Nevada Reports 1922-1923 (46 Nev.).pdf

7/28/2019 Nevada Reports 1922-1923 (46 Nev.).pdf

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46 Nev. 1, 1 (1922)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

APRIL TERM, 1922

____________

46 Nev. 1, 1 (1922) State v. McFadden

[No. 2532]

THE STATE OF NEVADA, Ex Rel. John Weber. W.E. Meyers, and R.L. Tucker,Petitioners, v. Hon. C.J. McFADDEN, Judge of the Ninth Judicial District Court of the

State of Nevada, in and for White Pine County, Respondent.

[205 Pac. 594]

1. MandamusDetermination whether to Strike Report from Court Files Involves JudicialDiscretion.

The determination whether to strike or refuse to strike from the files of the court a report by the grand

jury involves the exercise of purely judicial functions, and was not a ministerial act, and will not be

controlled by mandamus.

2. MandamusDoes Not Lie to Control Judicial Discretion.Mandamus will not lie to control judicial discretion or revise judicial action.

Original Proceeding in mandamus by the State, on relation of John Weber and others,

against C. J. McFadden, Judge of the Ninth Judicial District Court in and for White Pine

County. Writ denied.

A.Jurich, for Petitioners:


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The report contains charges seriously reflecting upon the integrity of the three county

commissioners. The RQO\UHPHG\DYDLODEOHLQWKHORZHUFRXUWZDVDPRWLRQWRH[SXQJHWKHUHSRUWIURPWKHUHFRUG


only remedy available in the lower court was a motion to expunge the report from the

record. Petitioners availed themselves of this remedy, but the motion was denied, and there is

no appeal from the ruling. The question resolves itself into whether or not any person,

individual, or public officer, can be charged by a court, or a branch of a court, which in this

case is a grand jury, with the commission of public offenses and have the opportunity to

defend denied them. Mandamus should issue to compel the lower court to expunge the report

from the record. In some cases, however, mandamus may be employed to correct errors of

inferior tribunals and to prevent a failure of justice or irreparable injury where there is a clear

right and there is an absence of any other adequate remedy. It may also be employed toprevent an abuse of discretion, or an act outside of the exercise of discretion, or to correct an

arbitrary action which does not amount to the exercise of discretion. 26 Cyc. 189; In Re

Chartz, 29 Nev. 110; In Re Breen, 30 Nev. 164; Bennett v. Kalamazoo Circuit Judge, 150 N.

W. 141; Bennett v. Stockwell, 163 N. W. 482. It seems a mere perversion of language to say

that the writ will never issue to control judicial action or to compel a tribunal to act in a

particular way. Wood v. Strother, 18 Pac. 767. The mere fact that an action or proceeding

will lie, does not supersede the remedy by mandamus. The relator must only have a specific,

adequate, and legal remedy, but it must be one competent to afford relief upon the very

subject-matter of his application; and, if it be doubtful whether such action will afford him a

complete remedy, the writ should issue. State v. Wright, 10 Nev. 167; State v.

Commissioners, 22 Nev. 77.Public offenses must be presented by either presentment or indictment. No other method is

provided by law. A report which is neither a presentment nor an indictment is in excess of

jurisdiction, and therefore not privileged. Posten v. Washington, 32 L. R. A. (N.S.) 785;

Bennett v. Kalamazoo, 150 N. W. 141; %HQQHWWY6WRFNZHOOVXSUD5LFKY(DVRQ6:6PLWKY5HFWRU,RZD:DVKLQJWRQ7LPHV&RY


Bennett v. Stockwell, supra; Rich v. Eason, 180 S.W. 303; Smith v. Rector, 11 Iowa, 306;Washington Times Co. v. Downey, 6 Am. & Eng. Ann. Cas. 765.

Chandler&Quayle, for Respondent:

The question is not whether as an original question the report of the grand jury should be

stricken from the records of the district court, but rather whether, when the district court has

already acted on counsel's motion to strike the report from the record, this court will use the

writ of mandamus as a writ of error and issue a formal writ to compel the district court to


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reverse itself. The writ of mandamus will not assume the function of a writ of error, nor will

it serve to require an inferior tribunal to act in any particular manner or to enter any particular

judgment or order. State v. District Court, 40 Nev. 163.

The question as to whether the report of the grand jury here involved does or does not

constitute a presentment is really secondary, the important point being that the lower court

was called upon to exercise its judicial discretion, which cannot be controlled by the writ ofmandamus.

By the Court, Ducker, J.:

This is an original proceeding by the state, on relation of John Weber, W.E. Meyers, and

R. L. Tucker.

Among other matters the petition relates that said petitioners are citizens of White Pine

County, Nevada, and that the two former were county commissioners of said White Pine

County during the years 1919 and 1920, while the latter now is such county commissioner

and chairman of the board; that respondent was during said years and now is the district judge

of the Ninth judicial district court of the State of Nevada, in and for said county; that during

the month of January, 1921, a grand jury was duly and regularly impaneled by the respondent,and that on the 23d day of January, 1921, said grand jury rendered and submitted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

VXPVRIPRQH\WKDWE\VDLGUHSRUWSHWLWLRQHUVDUHSXEOLFO\FDOOHGGHVFULEHGDQGGHQRXQFHGDVSOXQGHUHUVRIWKHFRXQW\WUHDVXU\RIVDLG:KLWH3LQH&RXQW\WKDWWKHVDLGUHSRUWRIWKHJUDQGMXU\ZLWKLQDIHZKRXUVDIWHUEHLQJILOHGZDVSXEOLVKHGLQIXOOLQWKUHHQHZVSDSHUVRIVDLGFRXQW\KDYLQJDZLGHFLUFXODWLRQWKHUHLQWKDWVKRUWO\DIWHUVDLGUHSRUWZDVILOHGSHWLWLRQHUVUHTXHVWHGUHVSRQGHQWLQZULWLQJWRFDXVHVDLGJUDQGMXU\WRUHFRQYHQHIRUWKHSXUSRVHRIFRQVLGHULQJIXUWKHUWKHFKDUJHVFRQWDLQHGLQVDLGUHSRUWFRQFHUQLQJWKHPDQGWRILQGHLWKHUDQLQGLFWPHQWRUSUHVHQWPHQWDJDLQVWVDLGSHWLWLRQHUVLIVDLGJUDQGMXU\KDGHYLGHQFHVXVWDLQLQJWKHVDLGFKDUJHVRUWRH[RQHUDWHVDLGSHWLWLRQHUVWKHUHIURPWKDWRQWKHWKRI)HEUXDU\WKHUHVSRQGHQWLQZULWLQJDGYLVHGWKHVHSHWLWLRQHUVWKDWWKHJUDQGMXU\ZRXOGUHFRQYHQHRQWKHGGD\RI0DUFKWRFRQVLGHUWKHPDWWHUFRQWDLQHGLQWKHLUSHWLWLRQWKDWRQWKHGDWHODVWPHQWLRQHGVDLGJUDQGMXU\GLGUHFRQYHQHDQGILOHGWKHLUVHFRQGUHSRUWWRUHVSRQGHQWEXWIRXQGQRLQGLFWPHQWRUSUHVHQWPHQWDJDLQVWSHWLWLRQHUVDQGIXUWKHUUHIXVHGWRH[RQHUDWHWKHPRQWKHFKDUJHVLQ

VDLGUHSRUWPDGHDJDLQVWWKHPWKDWRQWKH


to the respondent a report, which report was filed with the clerk of the court; that in said


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report these petitioners are charged, while acting as members of the board of county

commissioners of said county, with malfeasance and nonfeasance in office, and are further

charged with having committed numerous public offenses while acting in this capacity, and

are further charged with defrauding said White Pine County of large sums of money in

connection with the building of a county hospital by said county during their term of office,

and are further charged with misapplying funds belonging to said county; that in said reportpetitioners are charged, while acting as members of the board of county commissioners of

said county, with having violated various statutes of the state concerning the duties of county

commissioners, and of defrauding said county of large sums of money; that by said report

petitioners are publicly called, described, and denounced as plunderers of the county treasury

of said White Pine County; that the said report of the grand jury, within a few hours after

being filed, was published in full in three newspapers of said county having a wide circulation

therein; that shortly after said report was filed petitioners requested respondent, in writing, to

cause said grand jury to reconvene for the purpose of considering further the charges

contained in said report concerning them, and to find either an indictment or presentment

against said petitioners, if said grand jury had evidence sustaining the said charges, or to

exonerate said petitioners therefrom; that on the 25th of February the respondent in writingadvised these petitioners that the grand jury would reconvene on the 2d day of March to

consider the matter contained in their petition; that on the date last mentioned said grand jury

did reconvene and filed their second report to respondent, but found no indictment or

presentment against petitioners, and further refused to exonerate them on the charges in said

report made DJDLQVWWKHPWKDWRQWKHVWGD\RI2FWREHUSHWLWLRQHUVILOHGDQGSUHVHQWHGWRUHVSRQGHQWDPRWLRQDQGSHWLWLRQSUD\LQJIRUDQRUGHUH[SXQJLQJDQGVWULNLQJIURPWKHILOHVRIVDLGFRXUWVDLGUHSRUWRIWKHJUDQGMXU\RI-DQXDU\ZKLFKVDLGPRWLRQDQGSHWLWLRQZHUHGHQLHGE\UHVSRQGHQWRQWKHJURXQGVDQGIRUWKH

UHDVRQVWKDWWKHUHSRUWRIWKHJUDQGMXU\ZDVDSULYLOHJHGFRPPXQLFDWLRQ


against them; that on the 1st day of October, 1921, petitioners filed and presented to

respondent a motion and petition praying for an order expunging and striking from the files of

said court said report of the grand jury of January 23, 1921, which said motion and petition

were denied by respondent on the grounds and for the reasons that the report of the grand jury

was a privileged communication.

