedent to his obligation toperform was not his death, but that of his 9?


wife. If the instrument creates a right in the promisee before the death of the testator, it is acontract. In Re Howe's Estate, 31 Cal.2d 395, 189 P.2d 5, 7, 1 A.L.R.2d 1171. Theconditional obligation became irrevocably binding upon Mr. Weathers during his lifetime andwas not limited in its operation to property which he might leave on his death. Theagreement, then, was not testamentary in character.

[Headnote 2] Second: Appellant contends that the agreement placed a burden upon the estate of thesurvivor and that this resulted in so changing the nature of his estate that the joint tenancywas destroyed and converted into a tenancy in common. This contention is vigorouslyopposed by respondents. We make no determination upon the issue, however. Such adetermination could have no effect upon the rights of the parties to this appeal as betweenthemselves. Whether Weathers' estate at the time of his wife's death was that of a survivingjoint tenant or was the undivided one half interest of a tenant in common, the question ofpriorities remains, since all interested parties claim through Weathers, whatever his estatemay have been. Appellants, then, are not aggrieved by any asserted error in this respect. Third: Appellants contend that the recording and indexing of the agreement underMiscellaneous Records was insufficient to give them notice of the claim of lien. Toconstitute proper recording, they claim, it should have been recorded and indexed in the bookand index provided to meet the requirements of NRS 247.120, 1 (a): Deeds, grants, transfersand mortgages of real estate.

[Headnote 3] The instrument is not entitled mortgage and is not in the usual form of mortgageinstruments. It bears no entitlement and describes itself simply as an agreement. It cannotbe said that its nature in the creation of a lien against the premises is so clearly that of amortgage as to require its recordation in that manner.


Courts should not be overtechnical in these matters where the instrument is complex orotherwise difficult to classify. Where the character of the instrument is not readily apparentthe rights of the parties to it should not be made to depend upon the ability of the recorder todetermine its true character. Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15L.R.A. (N.S.) 359. Stephen v. Patterson, 21 Ariz. 308, 188 P. 131, 132, dealt with a written agreement to pay$1,250 out of the first $5,000 received from sale of certain property. It provided, a speciallien is hereby created on said property to secure payment of this obligation. It was recordedin the book entitled, Miscellaneous. The court held such recording to be proper, stating, Itis not in the usual or ordinary form of a mortgage. Only such instruments as are mortgages bytheir express terms are required to be recorded in separate books, denominated Mortgages ofReal Property.'

[Headnote 4] We conclude that the recording of the agreement in Miscellaneous Records was proper. Fourth: Respondents contend that in any event they are entitled to priority upon certainsums advanced by them for taxes, fire insurance premiums and plumbing service whichadvances were for the purpose of preservation of the estate.

[Headnotes 5, 6] In the action below, however, recovery of these sums was not sought upon this basis. Itwas not contended that they were entitled to an independent priority upon the theory ofpreservation of the estate. It was alleged by appellants that these sums were advanced by themunder the terms of their mortgages to the effect that such mortgage should be security for allmoneys becoming due from the mortgagor to them from any cause. The advances were sotreated by the trial court. They were given the same priority as the original mortgage debt, incomplete accordance with the appellants' contention. Appellants will not now be heard for thefirst time to


contend that the trial court erred in adopting the theory of recovery which they themselveshad urged upon the court. Finally appellants contend that respondents should be barred by laches from asserting theirlien rights. We fail to see how prompter action would have affected appellants' rights unless

suit had been brought prior to the date of their mortgages and their attention had in thismanner been directed to respondents' claims. However there certainly was no occasion forrespondents to resort to foreclosure upon their security until it had become apparent thatWeathers did not propose to comply with his obligation as soon as he is able to reduce saidproperty to cash. There is nothing in the record to indicate that earlier action should havebeen taken. Accordingly we feel that there is no merit in this contention. Affirmed.


____________

74 Nev. 32, 32 (1958) Papagni v. Purdue

CARLO PAPAGNI and ANNA PAPAGNI, Husband and Wife, Appellants, v. ALBERT H.PURDUE, Respondent.

No. 4014

February 11, 1958. 321 P.2d 252

Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,Department No. 2. Action wherein the trial court rendered summary judgment for defendant, and the plaintiffappealed. The Supreme Court, Eather, J., held that tenant's complaint against landlord forinjuries sustained in fall down defective steps was not subject to claimed infirmity ofdisclosing as a matter of law that tenant had assumed risk or had been contributorilynegligent. Reversed and remanded.

