Nevada Reports 1937-1938 (58 Nev.).pdf

7/28/2019 Nevada Reports 1937-1938 (58 Nev.).pdf

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58 Nev. 1, 1 (1937)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

VOLUME 58

____________

58 Nev. 1, 1 (1937) Los Angeles v. District Court

THE CITY OF LOS ANGELES, CALIFORNIA, A Municipal Corporation, and

DEPARTMENT OF WATER AND POWER OF LOS ANGELES, Petitioners, v. THE

EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA and HON.WILLIAM E. ORR, Judge Thereof, Respondent.

No. 3187

May 6, 1937. 67 P. (2d) 1019.

1. Appearance.In action against foreign municipal corporation wherein municipality appeared specially and moved to

quash service of summons on jurisdictional grounds, order extending time heldnot to convert special

appearance into a general appearance as against contention that municipality by availing itself of the

extension made a general appearance, irrespective of whether extension of time was made at instance of

municipality or by court on its own motion.

2. Prohibition.In original proceeding for writ of prohibition to restrain district court from proceeding with action against

foreign municipal corporation after district court had denied municipality's motion to quash service of

summons, failure of municipality to take an exception to ruling of district court denying motion to quash

heldimmaterial since lack of an objection or exception in district court did not affect jurisdiction of

supreme court in the original proceeding or affect its discretion.


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3. Prohibition.Appeal from order denying foreign municipal corporation's motion to quash service of summons where

municipality had made a special appearance therefor heldno to afford a plain, speedy, and adequateremedy in the ordinary course of law so as to preclude issuance of writ of prohibition to restrain district

court from proceeding with action.

4. Corporations.Foreign municipal corporation which had constructed an electric transmission line on public lands of the

United States located within state heldnot foreign corporation or incorporated company within general

statutes providing for service of process on nonresident companies owning property or doing business

within state, and hence service of summons on secretary of state in accordance with general statutes gave

lower court no jurisdiction over municipal corporation (Comp. Laws, sec. 8581; sec. 8579, as amended by

Stats. 1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, 43 U.S.C.A.

sec. 617-617t).

The term corporations is never construed to include municipal corporation. The term

company may include a corporation but not a municipality.

5. Statutes.Supreme Court should not speculate beyond the reasonable import of words used in statutes.

6. Corporations.Foreign municipal corporation which had constructed an electric transmission line on public lands of

United States located within state heldnot subject to service of summons under general statute applicable

to service of process on nonresident companies owning property or doing business within state on theory

that it came into state in its proprietary capacity (Comp. Laws. sec. 8581; sec. 8579, as amended by Stats.

1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, secs. 617-617t).

7. Municipal Corporations.Statute providing that any municipal corporation entering state for purpose of doing business shall be

subject to laws of state relative to taxation, police regulations, and all laws specifically applicable toparticular business in which municipalities may engage that are applicable to foreign corporations doing

like business in state heldnot to authorize service of summons on foreign municipal corporation which

had constructed an electric transmission line on public lands of United States located within state in like

manner as on foreign corporations (Comp. Laws, sec. 8581; Stats. 1933, c. 107, sec. 4; Boulder Canyon

Project Act, 43 U.S.C.A. secs. 617-617t).

8. Appeal and Error.Rule that a point made for the first time on appeal will not EHFRQVLGHUHGE\UHYLHZLQJFRXUW

HPEUDFHVRQO\QRQMXULVGLFWLRQDOTXHVWLRQV


be considered by reviewing court embraces only nonjurisdictional questions.

9. Prohibition.Rule that writ of prohibition will not issue to an inferior court unless attention of court whose proceedings

it is sought to arrest has been called to alleged lack or excess of jurisdiction, is not applicable where lack of

jurisdiction is apparent on face of proceedings.

10. Prohibition.Whether petitioner for writ of prohibition to restrain district court from proceeding with action after


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overruling motion to quash service of summons had complained of insufficiency or irregularity of service

on its motion in district court heldimmaterial in considering application for writ of prohibition where

insufficiency of service was due to lack of jurisdiction apparent on face of proceedings.

Original proceeding by City of Los Angeles, Calif., a municipal corporation, and another

for a writ of prohibition directed to the Eighth Judicial District Court of the State of Nevada

and the Honorable William E. Orr, judge thereof. Peremptory writ of prohibition issued asprayed.

Ray L. Chesebro, City Attorney; S.B. Robinson, Chief Assistant City Attorney; Gilmore

Tillman, Deputy City Attorney; G. Ellsworth Meyer, Deputy City Attorney; andA.S.

Henderson, of Counsel, for Petitioners:

It would be an anomaly indeed if a court not having jurisdiction could acquire it by

granting an extension of time on its own motion. Such a rule would be as illogical as holding

that by erroneously denying a motion to quash service the court could acquire jurisdiction.

Such, of course, is not the rule. Pacific State, etc. v. Second Judicial District Court, 48 Nev.53, 226 P. 1106.

We deem it elementary that prohibition is an original proceeding in this court, and, of

course, it follows that whether there was an exception taken in another court, or one allowed

by statute, is immaterial.

Appeal does not lie from an order refusing to quash service. Klepper v. Klepper, 51 Nev.