The petition further recites that petitioners as citizens and public officers of said county

have had the respect and confidence of the people of the county and of their friends and

acquaintances, and have never heretofore been charged with violation of any law; that byreason of said charges and the publication thereof, and the refusal of the grand jury to either

find an indictment or presentment against petitioners, thereby giving them an opportunity to

defend themselves, and the refusal of the respondent to expunge said report from the records

of his court, these petitioners, in the eyes of the public, stand convicted of serious crimes, and

they and their families are forced to submit to disgrace and humiliation; that the charges are

false and prompted by malice; that it was the duty of respondent to refuse to permit the report


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to be filed, and, having ordered the same to be filed, upon ascertaining the contents thereof, it

was his duty to order the same stricken and expunged from the records; and that petitioners

have no plain, speedy, or adequate remedy at law.

The petition concludes with a prayer that this court enter an order commanding respondent

to enter an order summarily expunging and striking said report from the files of said court. A

copy of the report of the grand jury containing the charges complained of is attached to andmade a part of the petition.

Upon the application, the alternative writ of mandamus issued out of this court, and to this

writ and petition respondent filed a demurrer. The demurrer sets out four grounds, namely:7KDWWKHDFWVRXJKWWREHFRHUFHGLVQRWPLQLVWHULDODFW


(1) That the act sought to be coerced is not ministerial act.

(2) That petitioners do not show a certain or clear right to have the grand jury's reportexpunged.

(3) That the refusal of respondent to make its order to expunge the report was a part of

respondent's judicial functions and in the exercise of his judicial discretion.

(4) That the petition shows that respondent has already heard, considered, and acted, and

the manifest purpose of this proceeding is to review or correct such conclusion and action.

1, 2. Counsel for respondent insist that mandamus is not a proper remedy in this case, and

we agree with their contention. Whether it was respondent's legal duty under the facts stated

in the petition to grant the motion cannot be inquired into in this proceeding. The act sought

to be reviewed and reversed was not a ministerial act. The power to strike or refuse to strike

the report from the files of the court involved the exercise of purely judicial functions. It is a

rule of general acceptance that mandamus will not lie to control discretion or revise judicialaction. 18 R.C.L. 297-299; High's Extraordinary Legal Remedies (3d ed.) pp. 31, 32, 169,

174. This rule is well settled in this state. State v. Curler, 4 Nev. 445; State ex rel. Hetzel v.

Board of Commissioners of Eureka County, 8 Nev. 309; Hoole v. Kinkead, 16 Nev. 217;

State v. Curler, 26 Nev. 347, 67 Pac. 1075; State v. District Court, 40 Nev. 163, 161 Pac. 510.

In the latter case this court recognized the general acceptance of the rule in the following

language:

It needs no citation of authority to support the well-established rule that the writ of

mandamus will not assume the function of a writ or error, nor will it serve to require the

inferior tribunal to act in a particular manner or to enter any particular judgment or order. On

the contrary, it serves only to compel the doing ofVRPHDFWZKLFKLWLVWKHFOHDUOHJDOGXW\RIWKHORZHUFRXUWLQVRPHZD\WRGR


some act which it is the clear, legal duty of the lower court in some way to do.

The present case does not fall within the class of cases decided by this court in which it


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was held that that general rule did not apply; as State v. Murphy, 19 Nev. 89, 6 Pac. 840, in

which it was held that the rule had no application to the determination of preliminary

questions relating to the settlement of a statement on motion for a new trial, or Floyd v.

District Court, 36 Nev. 349, 135 Pac. 922, 4 A.L.R. 646, and Roberts et al. v. Second Judicial

District Court, 43 Nev. 332, 185 Pac. 1067, in which cases it was determined that mandamus

was a proper remedy to compel a district court to assume jurisdiction and try a cause onappeal, when it has erroneously decided that it had no jurisdiction.

In the present case no preliminary question was involved, nor did the court decline to

proceed to determine the matter presented by the motion. On the contrary, it entertained the

motion, and made its order refusing to strike the report of the grand jury from the files of the

court. We cannot now, under the rule stated, issue the writ of mandate to review the judgment

of the lower court. We are aware, and counsel for petitioners by citation has pointed out, that

in some jurisdictions mandamus has been employed to control discretion and revise judicial

action, but the decisions to this effect are contrary to the great weight of authority. Of this

character in the case of Bennett, Pros. Atty., v. Kalamazoo Circuit Judge, 183 Mich. 200, 150

N.W. 141, Ann. Cas. 1916e, 223, cited by counsel for petitioners, in which the writ of

mandamus was issued to expunge from the records of the circuit court a report of a grand juryassailing the official conduct of a prosecuting attorney. In High's Extraordinary Legal

Remedies (3d ed.) the author comments on the exceptional scope given to the writ of

mandamus in the jurisdiction of Michigan. At page 196 he says: $VLPLODUGHSDUWXUHIURPWKHZHOOHVWDEOLVKHGUXOHGHQ\LQJWKHZULWIRUWKHFRUUHFWLRQRIHUURUVZKLFKDUHRUGLQDULO\

UHGUHVVHGE\ZULWRIHUURURUDSSHDOLVQRWLFHDEOHLQ0LFKLJDQ


A similar departure from the well-established rule denying the writ for the correction oferrors, which are ordinarily redressed by writ of error or appeal, is noticeable in Michigan.

The cases illustrative of this departure from the general doctrine seem to rest in part upon the

theory that the granting of a mandamus to direct the action of a subordinate judicial tribunal is

the appropriate exercise of a supervisory judicial control, and is in the nature of appellate

action, and in part upon the absence or inadequacy of other legal remedies.

There is nothing in any of the decisions of this court cited or discussed by counsel for

petitioners at variance with the general rule which prevents the issuance of the writ of

mandamus to review and correct judicial acts. In State ex rel. Torreyson v. Board of County

Commissioners, 22 Nev. 263, 38 Pac. 668, the writ was denied because the petitioner had

another adequate remedy at law. The plain implication of the language used in the opinion isthat, even though the petitioner was otherwise entitled to the writ, it could not issue because

the relief sought could be obtained by means of another remedy at law. The language

employed does not mean that the writ will issue in all cases where no other adequate remedy

is available. The case of State v. Wright, 10 Nev. 167, has no bearing upon the question of the

propriety of the writ in the present case. The case of State v. Commissioners of Lander

County, 22 Nev. 71, 35 Pac. 300, also cited and discussed by counsel for petitioners, does not

sustain his contention.


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The general rule that the writ of mandamus will not issue to control discretion or revise

judicial action, was recognized in that case, but it was held that the questions concerning

which it was claimed the board of county commissioners must exercise judgment or

discretion were merely preliminary ones to the main question of whether it was their duty to

allow the claim. The reference in the latter decision to the tests DGRSWHGLQ:RRGY

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adopted in Wood v. Strother, 76 Cal. 545, to determine the propriety of a writ of mandate,

namely, whether the determination of the tribunal sought to be coerced, was intended by law

to be final, and if not whether there was any other plain, speedy and adequate remedy at law,

was merely a suggestion.

The principle recognized and applied in State v. Murphy, supra, was declared to be

decisive of the question presented in State v. Commissioners of Lander County.The decisions cited wherein matter held to be contemptuous of this court has been ordered

stricken from its files and from the records of the district court, are not at all in point, even

upon the main question which petitioners seek to have determined in this proceeding, that it is

their legal right to have the report of the grand jury stricken from the files of the court.

Certainly the principles involved in those cases are not applicable to the question presented

here. As stated by counsel for respondent, the rules governing contempt of court are very

different from the rules governing the issuance of a writ of mandamus, and there is no

analogy between them.

The writ must be denied, and it is so ordered.

____________

46 Nev. 10, 10 (1922) Jones v. Golick

[No. 2526]

C.C. JONES, Respondent, v. CHARLES GOLICK

and S.L. KOVACHEVICH, Appellants.

[206 Pac. 679]

1. HighwaysEvidence Held to Show Negligence in Operating an Automobile.In an action for damages, resulting from an automobile collision, evidence heldsufficient to sustain a

finding a negligence on the part of defendant in driving and managing his automobile.