Wanderer and Perry, of Las Vegas, for Appellants.


McNamee and McNamee, of Las Vegas, for Respondent.

1. Landlord and Tenant. Tenant could not be charged with contributory negligence merely because he knew of step defect whichresulted in his injury and nevertheless used stairs, and it would have to additionally appear that risk he took

was not a reasonable one.2. Landlord and Tenant.

Tenant could not be charged with assuming risk merely because he knew of step defect which caused hisinjury and nevertheless used stairs, and before he could be charged with assumption of risk it would have toadditionally appear that he had appreciated nature of risk involved.

3. Landlord and Tenant. Tenant's complaint against landlord, for injuries sustained in fall down defective steps, was not subject toclaimed infirmity of disclosing as a matter of law that tenant had assumed risk or had been contributorilynegligent.

OPINION


This is an appeal taken by the plaintiff below from summary judgment in favor of thedefendant in an action for injuries resulting from negligence. The injuries resulted from a fallupon a stairway which, it was alleged, defendant had negligently failed to repair. In support of the judgment defendant contends that the complaint of the plaintiff showsupon its face that plaintiff had either assumed the risk which the defective stairway created orhad been guilty of contributory negligence. Defendant concedes that if such is not the casesummary judgment was not proper. The sole question upon this appeal, then, is whether itmay be said that assumption of risk or contributory negligence conclusively appears as amatter of law from the allegations of the complaint; or whether it may be said that questionsconcerning such defenses remain for the court or jury. The complaint alleges that plaintiff leased a dwelling house from defendant for one month.It then proceeds: That the usual place of egress from said house to the


yard thereof was down certain steps on the side of the house leading to the ground. That at thetime of said hiring and leasing from defendant, defendant agreed to repair said steps on theside of the house, which steps were then broken and uneven and which were dangerous toplaintiff's use. That defendant, although often requested to repair the same and agreeing so todo, failed and neglected to make the necessary repairs and carelessly and negligently allowedthe said stairs to remain in a dangerous condition. It is then alleged that plaintiff, after thelapse of three months, while using said stairs, tripped and fell as a result of defendantcarelessly and negligently allowing the said stairs to remain in said dangerous condition.

[Headnotes 1, 2] It is clear that plaintiff was aware of the defect which defendant had agreed to repair and ofthe fact that danger (in some degree) resulted from failure to repair and that she had used the

stairs with such knowledge. More is necessary, however, if contributory negligence orassumption of risk is to follow. If reliance is upon contributory negligence it must appear that the risk which plaintiffknowingly took was not, under the circumstances, a reasonable one to take; that the apparentdanger was such that a reasonably prudent person would not have undertaken the risk of usingthe stairs. Am.Jur. V. 38, Negligence, secs. 182, 184, pp. 859-862. If reliance is upon assumption of risk, it must appear not only that the condition wasrecognized as dangerous, but also that plaintiff appreciated the nature of the risk involved.The California Supreme Court considered this problem in the case of Hawk v. City ofNewport Beach, 46 Cal.2d 213, 293 P.2d 48, 51. The court there said that the plaintiff did notassume the risk of injury when he dived from a rock into water which he knew was shallow,because although he knew that such an act was dangerous, it cannot be said as a matter oflaw that he appreciated the magnitude of that danger. * * * The @%A%

%


elements of [assumption of risk] are a person's voluntary acceptance of a risk and anappreciation of the magnitude of that risk. Other courts have expressed the same propositioncouched in slightly different terms. There is involved in the question of assumption of risknot only the question of knowledge, but a reasonable opportunity to ascertain the nature of therisk, and also an appreciation of the risk. York v. Chicago M. & St. P. Ry. Co., 184 Wis.110, 198 N.W. 377, 381. Similarly, The plaintiff is not required to look for danger, but isheld to assume the risks only when the danger is so apparent that one who owes no duty toinspect was bound to discover it; but that is ordinarily a question of fact for the jury. As toappreciation of risk, as distinguished from knowledge of danger, the question is: Did theservant understand the risk, or, by the exercise of ordinary observation, ought he to haveunderstood the risk, to which he was exposed by the dangerous situation? Rase v.Minneapolis St. P. & S. Ste. M. R. Co., 107 Minn. 260, 120 N.W. 360, 367, 21 L.R.A. (N.S.)138, 149. Further, Assumption of risk is a defense, but it rests upon the intelligentacquiescence and knowledge of the danger and appreciation of the risk naturally andordinarily incident to the employment, or arising from a particular situation in which the workis done. McClain v. Charleston & W. C. Ry. Co., 191 S.C. 332, 4 S.E.2d 280. In 35 Cal.Jur.814, Negligence, sec. 267, the distinction is made between assumption of risk andcontributory negligence. It is stated there that assumption of risk is founded on the theory ofconsent, with two main requirements: (1) Voluntary exposure to danger, and (2) Actualknowledge of the risk assumed. A risk can be said to have been voluntarily assumed by aperson only if it was known to him and he fully appreciated the danger. Ibid. at 822.