145, 271 P.336.

Prohibition will lie if an appeal from a judgment PLJKWZDLYHWKHODFNRIMXULVGLFWLRQ


might waive the lack of jurisdiction. Chaplin v. Superior Court, 81 Cal. App. 367, 253 P. 954.

Prohibition is the proper remedy to protect a defendant from the expense of an unnecessary

trial. Evans v. Superior Court, 107 Cal. App. 372, 290 P. 662; Dep't. of Public Works v.

Superior Court, 197 Cal. 215, 239 P. 1076; Davis v. Superior Court, 184 Cal. 691, 195 P.

390.

The Nevada statutes do not confer jurisdiction over a municipal corporation by service on

the secretary of state. Secs. 7579 and 8581 N.C.L. Statutes providing for constructive or

substituted service must be strictly construed. Perry v. District Court, 42 Nev. 284, 174 P.

1058; State v. State Bank, 37 Nev. 55, 139 P. 505.

A municipal corporation is not within the term corporation. City of Pasadena v. RailroadCommission, 183 Cal. 526, 192 P. 25.

A municipal corporation does not become a private corporation by selling electrical energy

or discharging proprietary functions. City of Pasadena v. R.R. Comm., supra; Jochimsen v.

City of Los Angeles, 54 Cal. App. 715, 202 P. 902; L.A. Gas & Elec. Co. v. Dep't. of Public

Service of the City of Los Angeles, 52 Cal. App. 27, 197 P. 962.

A municipal corporation is not included in the general words of a statute. Mayrhoffer v.


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Bd. of Education, 89 Cal. 110, Kubach v. McGuire, 199 Cal. 215, 248 P. 676; City of

Inglewood v. County of Los Angeles, 207 Cal. 697; City of Los Angeles v. County of Los

Angeles, 88 Cal. App. Dec. 228.

Harold M. Morse, C.D. Breeze and Guy E. Baker, for Respondents:

Prohibition will not lie where there is a plain, speedy, and adequate remedy in the ordinary

course of law. Sec. 9256 N.C.L.

Where petitioners requested, in their appearance in the respondent court, that the action be

dismissed as to WKHPWKHLUDSSHDUDQFHZDVDQGLVDJHQHUDODSSHDUDQFHDQGWKH\DUHLQWKDWFRXUWIRUDOOSXUSRVHV


them, their appearance was and is a general appearance, and they are in that court for allpurposes. Webster v. Crump, 246 P. 243; Clawson v. Boston Acme Mines Dev. Co. et al.,

269 P. 147, 59 A.L.R. 1318; 2 Am. Jur. 793, sec. 19, n. 19; Elliott v. Lawhead (Ohio), 1 N.E.

577; Daily et al. v. Foster (N.M.), 128 P. 171.

The procuring by a defendant or the granting of extension of time to plead by a court, if

acted upon by a defendant, is a general appearance. It is immaterial at whose request or upon

whose motion the court made the ruling. Longcor v. Atlantic Terre Cotta Co. (Minn.), 142

N.W. 310.

We believe it well-settled law that an objection to the jurisdiction of the trial court must be

raised in the first instance in the trial court and cannot otherwise be made a basis for a writ of

prohibition. 22 R.C.L. 27, sec. 27; Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121;

Grinbaume v. Superior Court, 199 Cal. 741, 209 P. 1005.It was necessary that petitioners preserve an exception to the ruling of the trial court

denying their motion to quash the service of summons. Secs. 8871 and 8874 N.C.L.; Burden

et al. v. Stephens (Okla.), 49 P. (2d) 1098.

When a municipality engages in the business of furnishing electric lights, water, etc., to the

public, it is not then discharging or exercising governmental functions or power, but is, quoad

hoc, exercising proprietary or business powers, and as to such business it is governed by the

same rules of law which are applicable to ordinary business corporations engaged in like

businesses. 6 McQuillin (2d ed.), p. 903, n. 44; Athens v. Miller (Ala.), 66 So. 702; Bennett

v. City of Portland (Ore.), 265 P. 433.

Petitioners did not complain in the lower court of any insufficiency or irregularity in themanner of making the service, which service was made in strict accordance with the

provisions of sec. 8581 N.C.L. Stats.


1933, ch. 107, sec. 4, definitely defines the legal character of petitioners, and places them in


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the same category as any other foreign corporation doing business in this state.

OPINION

By the Court, Ducker, J.:

This is an original proceeding in prohibition.The petition, among other matters, shows: That petitioner City of Los Angeles, Calif., is a

municipal corporation organized and existing under and by virtue of the constitution and laws

of the State of California and has its domicile in the county of Los Angeles, State of

California.

That petitioner Department of Water and Power of the City of Los Angeles is a department

of the city of Los Angeles, a municipal corporation, and is organized and existing under and

by virtue of the constitution and laws of the State of California.

That petitioners under and in accordance with the Boulder Canyon Project Act of the

United States (43 U. S. C. A. secs. 617-617t), have constructed on the public lands of the

United States within the boundary of the State of Nevada an electrical transmission line

connecting the generating plant of the United States located at Boulder Dam with the electricsystem of the city of Los Angeles in said city.