2. Master and ServantOne Loaning His Automobile to Brother-In-Law Held Not Liable forInjuries Inflicted; Family.


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Where K. and his family lived with his mother-in-law and brother-in-law sharing the household

expenses but not supporting them, and K. loaned his automobile to his brother-in-law, who damaged

another automobile in a collision, there was no liability on the part of K., the brother-in-law not being a

member of the family of K., since a family must have a head upon whom its other members are

wholly or partially dependent.

3. Damages$415.30 Held Not Excessive for Injuries to an Automobile.

A judgment for $415.30 for injuries to an automobile heldnot excessive, though only $270 wasexpended for repairs; the evidence amply showing other damages.

4. Appeal and ErrorQuestion Calling for Opinion Held Not Prejudicial.Allowance of a question calling for the opinion of a witness is harmless error, where the court could

draw conclusions as to the information sought from other evidence.

Appeal from Second Judicial District Court, Washoe County; ThomasF.Moran, Judge.

Action by C.C. Jones against Charles Golick and S.L. Kovachevich. From a judgment for

plaintiff, defendants appeal. Affirmed as to defendant Charles Golick and reversed as to

defendant S.L. Kovachevich.

AugustusTilden, for Appellants:

The accident was due, in substantial part at least, to the irregular driving ofplaintiff's son,

by which the cause of action is defeated; and said irregular driving was the sole proximate

negligent cause of the accident, DQGUHQGHUVSODLQWLIIDQVZHUDEOHLQGDPDJHVWRGHIHQGDQW.RYDFKHYLFK


and renders plaintiff answerable in damages to defendant Kovachevich. It is not within theprovince of any court to guess between the irregular driving and defendant's peril, and declare

that one rather than the other, or one more than the other, was responsible for the accident.

Judgments cannot be based upon assumptions, or upon conclusions reached by guess,' but

must be sustained by facts shown by the evidence or admitted by the party to be bound.

Richards v. Vermilyea, 42 Nev. 294. Where the testimony leaves the matter uncertain, and

shows that any one of half a dozen things may have brought about the injury, for some of

which the employer is responsible, and for some of which he is not, it is not for the jury to

guess between these half-dozen causes, and find that the negligence of the employer was the

real cause, when there is no satisfactory foundation in the testimony for that conclusion.

Patton v. Railway Co., 179 U.S. 658.

The evidence fails to show that defendant's peril was independent of plaintiff's irregular

driving. The credibility of the witness is not in question, but the credibility of his testimony

is. These terms are by no means equivalent. Without the slightest reflection upon the integrity

of standing of the witness, his testimony fails to win belief apart from any considerations

definitely affecting the personality of the witness. Moore v. Rochester M. Co., 42 Nev. 175.

Plaintiff's angling course was the result of his negligent failure seasonably to discover

defendant's approach, which failure was the sole proximate negligent cause of the accident. If


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the court cannot say that either car was at fault, the rule is that if, in the prosecution of a

lawful act, an accident, which is purely an accident, arises, no action can be maintained for a

resulting injury. Walsh v. Railway, 8 Nev. 10.

The issue of negligence should be generally decided by the jury and not be disposed of by the

judge as a matter of law. Huddy, Automobiles, 5th ed., sec. 267.


Defendant Kovachevich is not answerable for the negligence, if any, of defendant Golick.

Huddy, Automobiles, 5th ed., sec. 623, et seq.; 5 Am. Law Rep. 226; 10 Am. Law Rep. 1449;

Mogle v. Scott Co., 144 Minn. 173.

An opinion as to the care or negligence of a person causing an injury, or of the person

injured thereby, in the performance of the act causing or contributing to the injury is

inadmissible. Similarly, an opinion as to the practicability of performing such act without

injury is inadmissible either on the issue of primary or contributory negligence, and so is anopinion as to the sufficiency of the precautions taken to avoid an injury. 8 Ency. Ev., p. 955.

Boyd&CurlerandB.V.Curler, for Respondent:

The issues are as to who was responsible for the accident, the amount of damage sustained

by the innocent party, and the coresponsibility of defendant Kovachevich.

A judgment on conflicting evidence will not be set aside under any circumstances if

supported by substantial evidence. Welland v. Williams, 21 Nev. 230; Craw v. Wilson, 32

Nev. 385; Vietti v. Nesbitt, 22 Nev. 390; Palmer v. Culverwell, 24 Nev. 114; Crawford v.

Crawford, 24 Nev. 410; Barnes v. W.U.T. Co., 27 Nev. 438; Ford v. Campbell, 26 Nev. 578;

Dixon v. Miller, 43 Nev. 280.

The real theory upon which the liability of the owner of a car rests is that, where anautomobile is provided for the pleasure of the owner's family, the business of the owner in

such a case is the furnishing of pleasure to his family, and the driver is acting for him within

the scope of the business when he is driving the machine for such purpose, and the head of

the family is responsible. Birch v. Abercombie, 74 Wash. 493; King v. Smythe, 140 Tenn.

225. The fact that during business hours the machine was used in the business of the owner

does not in any sense afford an exception WRWKHJHQHUDOUXOH


to the general rule. Dennison v. McNaughton, 228 Fed. 401.

The evidence is amply sufficient to justify the amount of the judgment.

By the Court, Ducker, J.:

This action grows out of an accident in which an automobile owned by respondent was

struck by an automobile belonging to appellant Kovachevich. Respondent recovered damages

in the court below. Judgment was entered in favor of respondent and against appellants


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jointly and severally in the sum of $415.30. From the judgment and order denying a motion

for a new trial, this appeal is taken.

At the time of the accident respondent's son Elmer was driving his car, and appellant

Charles Golick, a brother-in-law of Kovachevich, was driving the latter's car.

1. The court found that the accident was caused by the negligent driving of the appellant

Golick, and the first question we are called upon to determine is whether there is sufficientevidence to sustain this finding. Appellants contend that the accident was due solely to the

negligent driving of respondent's son. They further contend that, under any aspect of the

evidence, the matter of negligence is left so uncertain that it is impossible for a court to assign

the blame to one driver rather than the other. The version of the conditions surrounding the

accident, and the way in which it happened given by the witnesses testifying on behalf of

respondent, the lower court, of course, had a right to believe. If the substance of this version

is sufficient to sustain that finding of the trial court, we cannot disturb it, even though there is

other substantial evidence which contradicts this version.

The accident happened on the 10th of August, 1920, between 8 and 9 o'clock, p.m., at a

point on a road about three miles westerly from the city of Reno. The exact spot of the

accident is a matter of dispute in WKHHYLGHQFH


the evidence. According to the version of appellants' witnesses, it happened on a small bridge

which extends diagonally across the road. The testimony of respondent's witnesses places it at

a point about 8 1/2 feet west of the bridge.

Respondent's automobile was traveling on the road in a westerly direction, and the other

machine in the opposite direction. In the vicinity of the scene of the accident, the road is

comparatively straight from a point about 400 feet westerly from the bridge, to a point about400 feet easterly from the bridge. There is a curve in the road at each of these points. A

person in an automobile after it had rounded either curve could see an automobile after it had

rounded the opposite curve and along this stretch of the road. The version of the affair as

given by respondent and his witnesses is substantially as follows: Respondent testified that he

went to scene of the accident the next morning at about 7:30 or 8 o'clock, and as to

observations and measurements made by him there. He found his automobile in a damaged

condition a short distance west of the bridge. From measurements made by him, the rear end

of the car was 18 inches north from the main traveled north wheel-track of the road. From the

left front wheel of the car across the road to the southern boundary thereof, the distance, as

measured by respondent, was 10 1/2 feet, and beyond this was a ditch running near the southside of the road. The right front wheel was between 2 and 3 feet east of a telephone pole

which stood near a fence on the north side of the road. At a point opposite the rear end of the

car, the distance from the southern road-track south to the bank of the ditch was about one

foot, making a clearance of about 9 1/2 feet between the rear end of the automobile and the

ditch on the other side of the road. According to measurements made by respondent, the

bridge was about 15 1/2 feet wide. The main traveled rut of the road on the north side of the

bridge was about 4 1/2 or 5 feet from the north edge of the bridge.


11/323


Respondent testified that he traced the track of the right-hand wheels of his car back from the

car across the bridge to where they left the road between the bridge and the culvert; that thetrack turned out of the road to the north between the culvert and the bridge and continued out

of the road, crossing the bridge at a distance of about one foot from the north end of the

bridge where the track came into it, and at a distance of about 3 or 4 inches from the north

end of the bridge where the track left it.