[Headnote 3]

These necessary factual elements of the defenses in question cannot be said to have beenestablished by the allegations of the complaint. It cannot be said that contributory negligenceor assumption of risk conclusively


appear as a matter of law. Issues thus remain for the court or jury. Summary judgment, then,was not proper. Reversed and remanded with instructions that summary judgment be set aside, and forfurther proceedings.


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74 Nev. 36, 36 (1958) Lockitch v. Boyer

REUBEN J. LOCKITCH, M.D., Appellant, v. HAROLD L. BOYER, M.D., RICHARD H.LAUB, M.D., and CHESTER C. LOCKWOOD, M.D., Respondents.

No. 3970

February 11, 1958. 321 P.2d 254

Appeal from summary judgment of the Eighth Judicial District Court, Clark County; FrankMcNamee, Judge, Department No. 1.

Action by doctor against other doctors for libelous defamation of character arising out ofalleged participation in publication of his suspension by board of trustees as member ofmedical staff of hospital. From summary judgment entered by the trial court in favor of thedefendants, the plaintiff appealed. The Supreme Court, Badt, C. J., held that affidavit inopposition to defendants' motion for summary judgment was insufficient to raise a genuineissue as to defendants' participation in the publication and motion for summary judgment wasproperly granted. Affirmed.

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

Goldwater and Singleton, of Las Vegas, for Respondents Boyer and Lockwood.

Jones, Wiener and Jones, of Las Vegas, for Respondent Laub.


Judgment. In action by doctor against other doctors for libelous defamation of character arising out of allegedparticipation in publication of his suspension by board of trustees as member of medical staff of hospital,affidavit in opposition to defendants' motion for summary judgment was insufficient to raise a genuineissue as to defendants' participation and motion of summary judgment was properly granted. Rules ofCivil Procedure, rule 56.

OPINION

By the Court, Badt, C. J.:

This is an appeal from a summary judgment entered in favor of respondents, defendantsbelow, and against appellant, plaintiff below. The summary judgment was proper and must beaffirmed. Plaintiff's action was for damages for libelous defamation of character and, in the words ofappellant, grew out of an unauthorized suspension of plaintiff as a member of the medicalstaff of Southern Nevada Memorial Hospital, the damage claimed [being] for participation inthe publication of what plaintiff claims to be libelous and defamatory, [although] the act ofsuspension * * * was committed actually by the board of trustees of the hospital. The publication appearing in the Las Vegas Review Journal of August 5, 1954, was asfollows: A special meeting of the board of hospital trustees was held last night at whichseveral members of the executive committee of the medical staff were present. Following a review of the activities of Dr. Reuben Lockitch the board voted to suspendDr. Lockitch from staff membership. On the same date publication was made in the LasVegas Sun of only the second sentence of the quoted publication. Plaintiff alleged in his second amended complaint that such statements were published atthe direction and connivance of all the defendants, were meant to be understood as chargingthat plaintiff was incompetent as a surgeon and practitioner of medicine; that all %