That on the 16th day of September 1935, Mamie Jackson, a citizen and resident of the

State of Georgia, caused to be filed in the above-entitled court a complaint, entitled, Mamie

Jackson, as Administratrix of the Estate of William B. Bush, deceased, Plaintiff, v. Daniel

Nicoll, Department of Water and Power of the City of Los Angeles, a municipal corporation,

and Bureau of Power and Light of the City of Los Angeles, a municipal corporation,

Defendants, in which plaintiff claimed damages because of the alleged wrongful death of

said deceased, in an automobile collision between an automobile being operated by him, and

an automobile being RSHUDWHGE\GHIHQGDQW'DQLHO1LFROODQGZKLFKLWZDVDOOHJHGZDV

RZQHGDQGUHJLVWHUHGLQ&DOLIRUQLDE\VDLG'HSDUWPHQWRI:DWHUDQG3RZHU


operated by defendant Daniel Nicoll, and which it was alleged was owned and registered in

California by said Department of Water and Power.

That on the 31st day of March 1936, an alias summons was issued in said action, a copy of

which, together with a copy of said complaint, was delivered to and left with the secretary of

state, or deputy secretary of state of Nevada, on the 22d day of April 1936.

That neither of petitioners was ever personally served with said summons or complaint,not has any writ of attachment been issued or served, not has any order for, or publication of,

summons ever been made in said action.

That on the 6th day of June 1936, petitioner Department of Water and Power appeared

specially, and not generally, and moved respondents to quash said pretended service of

summons and complaint, for the reason that the complaint showed that said department was a

municipal corporation of the State of California, and the court had no jurisdiction over said

department, which motion was set for hearing before respondents, at which said


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administratrix did appear by her attorneys of record and oppose the same on its merits. That

respondents denied said motion to quash.

That petitioners have not filed any answer, demurrer, or notice of appearance in said action

and have no plain, speedy, or adequate remedy at law by appeal or otherwise.

The petition also recites that respondents, unless restrained, will seek to exercise

jurisdiction over petitioner Department of Water and Power in said action and deprivepetitioners of their right to due process of law under the fourteenth amendment to the

constitution of the United States, and the equal protection of the laws under said amendment.

It is further alleged that the exercise of said jurisdiction by respondents is in violation of

article 1, section 8, of said constitution.

Upon the application the alternative writ of prohibition issued. Respondents interposed a

demurrer to the SHWLWLRQDQGPDGHUHWXUQDQGDQVZHUWRWKHZULW


petition and made return and answer to the writ. Annexed to the latter is a certified copy of all

the pleadings, records, files, and minutes of the court in the action alleged in the petition.

Relative to the petitioner Department of Water and Power it is alleged in said complaint as

follows:

That at all times hereinafter mentioned, the defendant, Department of Water and Power of

the City of Los Angeles, was, and now is, a municipal corporation, duly created, organized

and existing under and by virtue ofthe laws of the State of California, and at all times had,

and now has, charge, superintendence and control of works for providing and supplying said

city and its inhabitants and others with electrical energy for light, heat, power and other

purposes, and at all said times was, and now is, constructing and erecting an electrical power

transmission line and other facilities in its proprietary capacity in the said County of Clark,State of Nevada, for the transmission of electrical power and energy from the Boulder Dam in

said county and state to the City of Los Angeles for the purpose of supplying said city and its

inhabitants and others with electrical power and energy.

It is alleged in the complaint that said Daniel Nicoll at the time of said collision, which

occurred on a public highway, in said Clark County, was an employee of the other defendants

and acting within the scope of his employment in connection with the erection and

construction of said power transmission lines and other facilities.

The return and answer show that the default of defendant Daniel Nicoll was duly entered

in said action and that service of an alias summons issued therein, a copy of which, together

with a copy of the complaint, was, as alleged in the petition, delivered to and left with thesecretary of state or a deputy secretary of state of the State of Nevada. In connection with

such delivery, it is alleged that said secretary of state was served with SURFHVVLQVDLGDFWLRQ

LQWKHPDQQHUDQGIRUPDVE\ODZSURYLGHG



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process in said action in the manner and form as by law provided.

In connection with respondents' denial of the motion to quash the summons, as stated in

the petition, it is denied in the return and answer that the appearance of the petitioner

Department of Water and Power, on said motion, was a special appearance, and alleged that

the same was a general appearance. The return and answer also show that the motion to quash

was made upon the ground that said department is a municipal corporation of California and

that said action can only be brought in the courts of that state.

Counsel for respondents did not present any argument as to the demurrer and we are of the

opinion that it is without merit. It is overruled.

Petitioners contend that being municipal corporations of another state, respondents are

without jurisdiction of them, (1) because municipal corporations can be sued only in the state

of their situs, and (2) because the Nevada statutes do not confer jurisdiction over a municipal

corporation by service on the secretary of state.

1. We will first dispose of some objections made by respondents. They contend petitioner

Department of Water and Power made a general appearance on the motion to quash. We think

not. No relief was sought by the motion other than on jurisdictional grounds. In fact, counselfor respondents in the argument in this court abandoned the position that the appearance on

the motion itself was general, but contend that an order of the court made when the motion to

quash was submitted for decision has that effect. The order relied on reads:

The court at this time stated it would extend counsel for the defendants ten days after the

decision of said motion, in which to further plead, if necessary.