Respondent's son Lester testified that he went to the scene of the accident on the morning

of the 11th of August; that he was there three times on that day; that he was there with his

father at about lunch time and took some measurements; that apparently the front end of the

car had been moved, shoved over off the road for a distance of 16 or 17 inches from the

north wheel-track; that the rear end apparently had not been moved, because the spokes of

the hub were sticking down into the ground; that the measurements showed that respondent'scar was 8 1/2 feet west of the bridge; that the distance from the body of the car in the rear to

the south side of the road was 10 feet and 3 or 4 inches; that the distance from the right front

wheel of respondent's car to the telegraph pole was 2 feet and 4 inches; that the wheel was in

a southeasterly direction from the pole; that the distance from the pole to the south side of the

road was 17 feet and 6 or 7 inches, and from the pole to the ditch bank was 19 1/2 feet; that

on the first trip to the car witness traced the track of the right-hand wheel of respondent's car

across the bridge; that it was about 14 inches from where the track came onto the bridge from

the east to the north end of the bridge, and from where it left the bridge on the west side it

was about 3 or 4 inches to the north end of the bridge.

Respondent's son, Elmer Jones, testified substantially DVIROORZV7KDWKHZDVJRLQJRQ

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


12/323

VDPHDQJOHWKDWKHZDVRXWWRWKHVFHQHRIWKHDFFLGHQWWKHQH[WGD\RUWKHGD\DIWHUZDUGVWKDWWKHFDUKDG


as follows: That he was going on 19 years of age; that he had driven an automobile for at least

three years and was driving his father's car on the night of the accident; that there were three

other boys riding in the car at the time; that during the evening he had been driving between

15 and 20 miles an hour and was driving at that rate as he approached the bridge where the

accident occurred; that he was slowing down for the bridge to about 12 miles an hour when

he reached the culvert; that he could not tell how fast he was going when he crossed the

bridge, but he was slowing down all the time; that he was slowing down at the culvert when

he first observed appellant's car coming around the corner west of the bridge; that he

estimated the speed of the oncoming car at that time to be about 35 miles an hour; that he

started to turn his car out of the road as soon as he saw the other car, and the nearer it camethe more he turned out; that he turned out to give the road, as the other car was coming faster

then he was; that there was room enough for the two cars to pass on the bridge with about a

foot between them; that he crossed the bridge on the north part of it and had reached a point

about 8 or 10 feet to the west of the bridge, when the car driven by Golick collided with

respondent's car; that before the car driven by Golick reached respondent's car it turned to the

right and then quickly swung to the left diagonally across the road; that respondent's car was

out of the road on the north or right hand side, with the lights pointing out towards the field

on that side, and the left-hand wheel was about 18 inches out of the rut when the car was

struck; the Kovachevich's car did not seem to slow up any; that when respondent's car was

struck the back end of the car did not move and the front end was slung into the road; thatappellant's car was carried sideways to the bride and stopped directly on top of it and across

the road at the same angle; that he was out to the scene of the accident the next day or the dayDIWHUZDUGVWKDWWKHFDUKDGQRWEHHQPRYHGIURPZKHUHLWZDVOHIWDIWHUWKHDFFLGHQW


afterwards; that the car had not been moved from where it was left after the accident.

On cross-examination as to the speed of his car, the witness testified as follows:

Q. Did you go at the rate of 20 miles an hour until you reached the culvert? A. No, I wasgoing about the same rate of speed.

Q. Still 20? A. Well, I don't know whether it was 20 or 15.

Q. You swear it was not 25? A. I know it wasn't 25.

Q. Swear solemnly that it wasn't 25? A. No, I don't like to.

Q. Would you swear it wasn't 30 miles an hour? A. I wouldn't like to.

Q. Would you swear it was not 35 miles an hour? A. Yes, I would.

Q. Anywhere between 30 and 35 miles an hour you wouldn't like to swear? A. No, I am


13/323

pretty sure it wasn't.

With reference to the direction taken by the car in going over the bridge, the witness

testified as follows on cross-examination:

Q. Then, when you got down here to make the bridge you had to make it at an angle? A. I

didn't have to make it at an angle.

Q. Didn't you take it on that angle? A. I took it on that angle, yes.Melvin Curtis, a witness on behalf of respondent testified substantially as follows: That he

was 17 years old and had driven a car frequently since 1917 and had also driven a truck; that

he had driven or ridden in a car sufficiently to have an idea of the rate of speed a car was

going; that on the night of the accident he was riding in respondent's car and was sitting on

the rear seat on the left-hand side; that they had not been traveling more than 20 miles an hour

that evening; that they were directly over a little culvert about 50 feet from the bridge, when

he first observed .RYDFKHYLFKVFDUFRPLQJDURXQGWKHEHQGSRVVLEO\IHHWRUPRUHZHVWRIWKHPWKDWUHVSRQGHQWVFDUZDVJRLQJRUPLOHVDQKRXUZKHQLWFURVVHGWKHEULGJHWKDW-RQHVWXUQHGKLVFDUWRWKHULJKWZKHQDOLWWOHSDVWWKHFXOYHUWDQGKDGWUDYHOHGSRVVLEO\RUIHHWEH\RQGWKHEULGJHZKHQWKHDFFLGHQWRFFXUUHGWKDWWKHUHDU

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

EHHQGULYLQJWKDWURDGDJRRGGHDODQGNQHZWKHFXOYHUWZDVWKHUH


Kovachevich's car coming around the bend, possibly 300 feet or more west of them; that

respondent's car was going 7 or 8 miles an hour when it crossed the bridge; that Jones turned

his car to the right when a little past the culvert and had traveled possibly 8 or 10 feet beyond

the bridge when the accident occurred; that the rear end was then 8 or 10 feet past the bridge;

that when the oncoming car got within about 25 feet of respondent's car it turned to the right,

and, coming about 20 feet, turned diagonally across the road and struck respondent's car; that

at the time of the impact respondent's car was off to the right of the road; that it was to theright of the right-hand wheel-track of the road going west, and the lights of the car were

pointing out over the field to the north of the road; that Kovachevich's car struck respondents

car a glancing blow, a severe blow; that it was severe enough to throw the witness nearly over

into the front seat; that the front part of Golick's car and the rear part of respondent's came

together; that when he got out the front wheels of respondent's car were about on the north

wheel-track of the road; that it was jacked up and pushed over out of the road; that when

Kovachevich's car glanced off of respondent's car it skidded sideways up on the bridge and


14/323

stopped, fronting north just about parallel with the bridge; that witness had been driving that

road a good deal and knew the culvert was there.

Charles Patterson, a witness on behalf of respondent, testified that he was 19 years of age

and had had considerable experience in driving automobiles; that he was familiar with the

road where the accident happened and was riding on the rear seat of respondent's automobile

on the right-hand side at the time of the accident; that the car had not been driven over 20miles an hour on that night; that he first noticed Kovachevich's car coming around the turn

about 300 or 400 feet west of the culvert; that the Jones car was then just passing the culvert,

which was about 40 to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

XSDQGPRYHGRIIWKHURDGDERXWLQFKHVWKDWEHIRUHLWZDVPRYHGWKHOHIWIURQWZKHHOZDVDERXWIHHWLQVLGHWKHQRUWKZKHHOWUDFNRIWKHURDGWKDWWKHOHIWZKHHOLQIURQWZDVMXVWRIIWKHQRUWKZKHHOWUDFNWKDWZKHQZLWQHVVJRWRXWRIWKHFDU.RYDFKHYLFKV

FDUZDVVWDQGLQJOHQJWKZLVHZLWKWKHEULGJH


feet east of the bridge; that when they crossed the culvert Jones slowed the car down and

turned to the right to let the other car pass; that when they crossed the bridge respondent's car

was going from 5 to 6 miles an hour; that respondent's car was from 7 to 8 feet west of the

bridge when the accident happened; that when he first observed Kovachevich's car it wascoming, in his judgment, at the rate of from 30 to 35 miles an hour; that witness did not

notice the speed of Kovachevich's car at the time of impact, but it struck respondent's car an

awful blow and knocked the front wheels into the road; that just prior to the impact the lights

of respondent's car were pointing out towards the field; that after the accident the front part of

the car was jacked up and moved off the road about 18 inches; that before it was moved the

left front wheel was about 1 1/2 feet inside the north wheel-track of the road; that the left

wheel in front was just off the north wheel-track; that, when witness got out of the car,

Kovachevich's car was standing lengthwise with the bridge.

Lawrence Bernasconi, a witness on behalf of respondent, testified that he had ridden in

cars a great deal; that he was riding in the Jones car on the evening of the accident; thatrespondent's car was not going over 20 miles an hour a quarter of a mile from the place where

the accident happened; that he first saw the Kovachevich car that evening when it collided

with respondent's car; that respondent's car was then 8 or 10 feet west of the bridge and off to

the right of the main road; that Jones slowed his car down to take the bridge, and it was going

between 6 and 7 miles an hour when it crossed the bridge; that after the collision the left front

wheel was in the right rut of the main road going west, the north rut; that after the accident

Kovachevich's car was on the bridge parallel with it, facing towards the north; that the front


15/323

end of the car was about 14 inches from the north end of the bridge, and the hind end of the

car about the same GLVWDQFHIURPWKHVRXWKHQGRIWKHEULGJHWKDWWKHFDUZDVLQWKHFHQWHURIWKHEULGJHWKDWLPPHGLDWHO\DIWHUWKHDFFLGHQWKHKDGDFRQYHUVDWLRQZLWK

*ROLFNLQZKLFKWKHODWWHUVDLGKHGLGQRWVHHWKHEULGJH


distance from the south end of the bridge; that the car was in the center of the bridge; that

immediately after the accident he had a conversation with Golick in which the latter said he

did not see the bridge.