of the defendants directed such statements to be published, knew that they were publishedmaliciously, were unfounded and were intended to damage plaintiff in the practice of hisprofession and to convey the information that he was an unfit person to be a member of thestaff of the hospital and were intended to degrade and defame him. Although respondents question the libelous nature of the publication and assert that in anyevent it was privileged, their main support of the summary judgment rests upon the proofsmade at the hearing of the motion for such judgment. They correctly conclude that theseproofs are to the effect that the defendants neither published nor caused to be published theitems above described. Such proofs may be briefly noted. Plaintiff attached as an exhibit to his complaint the minutes of the board of trustees of itsspecial meeting of August 3, 1954, from which the following appears: Mr. Stewart: I makea motion that Dr. Lockitch be suspended for an indefinite period of time from the medicalstaff, due to the investigation made by the hospital board of trustees * * * and this be given tothe press on the approval of the district attorney.' The motion was seconded by Mr. Baker andunanimously carried. Mr. Brayshaw was therefore authorized to consult with Roger Foley,district attorney, or Mr. Dickerson if Mr. Foley was on vacation. In support of the motion to dismiss were the affidavits of Dr. Boyer, Dr. Laub and Dr.Lockwood to the effect that none of them published or caused to be published directly orindirectly or in concert or cooperation with any other person the statements in question. Theaffidavit of Norman M. Brayshaw, the administrator of the hospital, refers first to theunanimously adopted resolution introduced by Mr. Stewart and seconded by Mr. Baker forthe suspension of Dr. Lockitch from the medical staff, and for the release to the press of theaction taken upon securing the approval of the district attorney. He then testifies that hereleased the statement


to the press after conferring with the district attorney's office, and that any act of suspensionwas that of the board of trustees. In opposition to the motion for summary judgment and in answer to the affidavits filed insupport thereof, appellant filed his own affidavit comprising some 1,000 words. It containsnothing controverting the sworn statements of Drs. Boyer, Laub and Lockwood that none ofthem, individually or in concert or cooperation with any one, directed the publications inquestion, and alleging that any press release of the action taken by the board of trustees was atthe direction of the board and was in no part the action of the defendants. Further, in opposition to the motion, plaintiff filed an affidavit executed by Mr. Stewartdescribing occurrences at the said meeting of the board of trustees and the action takeninstructing Mr. Brayshaw to consult the district attorney with reference to publication of thenotice of suspension. There can be found in Mr. Stewart's affidavit nothing controverting the

denials of Drs. Boyer, Laub and Lockwood that they participated in the publication. Plaintiffalso filed in opposition to the motion the affidavit of Mr. Jesse Whipple similar in purportand effect to Mr. Stewart's affidavit and similar in its absence of any statement controvertingthe denials of the respondents. To say that this situation left open any area for the trial of a genuine issue as to anymaterial fact before a judge or jury would deprive Rule 56 NRCP entitled SummaryJudgment of most of its effectiveness. No other conclusion can be reached but that none ofthe appellants participated to any extent in the publications. It is true that the minutes of the trustees' meeting of August 3, 1954 show the presence ofDrs. Boyer, Laub and Lockwood and that the doctors present and the board discussed one ofDr. Lockitch's cases, and it is appellant's contention that at such meeting the respondentsmaliciously, willfully and knowingly made untrue representations concerning Dr. Lockitch tothe members


of the board and urged the board to suspend appellant from the staff, and give the informationof such suspension to the newspapers. The gravamen of this action, however, is the allegedlibelous publication and not any alleged slander of Lockitch to the board of trustees andothers present at the meeting by respondents. It should perhaps be noted that in addition to the proofs mentioned, were copies of thebylaws of the hospital prescribing the manner in which charges of unprofessional or otherobjectionable conduct should be filed, the accused doctor notified and an opportunity givenhim to appear with his witnesses. Appellant's affidavits are to the effect that no such chargeswere made in the manner provided and that no such notice and opportunity to be heard weregiven. This may have to do with the legality of the action taken by the board of trustees but isnot pertinent to the asserted libelous and defamatory publication on which the present actionis based. Affirmed with costs.


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74 Nev. 40, 40 (1958) Weinstein v. Weinstein

MAMIE D. WEINSTEIN, Appellant, v.IRVING WEINSTEIN, Respondent.

No. 3999

February 12, 1958. 321 P.2d 245

Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,Department No. 1.

Divorce action. The trial court entered judgment for husband, and wife appealed. TheSupreme Court held that finding that husband was domiciled in state at time suit was filedwas supported by record. Affirmed.

Jones, Wiener and Jones and D. Francis Horsey, of Las Vegas, for Appellant.

Milton W. Keefer, of Las Vegas, for Respondent.

74 Nev. 40, 41 (1958) Weinstein v. Weinstein

Divorce. In divorce proceedings, finding that husband was domiciled in state at time suit was filed wassupported by record.