Whether the extension of time was made at the instance of petitioner or by the court on its

own motion does not appear.

Respondents contend, however, that this is immaterial; DQGWKDWSHWLWLRQHUE\DYDLOLQJLWVHOIRIWKHH[WHQVLRQPDGHDJHQHUDODSSHDUDQFH


and that petitioner, by availing itself of the extension, made a general appearance. The case of

Longcor v. Atlantic Terra Cotta Co., 122 Minn. 245, 142 N. W. 310, 312, cited in support of

this contention, does not sustain it, but holds to the contrary. In that case a petition and

motion stated a special appearance for the purpose of excepting to the service of summons

and complaint were presented and the court made an order for plaintiff to show cause why the

same should not be set aside. The order also enlarged the time for answering in the event of

the service being held sufficient. It does not appear whether the extension of time to answerwas made at the request of defendant or on the court's own motion. The supreme court said

this was immaterial, and held there was no general appearance. The court also said:

* * * when objection to the jurisdiction is clearly made, the mere fact that he [defendant]

is given and accepts an enlargement of the time to answer until his motion is disposed of

cannot be held to be inconsistent with such objection, nor can it be said that he thereby

assumed that jurisdiction exists. Any other rule would be altogether too technical for the

practical administration of justice.


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We are of the same opinion and hold that the order extending time in the instant case did

not convert the special appearance into a general one.

2. Another objection is that petitioners did not take an exception to the ruling of the court

denying the motion to quash the summons. We think the failure to take exception is

immaterial. This is an original proceeding and the lack of objection or exception in the lower

court could in nowise affect the jurisdiction of this court, nor do we perceive why it shouldinfluence our discretion. The case of Burden et al. v. Stephens, 174 Okl. 312, 49 P. (2d) 1098,

cited by respondents was not an original proceeding. It is not in point or analogous.

3. Respondents state in their brief that prohibition ZLOOQRWOLHZKHUHWKHUHLVDSODLQVSHHG\DQGDGHTXDWHUHPHG\LQWKHRUGLQDU\FRXUVHRIODZ


will not lie where there is a plain, speedy, and adequate remedy in the ordinary course of law.

They present no argument to show that such a remedy is or was available to petitioners, butcontent themselves with the above statement and citation of the statute so providing. There is

no such remedy by appeal from the order denying the motion to quash, Klepper v. Klepper,

51 Nev. 145, 271 P. 336, and we are aware of none with the statutory description.

4, 5. Has the lower court jurisdiction of the petitioner Department of Water and Power?

Unless the service of summons on the secretary of state constituted service on that

department, the court has no jurisdiction, for no other service is claimed. There is no statute

in this state providing specifically for service of summons on a foreign municipal corporation.

If such service is contemplated, it must be found within the intention of sections 8579, 8580,

and 8581 of the Nevada Compiled Laws. The former, as amended, Stats. 1935, c. 20, p. 26,

reads in part:

The summons must be served by delivering a copy thereof attached to a certified copy ofthe complaint as follows: * * * 2. If the suit is against a foreign corporation, or a non-resident

joint-stock company or association, doing business and having a managing or business agent,

cashier, or secretary within this state; to such agent, cashier, or secretary, or to an agent

designated in section 82: or in the event no such agent is designated as provided in section 82,

to the secretary of state or the deputy secretary of state, as provided in section 83.

Section 8580 prescribes that :

Every incorporated company or association created and existing under the laws of any

other state, or territory, or foreign government, or the government of the United States,

owning property or doing business in this state, shall appoint and keep in this state an agent

upon whom all legal process may be served for such corporation or association. Suchcorporation shall file a FHUWLILFDWHSURSHUO\DXWKHQWLFDWHGE\WKHSURSHURIILFHUVRIVXFKFRPSDQ\ZLWKWKHVHFUHWDU\RIVWDWHVSHFLI\LQJWKHIXOOQDPHDQGUHVLGHQFHRIVXFK

DJHQW



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certificate, properly authenticated by the proper officers of such company, with the secretary

of state, specifying the full name and residence of such agent.

The latter section provides:

If any such company shall fail to appoint such agent, or fail to file such certificate for

fifteen days after a vacancy occurs in such agency, on the production of a certificate of the

secretary of state showing either fact, which certificate shall be conclusive evidence of thefact so certified to be made a part of return of service, it shall be lawful to serve such

company with any and all legal process, by delivering a copy to the secretary of state, or, in

his absence, to any duly appointed and acting deputy secretary of state, and such service shall

be valid to all intents and purposes: * * *provided,further, that before such service shall be

authorized, the plaintiff shall make or cause to be made and filed, an affidavit setting forth the

facts, showing that due diligence has been used to ascertain the whereabouts of the officers of

such corporation, and the facts showing that direct or personal service on, or notice to, such

corporation cannot be had; and provided further, that if it shall appear from such affidavit

that there is a last-known address of such corporation, or any known officer thereof, the

plaintiff shall, in addition to and after such service on the secretary of state, mail or cause to

be mailed to such corporation, or to such known officer, at such address, by registered mail, acopy of the summons and a certified copy of the complaint, and in all such cases the

defendant shall have forty days from the date of such mailing within which to appear in said

action. This section shall be construed as giving an additional mode and manner of serving

process, and as not affecting the validity of any other valid service.