This evidence is sufficient to justify the finding of the court below that Golick was

negligent in driving and managing the car, and that his negligence was the cause of the

accident. According to this version, both drivers had ample opportunity to see each other's car

while they were approximately 400 feet apart, and over the entire distance. Jones immediately

turned out of the road to the right and commenced to slow down. He crossed the bridge on the

right-hand side and near the northern edge of it at a low rate of speed. According to witness

Curtis, the car was traveling about 7 or 8 miles an hour when it crossed the bridge. According

to witness Patterson, it was going at the rate of about 5 or 6 miles an hour. Witness

Bernasconi also testified that the car was traveling 5 or 6 miles an hour when it crossed the

bridge. All of this testimony placed respondent's car a distance of from 7 to 10 feet west of

the bridge when the accident happened, and clear out of the main traveled ruts of the road on

the north side. The actual measurements as testified to by respondent and his son Lester place

the rear end of the car 8 1/2 feet west of the bridge, and the right-hand hind wheel 18 inches

north of the north wheel-rut of the road. Obviously, as respondent's car was to the north of the

main traveled part of the road, there was ample room for the other car to pass, even though it

kept all of the road. Moreover, the measurements, as testified to by respondent, show thatthere was a clearance of about 9 1/2 feet between the rear end of his car and the ditch on the

south side of the road, and that the distance from the left front wheel to the southern boundary

of the road was 10 1/2 feet. This testimony is closely corroborated by respondent's son Lester.

It appears from respondent's evidence that young Jones could not have turned to the right

much further without incurring the danger of colliding with the telegraph RUWHOHSKRQHSROH


or telephone pole. As soon as he rounded the west curve, Golick had an opportunity to seerespondent's car and to slow down. But, notwithstanding this, he was going at a high rate of

speed when his car struck respondent's car. With all of the road clear before him and some

space to spare, he was going so fast that, when he saw the ditch before him and turned back

into the road, he was unable to manage his car and go through without striking respondent's

car. These are legitimate inferences which the trial court had a right to draw from

respondent's evidence. True, the version given by the witness who testified on behalf of

appellants is diametrically opposed to respondent's evidence in several respects, and


16/323

exonerates Golick from all blame, and attributes negligence to the driver of respondent's car.

We will not attempt to detail this testimony, for to do so would unnecessarily extend this

opinion. Counsel for appellant concedes the rule that, where there is substantial evidence to

support the finding of the lower court, this court cannot disturb it. This court cannot pass

upon the credibility of witnesses, for this is exclusively the function of a trial court by jury.

By reason of the applicability of these rules of law, the theory of counsel for appellantsthat the evidence leaves the question of negligence so uncertain that the trial court was not

justified in attributing negligence to one driver rather than the other cannot be accepted as the

doctrine of the case.

In support of this theory, if we do not misapprehend counsel, it is urged that according to

the testimony of Elmer Jones his car angled across the bridge; that this made it necessary for

Golick to turn out to the right, where he was confronted by a ditch; that in order to avoid this

peril he was forced to turn back into the road, which made the accident unavoidable. True,

Elmer Jones made the following rather indefinite statement on cross-examination. I took it

an an angle, yes, when referring to the manner in which the car went over the bridge. But the

testimony of respondent and KLVVRQ/HVWHUDVWRWKHREVHUYDWLRQVWKH\PDGHVKRZHGWKH

DQJOHZDVYHU\VOLJKW


his son Lester, as to the observations they made, showed the angle was very slight. From the

respondent's observations it appears that the track made by the right wheel of his car came

onto the bridge from the east at a distance of about one foot from the north end of the bridge,

and left it about 3 or 4 inches from the north edge of the bridge. His son Lester places these

distances at about 14 inches on the east side, and 3 or 4 inches on the west side. If the trial

court credited this testimony, it would have been justified in concluding that there would havebeen ample room for Golick to have driven his car safely over the bridge if he had managed it

properly, even if the cars had met at this point, as claimed by witnesses for appellants. The

theory that the trial court could not, under any view of the evidence, legitimately fix the

blame on one driver rather than the other, also loses sight of the fact that the evidence of

respondent tends to prove that at the time of the accident Elmer Jones was driving at a very

low rate of speed, while Golick was driving fast.

2. It is next contended on the part of appellant Kovachevich that, though he was the owner

of the car in use at the time of the accident, which resulted in injuries to respondent's car,

since the car was being used and driven by one to whom he had loaned it, he is not liable. In

view of the manner in which the case is presented on this appeal, as to the liability ofKovachevich, we need only to consider the question as to whether or not the appellant,

Golick, who was driving the car, was a member of the family of the appellant Kovachevich.

The undisputed evidence shows that Kovachevich was, at the time of the accident, engaged in

business and that he used the car in question in his business during the hours from 8 a.m. to 6

p.m., and for the pleasure of himself and family at other times. It is also undisputed that

appellant Kovachevich, together with his wife and 19-year-old child, lived in the same house

with his mother-in-law and her three XQPDUULHGFKLOGUHQWKH\GLYLGHGWKHH[SHQVHWKXV


17/323

LQFXUUHG


unmarried children; they divided the expense thus incurred. It is also undisputed thatappellant Golick, shortly before 6 o'clock in the evening, asked appellant Kovachevich if he

(Golick) could have the use of the car on the evening of the accident, if Kovachevich did not

intend to use it; that Kovachevich responded that he would consider it, and later, about 7

o'clock when Golick again asked about the car, Kovachevich told him to take it. Was Golick

a member of the family of Kovachevich? The word family is a word of great flexibility, and

when used in a statute or written instrument it must be given an interpretation in keeping with

the idea sought to be expressed; but we do not think the word can be given such a wide

meaning in the circumstances of this case as to make appellant Golick a member of

Kovachevich's family. Kovachevich contributed nothing to the support of any of the persons

residing in the house, except for his child's, his wife's, and his own. So far as it appears, hewas in no way legally or morally under obligations to contribute to their support, and

certainly they received none from him. The mere fact that they resided in the same house and

shared the household expenses is no more an evidence that the mother-in-law and her

unmarried children are members of Kovachevich's family, than it is that he is a member of the

mother-in-law's family. There must be something more than mere residing together to

constitute them members of the family of the other. Kovachevich, so far as the evidence goes,

owed no duty whatsoever to provide the Golick family with the use of an automobile, and on

the particular occasion loaned it for the evening. We think the definition of family which

fairly states the rule applicable to this character of a case is given in the case of Sheehy v.

Scott, 128 Iowa, 551, 104 N. W. 1139, 4 L.R.A. (N.S.) 365, where it is said:

To constitute one or more persons, with another, living together in the same house, afamily, it must DSSHDUWKDWWKH\DUHEHLQJVXSSRUWHGE\WKDWRWKHULQZKROHRULQSDUWDQGDUHGHSHQGHQWRQKLPWKHUHIRUDQGIXUWKHUWKDWKHLVXQGHUDQDWXUDORUPRUDOREOLJDWLRQ

WRUHQGHUVXFKVXSSRUW


appear that they are being supported by that other in whole or in part, and are dependent on

him therefor, and, further, that he is under a natural or moral obligation to render such

support.In the case of Moredock v. Moredock (C.C.) 179 Fed. 163, the words his family were

construed to mean his children. Words and Phrases, Corpus Juris, and other works contain

citation to many cases wherein the word family is defined, but no two of them are alike.

While the word is one of great flexibility, we think it may be said that the underlying

principle running through the mass of authorities, is that there must be a head to a family,

upon whom the other members are wholly or partially dependent. 25 C.J. 664.

Such is not the situation in the instant case.


18/323

3. As to the contention that the judgment is excessive, we need only to say that we think it

is not sustained. At least, there is ample evidence to support the findings and judgment as to

the amount of damages, and we would be trenching upon the prerogative of the trial court

were we to reverse the judgment on this account. True it is that the repair bill was only $270,

but there is ample evidence of other damages sustained.

4. It is urged that the court erred in overruling appellants' objection to the followingquestion asked of Melvin Curtis:

Mr. Curtis, was or was not there room enough for the defendant to have crossed that

bridge, in his car, without coming in contact with the Jones car?

The question was answered in the affirmative. It was objected to as calling for the opinion

of the witness. If we assume that it was error to allow the question, still it was not one of

which appellants can complain. As the conditions surrounding the accident were all in

evidence and the court could therefore draw its own conclusion as to whether Golick could

have crossed the bridge without striking respondent's car, we think that it is improbable that

the court was at all influenced by the witness's answer to the question. Perceiving no

prejudicial error other than that pointed out, LWLVRUGHUHGWKDWWKHWULDOFRXUWPRGLI\LWVMXGJPHQWKHUHWRIRUHHQWHUHGVRDVWRUHQGHUMXGJPHQWLQIDYRURIDSSHOODQW.RYDFKHYLFKDQGDVVRPRGLILHGLWLVRUGHUHGWKDWWKHMXGJPHQWEHDIILUPHG


it is ordered that the trial court modify its judgment heretofore entered so as to render

judgment in favor of appellant Kovachevich, and, as so modified, it is ordered that the

judgment be affirmed.