OPINION

Per Curiam:

From decree of divorce this appeal is taken by the wife, defendant below. The sole errorassigned is that the record does not support the finding of the trial court that the husband wasdomiciled in Clark County, Nevada, at the time suit was filed. Appellant isolates certain portions of the husband's testimony and contends that theydemonstrate that he was without the necessary bona fide intent to make Nevada his home.This contention is without merit. Not only did the husband testify generally to having suchintent, he also testified that at the time of trial he had been a resident of Nevada for about fiveand one half months and had been physically present in Nevada all of that time; that while hehad come to Nevada with a divorce in mind, that had not been his sole purpose (note theholding in Walker v. Walker, 45 Nev. 105, 198 P. 433); that he suffered from arthritis andhad been advised that the climate of southern Nevada would be helpful; that he had found itso and intended for reasons of health to continue his residence; that he had no property orinterests elsewhere. Read in its entirety the testimony amply supports the finding of the trialcourt. Appellant refers us to our decision in Plunkett v. Plunkett, 71 Nev. 159, 283 P.2d 225.

That case is distinguishable upon the facts. Affirmed.

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74 Nev. 42, 42 (1958) Garibaldi Bros. Trucking Co. v. Waldren

GARIBALDI BROS. TRUCKING CO., a Corporation, and CHARLES F. THOMAS,Appellants, v. HELEN WALDREN, Respondent.

No. 3899

February 12, 1958. 321 P.2d 248.

Appeal from judgment of the Second Judicial District Court, Washoe County; John F.Sexton, Presiding Judge, Department No. 2.

Action for damages resulting from destruction of horse necessitated by fracture of legsustained while being transported in defendants' trailer. The trial court rendered judgment forplaintiff, and defendants appealed. The Supreme Court, Badt, C. J., held that separately statedcauses of action based on defendants' liability as common carrier, negligence, and res ipsaloquitur doctrine, were not inconsistent and that res ipsa loquitur doctrine was applicablenotwithstanding allegations and findings of negligence. Affirmed.

Vargas, Dillon and Bartlett and Springer and McKissick, of Reno, for Appellants.

Leslie E. Riggins, of Reno, for Respondent.

1. Pleading. Separately stated causes of action against motor carrier for injury necessitating destruction of horse,based on defendant's liability as common carrier, negligence of defendant, and res ipsa loquitur doctrine,were not inconsistent and plaintiff was properly permitted to proceed on all three theories of liabilitywithout making an election. Rules of Civil Procedure, rule 8(e) (2).

2. Negligence. Inference of negligence which may be drawn under proper circumstances under res ipsa loquitur doctrinedoes not preclude proof of general negligence or specific acts of negligence.

3. Negligence. So long as actual cause of injury remains unknown, proof of acts of negligence which may have beencause supports inference of negligence arising under res ipsa loquitur doctrine and is not inconsistent withdoctrine.

4. Judgment. Where trial court made separate findings favorable to each


plaintiff to proceed upon a theory of defendant's liability as a common carrier, its liability forordinary negligence, and under the doctrine of res ipsa loquitur, without requiring her toelect; (2) as a corollary, in the court's making affirmative findings on all of these three issues;and (3) that the evidence is insufficient to support a finding of liability on any one of them.We have concluded that there is no merit in any of these assignments. The facts are briefly as follows: The defendant was engaged to haul a number of horses,property of various individual members of a Reno riding group, known as the White Hats,from Reno to Sutcliffe, Nevada. Defendant's truck and trailer arrived, driven by the agent ofdefendant, to load the horses. The trailer was equipped to haul horses, having availablepartitions for the purpose of providing support for the horses and for separating them. Thesepartitions, however, were not used, except in the case of one horse known to have viciouspropensities. The driver of the truck had complete charge of loading the horses, and the agentof the plaintiff made delivery of the horses to the driver at the ramp leading into the trailer.The driver had complete control of the horses and the equipment, and they were in hisexclusive possession during the entire trip to Sutcliffe. Upon arrival at the destination, thetruck was seen to lurch and jerk as the driver maneuvered the truck through a gate; and thehorses were heard screaming and floundering in the trailer. When the horses were unloaded, itwas discovered that the plaintiff's horse had a broken leg and had to be destroyed. Plaintiff's complaint sets out her three theories of her right to recover damages by way ofthree separate causes of action against defendant, (1) under its liability as a common carrier,(2) by reason of its negligence, and (3) under the doctrine of res ipsa loquitur. The court madeseparate findings favorable to each count, found the value of the horse to have been $3000,and that plaintiff was entitled to judgment for damages in said sum.