The return and answer show that the plaintiff complied with the latter section in all

respects, and respondents therefore claim that a valid service of summons was effected on

petitioner Department of Water and Power.


Are the words foreign corporations and incorporated company found in the foregoing

sections meant to include foreign municipal corporations? We think they will not bear that

construction. The word corporations is never construed to include municipal corporations.

It is uniformly conceded that the general statute regulating service upon corporations has no

application to municipal corporations, and in the absence of an express statute in reference

thereto service must be made in accordance with the common law. 20 Standard Ency. of Prac.

p. 100; People ex rel. Howard v. Cairo, Ill., 50 Ill. 154; Cloud v. Pierce City, 86 Mo. 357.

Our legislature left no doubt on this score as to resident municipal corporations, for, after

providing in said section 8579, as amended, for the manner of service of summons in a suitagainst a corporation formed under the laws of this state, it provided specifically in the same

section for service of summons on a resident municipal corporation. In this respect the statute

provides:

5. If against a county, city, or town, to the chairman of the board of commissioners,

president of the council or trustees, mayor of the city, or other head of the legislative

department thereof.

As these sections were enacted contemporaneously, what reason exists for believing that


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the legislature intended the word corporations when employed as to corporations of other

states to be more comprehensive and include municipalities of such other states? None that

we can perceive. Besides, in sections 8580 and 8581, the legislature refers to a foreign

corporation as designated in section 8579, as a company, and while a proper signification of

the word company may include a corporation, it is not to be taken in the sense of a

municipality. The intention of the legislature should be derived from the sections mentioned,and we should not speculate beyond the reasonable import of words.

We are referred to no authorities which hold that the word company may include a

municipality.

6. The argument that the petitioner must be classed DVDSULYDWHFRUSRUDWLRQEHFDXVHDVFRQWHQGHGE\UHVSRQGHQWVLWFDPHLQWRWKLVVWDWHLQDSURSULHWDU\FDSDFLW\LVDOWRJHWKHU

WRRWHQXRXV


as a private corporation, because, as contended by respondents, it came into this state in a

proprietary capacity is altogether too tenuous. If the legislature had intended the section to

apply to a foreign municipal corporation when exercising a particular class of powers, it

probably would have made such distinction apparent.

7. Respondents say that while section 8581 N. C. L. would of itself be sufficient to

authorize service upon the petitioner Department of Water and Power, section 4 of chapter

107, Stats. 1933, definitely defines its legal character and places it in the same category as any

other foreign corporation doing business in this state. They quote the section.

Any such municipal corporation so entering this state for the purpose of doing business

herein shall be subject to the laws of this state relative to taxation, police regulations, and all

laws and reasonable regulations specifically applicable to any particular business or activityin which such municipalities may engage, as the same are now, or hereafter may be made,

that are applicable to foreign corporations doing like or similar business or work in this

state.

We see no help for respondents' position in this statute. It does not provide for service of

process on a foreign municipal corporation by serving the secretary of state or otherwise.

Moreover, it is a legislative expression that foreign municipal corporations are not considered

included in the term foreign corporations, for they are distinguished, and certain laws of

the state applicable to the latter are made applicable to the former.

8-10. It is contended by respondent that petitioner may not in this proceeding question the

validity of the service because it did not complain of any insufficiency or irregularity of suchservice in the court below. Petitioner asserts that, while its argument there was devoted

almost exclusively to the contention that it could be sued only in the county of its situs, that it

was stated in the briefs in the trial court that petitioner did not concede the validity of the

attempted service on the VHFUHWDU\RIVWDWH


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secretary of state. The fact of the matter is immaterial. While this court has uniformly held

that a point made for the first time on appeal will not be considered, the rule embraces only

nonjurisdictional questions. Allen v. Ingalls, 33 Nev. 281, 282, 287, 111 P. 34, 114 P. 758,

Ann Cas. 1913e, 755. Moreover, the general rule quoted by respondents from 22 R.C.L. p.

27, that a writ of prohibition will not be issued to an inferior court unless the attention of the

court whose proceedings it is sought to arrest has been called to the alleged lack or excess of

jurisdiction is subject to several exceptions. One of these is where lack of jurisdiction is

apparent on the face of the proceedings. 22 R.C.L. p. 28: Havemeyer v. Superior Court, 84

Cal. 327, 24 P. 121, 10 L.R.A. 627, 18 Am. St. Rep. 192; St. Louis, etc., R. Co. v. Wear, 135

Mo. 320, 36 S. W. 357, 658, 33 L.R.A. 341. This proceeding falls within that exception.

As the lower court is without jurisdiction for the reasons stated, it is unnecessary to

determine petitioners' other point, that a municipal corporation is suable only in the state of

its situs.

It is ordered that a peremptory writ of prohibition issue restraining the said Eighth judicial

district court and judge thereof from further proceeding in said action.