____________

46 Nev. 25, 25 (1922) State v. District Court

[No. 2541]

THE STATE OF NEVADA, Ex Rel. MELVIN F. PHILLIPS, Petitioner, v. THE SECOND

JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the Countyof Washoe, and the HON. GEORGE A. BARTLETT, Judge of said Court, Respondents.

[207 Pac. 80]

1. MandamusIssues Only if Relator Has Legal Right to Have Court Do What It Refuses to

Do.

Before the supreme court will issue a writ of mandamus to an inferior tribunal, relator must, under

Rev. Laws, 5695, establish facts sufficient to show that he has a legal right to have something done which


19/323

the inferior tribunal has refused to to.

2. MandamusDecision on Motion for Leave to Sue as Pauper Cannot Be Reviewed byMandamus.

The judge of the lower court before whom an action was pending had jurisdiction to hear a motion for

leave to sue as a poor person, and his decision that upon the showing made plaintiff had failed to bring

himself within the rule of the common law was a judicial act which cannot be reviewed by writ of

mandamus.

Original petition for mandamus by the State, on the relation of Melvin F. Phillips, against

the Second Judicial District Court of the State of Nevada in and for the County of Washoe

and another. Petition denied, and proceeding dismissed.

J.W.Dignon(McCarran&Mashburn, of Counsel), for Petitioner:

Mandamus is the proper remedy. The rule that mandamus will not lie to control judicial

discretion does not apply to an act which the petitioner has a right to have performed, and

which the judicial officer should perform; and where preliminary questions require

adjudication. State ex rel. Keane v. Murphy, 1HY


19 Nev. 89; 18 R.C.L. 126; Wood v. Strother, 18 Pac. 767; Keller v. Hewett, 41 Pac. 871;

Hensley v. Superior Court, 44 Pac. 232; Holtum v. Grief, 78 Pac. 11.

Nor does it require the citation of authority to the proposition that even where discretion

is vested, if that discretion under the facts can be legally exercised in but one way, mandate

will lie to compel the inferior tribunal so to exercise it. Newlands v. Superior Court, 154

Pac. 829. When a discretion is abused and made to work injustice, it is admissible that it

shall be controlled by mandamus. Illinois S.D.E. v. People, 123 Ill. 227; State v. Adcock,

121 Am. St. 681.

Petitioner is a pauper. The showing made was uncontradicted. Counter-affidavits which

merely set up an affirmative defense are insufficient. Kahn v. Singer Mfg. Co., 42 N.Y.S.

461. Evidence that plaintiff is of sufficient physical ability to labor for and acquire means to

prosecute or defend is not sufficient to show that he should not be allowed to sue as a poor

person. Kerr v. State, 35 Ind. 288; Stevens v. W.U.T. Co., 90 Pac. 799; McNamara v. Nolan,

34 N.Y.S. 178; Kruegel v. Johnson, 93 S.W. 483.

Although an attorney takes a case on a contingent fee, or otherwise acquires an interest in

the suit, plaintiff nevertheless may be permitted to sue in forma pauperis. 15 C.J. 234.

GeoB.Thatcher, for Respondents:

Mandamus will not lie. A writ of mandamus will not assume the function of a writ of

error, nor will it serve to require an inferior tribunal to enter any particular judgment or order.

State v. District Court, 40 Nev. 163; Hoole v. Kinkead, 16 Nev. 217; Humboldt County v.

Churchill County, 6 Nev. 31.

Where a controversy is heard and determined upon facts presented, mandamus will not issue

to disturb, reverse, or review the decision, even though the decision be erroneous. State v.


20/323

District Court, supra; Hoole v..LQNHDGVXSUD)OR\GY'LVWULFW&RXUW1HY+DUGLQ

Y*XWKULH1HY&DKLOOY6XSHULRU&RXUW3DF


Kinkead, supra; Floyd v. District Court, 36 Nev. 349; Hardin v. Guthrie, 26 Nev. 246; Cahill

v. Superior Court, 78 Pac. 467.

Applications for leave to sue in forma pauperis are not to be encouraged. Ordinarily the

granting thereof is largely a matter of discretion with the court. 15 C.J. 236. Where an

attorney takes the case on a contingent fee, or otherwise acquires an interest in the suit,

plaintiff will not be permitted to sue as a poor person without also showing that his attorney is

a poor person. Esquibel v. Atchison R.R. Co., 206 Fed. 863; Boyle v. Great Northern

Railroad, 63 Fed. 539; Feil v. Wabash R. Co., 119 Fed. 490. It is inconsistent to permit

plaintiff to sue as a poor person when he has parted with an interest in the claim. Joyce v.

Cooper, 49 N. Y. Super. 115. This rule is entirely consistent with all the statutes and with thecommon law. L.R.A. 1918b, 313; Brinkley v. Louisville & N. R. Co., 95 Fed. 345.

The common law of England has been adopted, in so far as it is not repugnant to or in

conflict with the constitution and laws of the United States and of the State of Nevada, and

the common law of England includes the statutes. 11 Henry VII, chap. 12; 23 Henry VIII,

chap. 15. This does not apply, however, where statutes have been repealed or modified by the

legislature. At common law jurors were not entitled to compensation; the right is purely

statutory, and in the absence of statute cannot be recovered. Also, it is competent for the

legislature to require such services without compensation. Neely v. State, 4 Baxt. (Tenn.)

174; Birch v. Phelan, 159 Pac. 209; Hilton v. Curry, 56 Pac. 784; Phillips v. Eureka Co., 19

Nev. 348. The common law has been modified in this respect. Rev. Laws, 2001, 2013.

By the Court, Sanders, C.J.:

Melvin F. Phillips, a citizen of this state, sued Thomas Ginocchio and D.F. Capps, police

officers of the city of Reno, to recover the sum of $10,000 as damages for his DOOHJHG

XQODZIXODUUHVWDQGLPSULVRQPHQW


alleged unlawful arrest and imprisonment. Upon the request of plaintiff the court set the case

for trial before a jury on the 17th day of January, 1922. Thereafter, on, to wit, the 12th day ofthat month, the plaintiff made a motion for leave to further prosecute his action in forma

pauperis. His motion was based on his affidavit, stating, in addition to his declaration of

poverty, that he had a good and meritorious cause of action, and had been so advised by his

attorney, and that no person, other than himself, had any interest in the prosecution of his

action. The motion came on to be heard upon the pleadings and oral testimony of plaintiff and

his attorney in support of his affidavit. The court denied the motion, whereupon plaintiff

moved for an order to vacate the setting of the case for trial before a jury, and asked that the


21/323

court refrain and desist from taking any further proceeding in the case until such time as

plaintiff could sue out of the Supreme Court of the State of Nevada a writ of mandamus

commanding the presiding judge to permit him to further prosecute his action as a pauper.

This motion was also denied, whereupon plaintiff made application to this court for a writ of

mandamus. Upon consideration of his petition for the writ, this court made an order

commanding Hon. George A. Bartlett, as judge of the district court of Washoe County, torefrain and desist from any further proceeding in the action of Melvin F. Phillips against

Thomas Ginocchio and D.F. Capps, and to permit plaintiff to further prosecute his action

without the payment of legal fees, or show cause before this court on the day fixed by its

order why he should not do so.

1. The question is whether a writ of mandamus may be predicated upon such a return. The

rule established by a number of decisions of this court relative to cases in which the writ of

mandamus may issue is that before the relator can obtain the writ he must establish sufficient

facts to show that he has a legal right to have something done by the inferior tribunal which itKDVUHIXVHGWRGR


has refused to do. Rev. Laws, 5695; State v. Wright, 10 Nev. 174.

2. The return does not show that the judge refused or denied to the petitioner the right to

further prosecute his action as a poor person, but that in the judgment of the court, upon the

showing made, plaintiff had failed to bring himself within the rule of the common law, if the

same, as contended for by petitioner, prevails in this jurisdiction. As the judge had the power

to hear the motion, his determination upon the hearing thereof was necessarily a judicial act.

It is difficult to perceive how mandamus will lie to review his action. To grant the writ would

be in effect to review a judicial decision, which is not the function of mandamus.It is argued that the ruling complained of was such a flagrant abuse of discretion as that it

amounts to the petitioner being precluded from the enjoyment of his legal right to further

prosecute his action as a poor person. Adopting the language of this court as used in State v.

District Court, 40 Nev. 163, 161 Pac. 510, the respondent assumed jurisdiction, entertained

the motion, heard the evidence in support of petitioner's contention, and rendered a

determinative judgment based upon the showing made, and either a correct or incorrect

interpretation of the law applicable to the specific question in furtherance of which the

showing was made. In that case McCarran, J., asked:

What more could the lower court do if the writ were to issue now? Would it reverse its

judgment entered upon the showing made? Would it take a different view of the law arisingupon the case? Is it the function of the writ of mandate to review errors of discretion or

judgment and reverse decisions based thereon?