[Headnotes 1-3] (1) Appellant contends that, despite the liberality of our rules of pleading, 1 plaintiffshould have been compelled to elect one of what it denominates three inconsistent theoriesof her case. In any event, plaintiff's three counts were not inconsistent. The inference ofnegligence that may be drawn under proper circumstances under the doctrine of res ipsaloquitur does not preclude proof of general negligence or particular acts of negligence. Leet v.Union Pac. R. Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008, cert. denied 325 U. S. 866,65 S.Ct. 1403, 89 L.Ed. 1986. Otherwise plaintiff would be penalized for going forward andmaking as specific a case of negligence as possible, a procedure whose end result is notinjurious to the defendant. Leet v. Union Pac. R. Co., supra. So long as the actual cause ofinjury remains unknown, proof of acts of negligence which may have been the cause is not

inconsistent with the doctrine but actually supports the inference which the doctrine raises.Nor is there any inconsistency in alleging negligence on the part of a carrier of livestocksimply because the defendant is also alleged to be liable as a common carrier. Paraphrasingthe language of the court in Reconstruction Finance Corporation v. Goldberg, 7 Cir., 143 F.2d752, 756, in which plaintiff sought to fix defendant's liability under three separate theoriespleaded, the most that can be said of the complaint is that it stated different theories underwhich defendant's liability might be shown.

[Headnote 4] (2) Corollary to the foregoing is defendant's assignment of error that it cannot bedetermined from the judgment upon which theory its liability was based. Appellant relies on Rule 52 NRCP, which requires that the court shall find the factsspecially and state separately its conclusions of law thereon and direct the entry of theappropriate judgment. It devotes 9

happen if those who had its control or management used proper care, affords sufficientevidence, or, as sometimes stated by the courts, reasonable evidence, in the absence ofexplanation by the defendant, that the injury arose from or was caused by the defendant'swant of care. In the present case, the appellant contends that the doctrine of res ipsa loquitur does notapply for two reasons, (a) that plaintiff is precluded from taking advantage of the doctrinebecause she also alleges specific acts of negligence, and (b) that the doctrine should not applyin the case of animals, such as horses, which are known to have vicious propensities to injureone another, that is, that this negatives the control that gives rise to the inference.


The first objection we have heretofore disposed of. Leet v. Union Pac. R. Co., supra. Nordo we find Austin v. Dilday, 55 Nev. 357, 34 P.2d 1073, 36 P.2d 359, on which appellantrelies, in point.

[Headnote 6] The plaintiff here did allege and the court found that the defendant was negligent in failingproperly to load the horses, and in particular that the partitions which were provided in thetrailer for that specific purpose were not utilized, so that the horses were not adequatelyseparated and supported under the circumstances; that the driver of the truck was negligent injerking and lurching the truck, knowing that the horses had no support in the trailer andwould likely be thrown to the floor or against one another. However, as to the actual cause ofthe injury or the immediate circumstances under which it occurred, plaintiff was able only toallege that the horse's leg was found to be broken when the truck arrived at its destination.Under such situation the application of res ipsa loquitur was proper even though specific andgeneral allegations of negligence were made and were found by the court to be true. We are not impressed by the contention that the known propensities of horses to injure oneanother in shipment prevents the application of the doctrine of res ipsa loquitur. Defendantadvertised its experience as a carrier of livestock and was equipped with partitions for use insuch transportation. Even more convincing is the uncontradicted testimony of a veterinarian,who found no cuts, abrasions, hoofprints or marks of any kind on the fractured leg but alongitudinal fracture, some six inches in length, in the upper part of the leg near the horse'sbody caused apparently by the horse's falling against the side or back of the truck or throughthe falling of another horse upon the leg. He explained that if the horse should have slipped orstumbled so that the leg extended out at an angle from his body and another horse fell on himor against him, this could have caused the injury in question.


There is nothing to suggest that the propensity of horses to injure each other had anything todo with the injury to plaintiff's horse.

[Headnote 7] Since the evidence supports the lower court's finding, conclusion and judgment of liabilityupon application of the doctrine of res ipsa loquitur, it is unnecessary for us to examine thesufficiency of the evidence to support the finding of negligence or of liability as a commoncarrier. Affirmed with costs.


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74 Nev. 48, 48 (1958) Williams v. Vickers

CHAS. C. WILLIAMS, MELVIN LONG, JASPER G. BERRY, LOUIS G. BRITT, JO

nevada reports 1958 (74 nev.).pdf

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