On Petition for Rehearing

August 10,1937.

Per Curiam:

Rehearing denied.

____________

58 Nev. 16, 16 (1937) Nevada Industrial Comm'n v. Leonard

NEVADA INDUSTRIAL COMMISSION, Appellant, v. BEULAH H. LEONARD and

JOHN D. LEONARD, Her Husband, Respondents.

No. 3164

May 28, 1937. 68 P.(2d) 576.

1. Workmen's Compensation.A teacher's testimony that she was watching her step at time of accident did not require finding that

teacher was not observing children on school grounds as required by statute, as respects whether injury was

compensable as arising out of and in course of employment (Comp. Laws, sec. 5687, subd. 5).

2. Workmen's Compensation.A school district which has accepted terms of compensation act prior to teacher's accident was an

employer, and teacher was an employee within terms of the act (Comp. Laws, sec. 2688).

3. Schools and School Districts.


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A statute requiring teachers to hold pupils to strict accountability for their conduct to and from school and

on playgrounds and during intermissions requires teachers to observe conduct of pupils (Comp. Laws, sec.

5687, subd. 5).

4. Workmen's Compensation.Injuries resulting from a teacher's fall on rock in road near school while going from home to school

arose out of and in course of her employment so as to be compensable, where teacher was observing

children on school grounds or on their way to school as required by Statute (Comp. Laws, sec. 5687, subd.5).

5. Workmen's Compensation.A teacher injured while walking to school is entitled to compensation, if injuries arise out of and in

course of her employment, notwithstanding that industrial commission's classification of risks for teachers

does not include transportation hazards (Comp. Laws, secs. 2683, 2702, 2703).

Appeal from Second Judicial District Court, Washoe County;B.F. Curler, Judge.

Proceeding under the workmen's compensation law by Beulah H. Leonard, claimant, and

John D. Leonard, her husband, opposed by the Nevada Industrial Commission. From a

judgment awarding compensation to the plaintiffs and orders refusing to modify the findingsof fact and denying a motion for new trial, the Nevada Industrial Commission appeals.

Judgment and orders affirmed.


George L. Sanford, for Appellant:

The Nevada industrial commission had authority and the duty to classify the hazards and

risks of industry and fix rates accordingly, under sections 21(a), 21(b), and 22 of the act. The

commission classified school teacher employments and assigned to them a higher rate ofpremium than applied in other cases, to insure teachers exposed to transportation hazards and

protected against transportation hazards, than the rate for teachers not so exposed. The

industrial insurance act, in section 3(a), binds all accepting its terms, and is exclusive. It

constitutes a contract between the employer, the employee, and the state (sec. 1 [d]).

Inasmuch as in the case of school districts and school teachers the act is conclusive,

compulsory, and obligatory, the contract is more firmly entrenched than if election to accept

were optional, and the employee must accept compensation in the manner provided by the

act. Thus, she must be content to have her right to compensation limited to compensation for

injuries arising out of hazards recognized by the commission through rules of classification

and rates of premiums adopted pursuant to the power delegated to the commission by the act

itself. Such a delegation of power to fill in the details has been held proper. Ginocchio v.

Shaughnessy, 47 Nev. 129, 217 P. 581; United States v. Grimaud, 220 U.S. 506, 55 L. Ed.

563. The hazards of travel accidents was not a hazard against which plaintiff Beulah H.

Leonard was protected, as a matter of fact.

It is the contention of appellant, upon the facts, that Mrs. Leonard was disabled by an

injury occurring out of work time, away from her work place, and accidentally suffered when

she was doing no act she was hired to do for her employer, and no act which was reasonably


13/349

proximate or incident to the work she was employed to do for her employer, in respect of the

time, place or character of such act. There was no relation of cause and effect between the

injury accidentally sustained and her proper work or any hazard or risk of her proper ZRUNDQGQRVXFKUHODWLRQRIFDXVHDQGHIIHFWFRXOGEHIRUHNQRZQRUFDQEHDIWHUNQRZQRU

UHDOL]HG


work, and no such relation of cause and effect could be foreknown or can be afterknown or

realized. It was an ordinary street accident sustained in going to work, not to be attributed to

any employment, and was not compensable as a matter of fact. Mrs. Leonard was not even

in the service of an employer, as defined by sections 7 1/2 and 7 1/2(a) of the act, at the

time of the injury. The last service she performed for the employer before the injury was on

the preceding Friday evening, when she finished her school work and left the schoolhouse

and did not thereafter resume it.

At the time and place of the injury, Mrs. Leonard was watching her step and not watching

the school children.

J. A. Sanders and Wm. McKnight, for Respondents:

The injuries involved in this case arose out of and in the course of the employment,

because:

(a) Mrs. Leonard was actually engaged in the performance of her statutory and contractual

duties at the time of her injury. Sec. 5687 N. C. L.; Scrivner v. Franklin School District, 50

Ida. 109, 293 P. 666; Logue v. Independent School District, 53 Ida. 44, 21 P. (2d) 534.