Speaking for the court, the learned judge said:

An answer to such query is found in the established principles of law applicable to the

function of this extraordinary writ, which my be stated thus: The acts or duties, the

performance or nonperformance ofZKLFKUHVWVLQZKROHRULQSDUWRQWKHGLVFUHWLRQRUMXGJPHQWRIWKHLQIHULRUWULEXQDOERDUGRURIILFHUZLOOQRWEHUHTXLUHGE\WKHZULWRI


22/323

PDQGDPXV


which rests in whole or in part on the discretion or judgment of the inferior tribunal, board, orofficer, will not be required by the writ of mandamus.

The question underlying this proceeding is whether, in the absence of statute, the petitioner

has the right to proceed with the prosecution of his action in the district court without the

payment in advance of the legal fees. We merely state the question in order that it may not be

thought by our conclusion that we decide it.

Our conclusion is that return to the order to show cause does not show facts upon which a

peremptory writ will lie.

The petition for the writ is therefore denied, and the proceeding dismissed.

____________

46 Nev. 30, 30 (1922) Smith v. North Am. Accident Ins. Co.

[No. 2516]

ETTA M. SMITH and GEORGE F. SMITH, as Her Husband, Respondents, v. NORTH

AMERICAN ACCIDENT INSURANCE COMPANY (a Corporation), Appellant.

[205 Pac. 801]

1. InsuranceGeneral Allegation of Performance of Condition Precedent Is Sufficient againstDemurrer.

In an action on an accident insurance policy, a general averment that plaintiff had done all things

necessary to perfect her claim against the defendant and had demanded payment, which the company

refused to make, is sufficient pleading of performance of the conditions precedent as against a general

demurrer.

2. InsuranceParties to Accident Policy Can Stipulate what Representations Shall BeMaterial without Making Them Warranties.

The law does not forbid parties to a contract for accident insurance, as it does in life insurance, to

determine what fact or representations shall be deemed material, and that may be done without putting

the representations on a footing with warranties.

3. InsuranceWhether Parties Have Made Statements in Application Material to Risk isQuestion for Court.

Whether the parties to an accident insurance contract have made statements in the application, which

became a part of the policy, material to the risk, is a question of law for the court to be determined by an

interpretation of the contract, resolving any doubt in favor of the insured.


23/323


4. InsuranceMateriality of Representations Depending on Inferences from Facts Is for theJury.

Where the determination of the materiality of representations or statements in an application for

insurance depends upon inferences to be drawn from facts and circumstances proved, the question ofmateriality is one for the jury.

5. InsurancePutting Representations in Form of Answers to Questions Indicates They areMaterial.

Where the statements in an application for accident insurance are in the form of written answers made

to written questions, the form indicates that the parties deem the matter inquired about to be material.

6. InsuranceApplication for Accident Insurance Held to Make Representations as to Disease

Material.

Where an application for accident insurance contained statements in the form of answers to questions

which the parties stipulated should bar recovery under the policy if the statements were false and were

material to the acceptance of the risk or the hazard assumed, or made with intent to deceive, the false

answer that applicant was not afflicted with tuberculosis was material as a matter of law, and defeatsrecovery on the policy.

7. InsuranceApplicant Must Fairly Answer Questions.An applicant for accident insurance should observe the utmost good faith, deal honestly and fairly

with the company as to all material facts inquired about in the application as to which he had or should be

presumed to have had knowledge, and make a full answer without evasion, suppression, a

misrepresentation, or concealment of material facts.

8. InsuranceIssuance of Policy Waives Incomplete Answer in Application.Where a question appears on the face of an application for insurance not to be answered at all or to be

incompletely answered, and insurer issues policy without further inquiry, it thereby waives the

incompleteness of, or failure to, answer.

9. InsuranceQuestion as to Diseases Not Mentioned Held to Include Specific Diseases Not

Completely Disclosed.

Where one question in an application for accident insurance inquired about several diseases and was

answered merely by a statement as to certain disability, a subsequent question, as to whether the applicant

had any disease except as therein stated, was not limited to diseases not included in the preceding

question, so as to render the policy valid on the theory that the answer to the former questions was

incomplete only and that the negative answer to the latter question was correct, though applicant was

suffering from one of the enumerated diseases.

Appeal from Second Judicial District Court, Washoe County;EdwardF.Lunsford, Judge.


Action by Etta M. Smith and her husband against the North American Accident Insurance

Company. Judgment for plaintiffs, and defendant appeals. Reversed. Petition for rehearing

denied.

Frederick L. Berry, for Appellant:

The judgment should be reversed. This is a case where the applicant deliberately misled


24/323

the insurer; and, although juries and courts are not favorably inclined toward insurance

companies, where a flagrant injustice has been done, due and faithful consideration should be

given to the facts and the law applicable thereto.

The application for insurance being considered as a part of the policy, it follows that the

policy will be avoided where the applicant has made in his application false statements as to

matters material to the risk, such as the mental and physical condition of the applicant, hisstate of health, his age, occupation, salary or earning capacity, or the existence vel non of

other insurance. 1 C. J. 420. Where a copy of the application is set out in the policy, it is the

duty of the insured to know that the representations therein contained, and which constitute

the inducement for the issuance of the policy, are true. Bonewell v. North American A.I.

Co., 167 Mich. 274. Representations are distinguishable from warranties; the latter must be

literally fulfilled. Van Cleave v. Union Gas Co., 82 Mo. App. 668.

Where the insurer is insuring against injury and death by accident, the physical endurance

and resistance of the applicant becomes most material. As a matter of law, a

misrepresentation as to age is so far material that it bars the right of recovery. 2 Joyce, Ins., 2d

ed., par. 1992; U.B.M.A. Soc. v. White, 100 Pa. St. 12; Hunt v. S.C.C.F., 64 Mich. 671.

Suppression of the facts constitute a fraud on the part of the applicant, which is andcontinues to be enforced and voidable. Maddox v. S.M.L. Ins. Assn., 6 Ga. App. 681;

Westphal v. Metropolitan L.I. Co., 151 3DF-R\FH,QVSDU


Pac. 169; 3 Joyce, Ins., par. 2002; Conn. Ins. Co. v. Trust Co., 112 U.S. 250.

If representations are calculated to mislead or deceive, they are material. Babbit v. L.L. &

G. Ins. Co., 66 N. C. 70; 3 Joyce, Ins. 3d ed., sec. 1896; Hoffman v. Legion of Honor, 35 Fed.

252. What is material to the risk must be truly represented. Tyree v. Virginia F. & M. Ins.Co., 55 W. Va. 63; Nicoll v. Amer. Ins. Co., Fed. Cas. 10259. A positive representation of a

material fact must be full and true, and if it is evaded and not full and complete and materially

untrue, the policy is avoided. 3 Joyce, Ins., 2d ed., par. 1927. Moses v. Delaware Ins. Co.,

Fed. Cas. 5782; Carpenter v. Amer. Ins. Co., Fed. Cas. 2248; Storey v. Union Ins. Co., 15

Am. Dec. 634.

The test is, Did the fact represented or misrepresented operate to induce the insurer to

accept the risk? If it offers a false inducement, whereby the insurer is misled or deceived, the

representation or misrepresentation is material. 3 Joyce, Ins. 2d ed. 1892; Haapa v.

Metropolitan L.I. Co., 150 Mich. 467.

Where a copy of the application is set out in the policy, it is the duty of the insured toknow that the representations therein contained, and which constitute the inducement for the

issuance of the policy, are true. 1 C.J. 420; Bonewell v. North American A.I. Co., 167 Mich.

274; Maryland Casualty Co. v. Morrow, 52 L.R.A. (N.S.) 1213.

SardisSummerfield, for Respondent:

In all contracts of insurance where the statements contained in the application for

insurance which are material to the risk of hazard or assumed by the insurer are made the


25/323

basis of the contract of insurance the interrogative statements of the insurer are as much a part

of the contract of insurance as are the statements in reply thereto. It is undoubtedly

competent for the parties to decide for themselves and beforehand what facts or

representations shall be deemed material, and ZKHQWKH\KDYHVRDJUHHGWKHDJUHHPHQWSUHFOXGHVDOOLQTXLU\XSRQWKHVXEMHFW


when they have so agreed, the agreement precludes all inquiry upon the subject. Gerhauser

v. N.B. & M. Co., 7 Nev. 174; Phoenix Ins. Co. v. Raddin, 30 U.S.L. Ed. 646; 1 Bacon, L. &

A. Ins., 4th ed., sec. 263; 2 Clement, Fire Ins. 21; 3 Joyce, Ins., 2d ed., 3086.

Where materiality has not been fixed by contract, or where or when it is not obvious from

an inspection of the pleadings or from the undisputed evidence, it is a question for the jury to

determine. Insurance Co. v. Zeitinger, 48 N. E. 179; Lander v. Safety Ins. Co., 42 Atl. 916;

Davis v. AEtna Ins. Co., 39 Atl. 902; Boesk v. Ins. Co., 78 N. Y. Supp. 748; Garrison v. Ins.Co., 28 Atl. 8; Conn Ins. Co. v. Colo. Co., 116 Pac. 154; 2 Clement, Ins. 21; 5 Joyce, Ins.