(b) If not actually engaged in the performance of her contractual and statutory duties at the

time of the injury, Mrs. Leonard was at least upon the premises of her employer, or at a placeso close thereto as to be considered a part thereof, for the purpose of commencing her work in

the schoolroom. 49 A .L. R. 426 (n.); 82 A. L. R. 1044 (sup. n.); 71 C. J. p. 716, sec. 445, nn.

71-73; Judson Manufacturing Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1.

(c) Even though Mrs. Leonard was not on the premises of her employer, or at a place so

close thereto as to be considered a part thereof, or doing anything except walking to

commence her work, she was certainly within the sphere or zone of her employment in the

schoolroom. Industrial Commission v. Barber, 117 Ohio St. 373, 159 N. E. 363; Barnett v.

Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A. L. R. 85; Redner v. H. C. Faber

6RQV$SS


& Sons, 180 App. Div. 127, 167 N. Y. S. 242; Bountiful Brick Co. v. Giles, 276 U. S. 154, 48

Supp. Ct. 221, 72 L. Ed. 507; Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 Atl. 596;

Texas Employers' Ins. Ass'n. v. Boecher (Tex. Civ. App.), 53 S. W. (2d) 327.

(d) Even though Mrs. Leonard was not actually engaged in the performance of her


14/349

statutory or contractual duties, or on the premises of her employer or at a place so close

thereto as to be considered a part thereof, or within the sphere or zone of her employment in

the schoolroom, she was certainly on the way from her home to perform some special service

or errand or discharge some duty incidental to the nature of her employment, in the interest

of, or under the direction of, her employer. Kyle v. Greene High School, 208 Iowa 1037, 226

N. W. 71; Massey v. Board of Education, 204 N. C. 193, 167 S. E. 695; Mann v. Board ofEducation, 266 Mich. 271, 253 N. W. 294; Stockley v. School District, 231 Mich. 523, 204

N.W. 715; Scrivner v. Franklin School District, supra; Chandler v. Industrial Commission, 60

Utah 387, 208 P. 499; Lake v. City of Bridgeport, 102 Conn. 337, 128 Atl. 782.

(e) There was a casual connection between the injury and the employment. Cudahy

Packing Co. v. Parramore, 263 U. S. 418, 68 L. Ed. 366.

The arbitrary classification of rates by the Nevada industrial commission will not prevent

the payment of compensation, because liability for compensation is neither contractual nor

tortious, but grows out of a status which in turn springs from the hiring by operation of law.

Hall v. Industrial Commission of Ohio (Ohio App.), 3 N. E. (2d) 367, 371, 635, 637.

OPINION

By the Court, Taber, J.:

This is an appeal from a judgment of the Second judicial district court, Washoe County,

department No.


2, and from orders of that court refusing to modify the findings of fact and denying a motion

for new trial. Appellant was defendant in the court below. John D. Leonard was joined as aparty plaintiff because he was the husband of plaintiff Beulah H. Leonard.

On the morning of April 9, 1934, Mrs. Leonard, a teacher employed in the public school at

Gerlach, while walking home from her home to school, fell, breaking her hip. Her claim for

compensation was denied by the industrial commission, whereupon suit was brought in said

district court, which, after trial without a jury, rendered judgment, awarding compensation to

plaintiffs in the sum of $5,341.79. It was stipulated at the trial that said amount should be

awarded in the event plaintiffs recovered judgment.

The public school buildings at Gerlach are situated on land leased from the Western

Pacific Railroad Company. The school grounds are inclosed by a wire fence, in which the

only openings are gates affording entrance to and exit from the school grounds. The inclosurearound the school buildings is 304 feet long and 159 1/2 feet wide. The school grounds and

buildings run in a general northeasterly and southwesterly direction. In entering the grounds,

one goes in a northwesterly direction. In speaking of the aforesaid directions, it is the custom

of the residents of Gerlach to designate the southeasterly fence of the inclosure as the south,

the opposite fence as the north, and the two end fences as east and west, respectively. For the

sake of brevity, the latter designations will be used herein. The actual inclosure around the

school buildings does not conform to the boundaries described in the lease. The fences are


15/349

somewhat to the north and west of the corresponding lines of the parcel of land described in

the lease. The greater part of the ground described in the lease is included within the fencing

actually inclosing the school grounds.

No plat of Gerlach has been filed with the county recorder of Washoe County, and the

thoroughfares used E\WKHSXEOLFDUHQRWQDPHG


by the public are not named. No formal dedication of said thoroughfares has ever been made.

The school grounds and buildings are on the north and east outskirts of the town, and there

are several thoroughfares approaching them from the south and west. These thoroughfares

serve the same practical purposes as would legally platted and dedicated streets. There are no

pavements or cement sidewalks at Gerlach.

The home of the Leonards was about a quarter of a mile, or perhaps a little more, in a

southwesterly direction from the schoolabout ten minutes' walk. At about 8:30 a.m., orperhaps a few minutes before that time, on the morning of said 9th day of April 1934, Mrs.