6067.

Where upon the face of the application a question appears to be not answered at all, or to

be imperfectly answered, and the insurer issue a policy without further inquiry, they waive the

want or imperfection in the answer, and render the omission to answer more fully

immaterial. Phoenix L.I. Co. v. Raddin, 120 U.S. 183; AEtna L.I. Co. v. France, 91 U.S. 23;

Manhattan L.I. Co. v. Willis, 60 Fed. 242; Hall v. People's Ins. Co., 6 Gray, 185; Carson v.

Jersey Ins. Co., 54 N.J.L. 300; Armenia Ins. Co. v. Paul, 106 Pa. St. 520; Lorillard Ind. Co. v.

McCullough, 21 Ohio St. 176.

If the insured fairly states or represents an honest opinion or belief, it is not such

misrepresentation as will void the policy, when the statement does not amount to a warranty.2 Clement, Ins. 20; Mutual Ins. Co. v. Gordon, 12 N. E. 747; Susquehanna Ins. Co. v. Staats,

102 Pa. St. 525; Fisher v. Crescent Ins. Co., 33 Fed. 544.

There can be no concealment predicated on an unanswered question in a written

application, accepted by the insurance company, or if in making inquiries the company does

not question the insured upon the specific matter or as to matter not covered by an

incomplete, ambiguous or uncertain answer. 2 Clement, ,QV


Ins. 5; Parker v. Otsego Ins. Co., 62 N. Y. Supp. 190; Short v. Homes Ins. Co., 90 N. Y. 16;

Clawson v. Citizens' Ins. Co., 121 Mich. 591. Warranties are not favored in law. Masons

Union Co. v. Brodemon, 50 N.E. 493; Modern Woodmen v. Shyrock, 12 Cush. 416; Daniels

v. Hudson Ins. Co., 12 Cush. 416; Vose v. Eagle Ins. Co., 6 Cush. 47.

A policy of accident insurance must, if possible, be so construed as to give effect to all of

the language used. Unless a statement amounts to a warranty, the general rule is that a policy


26/323

of accident insurance is not avoided by a false or erroneous statement not material to the risk.

Statements by the insured in his application, whether regarded as warranties or merely as

representations, should be given a reasonable interpretation, and not be strictly construed

against the insured in order to defeat the policy. The materiality or truth of the statements in

the application is usually a question for the jury to determine. Statements in the application

expressing the applicant's understanding of what will be the effect of the insurance arestatements of law and not of fact, and hence cannot control the legal construction of the

policy afterward issued and accepted. It is well settled as a general rule that a policy of

accident insurance is to be liberally construed as against the insured, although strictly

construed against the insurer. 1 C .J. 397-518.

By the Court, Sanders, C. J.:

This action was brought to recover $1,878 on an accident insurance policy for the death of

A. C. Webb, who, while in the performance of his duties as a mail-carrier in the employ of

the United States postal service, on the 14th day of February, 1920, sustained an injury on an

elevator being operated in the Odd Fellows Building, in the city of Reno, which injury

necessitated the amputation of his left foot, below the knee. The operation was performed onthe day after the injury, and within a few hours thereafter the insured died.


The complaint alleges the making of the policy; that the plaintiff Etta M. Smith is the

daughter of the insured, and the beneficiary (her husband, George F. Smith, is made a party

pro forma); the consideration paid for the policy; the agreement to pay the principal sum of

$1,700, the sum of $25 for the surgical operation, and the further sum of 1 per cent of the

principal amount for each consecutive month for which the insurance should be carriedwithout default in the payment of the annual premium, and not exceeding 60 per cent of said

principal sum; that the plaintiff had caused to be done all things necessary to perfect her claim

and claims against the defendant for the recovery of the benefits accruing by reason of the

contract of insurance; that the benefits accruing from the 1 per cent of the principal sum

amounted to $153; that she demanded from the defendant payment of the amounts specified,

a total of $1,878, which was refused; that the defendant owed her said sum, and she demands

judgment therefore.

1. The defendant demurred to the complaint, upon the ground that it is not a sufficient

pleading of conditions precedent, in that it does not appear therefrom that a request or

demand was ever made upon the defendant for the sum for which judgment is demanded. Thegeneral averment that the plaintiff had done all things necessary to perfect her claim and

claims against the defendant, and the general averment of a demand and refusal of the

company to pay, makes the complaint entirely sufficient as against a general demurrer. Rev.

Laws, 5071; Richards v. Travelers' Ins. Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455.

The defendant by its third amended answer admits the issuance of the policy, which bears

date of the 12th day of May, 1919, and to avoid its payment set up numerous defenses,

averring that both by misrepresentation of facts, stated in the application and policy to be true,


27/323

and by concealment of facts material to the ULVNWKHSROLF\ZDVDYRLGHGDQGIRUIXUWKHUDQVZHUGHQLHVWKDWWKHGHDWKRIWKHLQVXUHGZDVWKHUHVXOWRIDQ\ERGLO\LQMXULHVRULQMXU\HIIHFWHGGLUHFWO\DQGLQGHSHQGHQWO\RIDOORWKHUFDXVHVWKURXJKH[WHUQDOYLROHQWDQGDFFLGHQWDOPHDQVEXWLQWKLVFRQQHFWLRQDYHUVWKDWWKHGHDWKRIWKHLQVXUHGZDVFDXVHGGLUHFWO\DQGSUR[LPDWHO\E\WKHGLVHDVHRIDFWLYHSXOPRQDU\WXEHUFXORVLVZLWKDUWHULRVFOHURVLVIURPZKLFKWKHLQVXUHGZDVVXIIHULQJDWWKHWLPHKHUHFHLYHGWKHLQMXU\

VWDWHGLQWKHFRPSODLQWWKDWQHFHVVLWDWHGWKHDPSXWDWLRQRIKLVOHIWIRRWEHORZWKHNQHH


risk, the policy was avoided; and for further answer denies that the death of the insured was

the result of any bodily injuries or injury, effected, directly and independently of all other

causes, through external, violent, and accidental means; but in this connection avers that the

death of the insured was caused directly and proximately by the disease of active pulmonary

tuberculosis, with arteriosclerosis, from which the insured was suffering at the time he

received the injury stated in the complaint, that necessitated the amputation of his left foot,below the knee. The plaintiff interposed a demurrer to the defenses, and for demurrer, among

other grounds, alleged that the defense that the insured suppressed, concealed, and

misrepresented facts material to the risk in answer to question 14 of the application shows

that said answer was imperfect and incomplete, and that it became and was the duty of the

insurer to inquire further of the insured with respect to the disease of tuberculosis, and that,

having issued the policy, it waived said imperfections or incompleteness of the answer, and

that therefore the defenses do not state facts sufficient to constitute a defense. The demurrer

was overruled. The correctness or incorrectness of the ruling is not before us. Any argument,

therefore, upon it must be ignored. The plaintiff replied, and for reply denied each and all of

the new matter contained in the answer. A trial before a jury resulted in a judgment in favor

of the plaintiff for the sum demanded in the complaint, and the cause is brought here uponappeal from said judgment, as well as from an order denying to the defendant a new trial.

Upon the trial the defendant introduced in evidence the application and policy. The

opening words of the policy are as follows:

In consideration of the agreements and statements contained in the application, a copy of

which is indorsed hereon and made a part of this contract, the policy fee RIDQGSUHP


of $5 and prem. $2.10, the payment of the premium of two and 10/100 * * * dollars on orbefore the first day of June, 1919, and the further payment of the last mentioned sum on or

before the first day of each month thereafter, _______ does hereby insure the person

(hereinafter called the insured) whose name appears after the words signature of applicant' in

said copy of application, by occupation postal service mail-carrier, using bicycle in class C of

said company, subject to the agreements, limitations and provisions of this policy, promises

to pay benefits as hereinafter set forth for loss caused by accidental means, as follows:


28/323

Principal sum first year _____ dollars ($1,700.00).

Monthly accident indemnity _____ dollars ($70.00).

The questions and answers in the application, material to the controversy here, are as

follows:

I hereby apply for insurance in the North American Accident Insurance Company and for

that purpose make the following statement:1. Do you understand that the insurance, if granted, is to be based upon the following

statements and that the falsity of any statement herein shall bar the right to recovery if any

such statement is material either to the acceptance of the risk or the hazard assumed by the

company or made with intent to deceive? Yes.

2. What is your full name? Alonzo C. Webb. * * *

3. What was your age at last birthday? 51 years.

4. * * *

5. * * *

6. * * *

Documents

Nevada Reports 1922-1923 (46 Nev.).pdf