Leonard left her home for the sole purpose of going to the schoolhouse, there to make

preparations for teaching her classes and to ring the school bell at 8:45. The teachers were

expected to arrive at the schoolhouse each morning about 8:30. Along the south fence of the

inclosure around the school grounds, and just outside thereof, there is an open road or

thoroughfare without sidewalks or pavement. According to Miss Armbruster, this was the

only place to walk or drive cars in approaching the school gate from the west. There were

numerous stones in and upon the ground along this thoroughfare, and indeed in that vicinity

generally. Most of these stones were wholly embedded in the ground, but many of them

projected above the surface. There were also many stones lying loose on the surface of the

ground.Accompanying Mrs. Leonard were her eleven-year-old twin daughters, who were pupils in

the seventh grade. After Mrs. Leonard and her children had passed the southwest corner of

the school grounds, and while they were walking between that point and the entrance gate, the

heel on her left shoe slipped on one of the stones and she fell to the ground, breaking her hip.

The accident happened less than 10 feet distant from the south fence, and while Mrs. Leonard

and her children were walking in the customary and natural place on their way WRWKHHQWUDQFHJDWH


to the entrance gate. There was some testimony that the accident happened within the

boundaries of the land leased to the Gerlach school district, as said land is described in the

lease hereinbefore mentioned; but in our opinion the trial court was correct in its finding that

the accident happened on ground not included within said leased land, nor within the actual

wire fence inclosure of the school grounds. As we read the record, the testimony indicates


16/349

clearly that the accident happened from 10 to 15 feet west of the west boundary of the land as

describes in the lease. This would place the scene of the accident at a point approximately 40

feet east of the southwest corner of the actual school inclosure, and approximately 125 feet

west from the gate, which at that time was the only place used as the entrance to and exit

from the school grounds.

It was between 8:35 and 8:40 a.m. when the accident happened. At the time of theaccident, and just prior thereto, two boys were on the school grounds, one of them playing

with a basketball and the other at the giant stride. Mrs. Leonard testified that she was

watching these boys just prior to, and at the time of the accident. I was watching the conduct

of children on the way to school, watching the conduct of the children on the school grounds

and going to the school to prepare lessons, as well as watching the school property and

children in the school grounds and in the school building. Besides Mrs. Leonard's daughters

and the two boys playing on the school grounds, there was a little girl coming to school,

playing around the schoolhouse. After the accident, this little girl helped one of Mrs.

Leonard's daughters pick up some of the papers dropped when she fell.

On cross-examination, Mrs. Leonard testified that as she was going along near the fence

that morning she was watching her step in order to avoid the rocks. Q. And you werewatching your step at the time this accident occurred? A. Yes.


As Mrs. Leonard came along by the fence just before the accident, she saw another

teacher, Mr. Lucas, enter the school buildings, and the other teacher, Miss Armbruster, was

the first person to come to where she was lying immediately after the accident. In

approaching the school grounds, Mrs. Leonard was following her customary pathway,

because, as she testified, it was the least covered with rocks.Mrs. Leonard was the high school teacher, but besides teaching history, Latin, and English

in high school, she also taught history to the fourth, fifth, sixth, and seventh grades in the

elementary school.

In leaving her home on the morning of the accident, it was Mrs. Leonard's intention to do

just what she had been accustomed to doing in the past while employed as a teacher in the

Gerlach school; that is, to observe the children along the way, to prepare for her classes upon

arrival at the schoolhouse, and to ring the school bell at 8:45.

1. Because Mrs. Leonard, on cross-examination, testified that at the time of the accident

she was watching her step, appellant argues that she could not at the same time have been

observing children on the school grounds or on their way to school. This does not appeal to usas being a fair construction of all the testimony, which, in our opinion, justifies the finding of

the trial court that, besides walking carefully, Mrs. Leonard was watching the two boys

playing on the school grounds.

There is left for our consideration the single question whether Mrs. Leonard's injury arose

out of and in the course of her employment.

Section 1 of the Nevada industrial insurance act (section 2680 N. C. L. 1929) reads:

When, as in this act provided, an employer shall accept the terms of this act and be governed


17/349

by its provisions, every such employer shall be conclusively presumed to have elected to

provide, secure and pay compensation according to the terms, conditions, and provisions of

this act for any DQGDOOSHUVRQDOLQMXULHVE\DFFLGHQWVXVWDLQHGE\DQHPSOR\HHDULVLQJRXWRIDQGLQWKHFRXUVHRIWKHHPSOR\PHQWDQGLQVXFKFDVHVWKHHPSOR\HUVKDOOEHUHOLHYHGIURPRWKHUOLDELOLW\IRUUHFRYHU\RIGDPDJHVRURWKHUFRPSHQVDWLRQIRUVXFKSHUVRQDO

LQMXU\XQOHVVE\WKHWHUPVRIWKLVDFWRWKHUZLVHSURYLGHG


and all personal injuries by accident sustained by an employee arising out of and in the course

of the employment; and in such cases the employer shall be relieved from other liability for

recovery of damages or other compensation for such personal injury, unless by the terms of

this act otherwise provided.

2. The Gerlach school district accepted the terms of said act some time prior to the

accident involved in this case. We are satisfied that at the time of the injury the school district

was an employer and Mrs. Leonard an employee, as those terms are used in sections 7 1/2 and7 1/2(a) of said act (section 2688 N. C. L. 1929).

Section 39 of the act concerning public schools (section 5687 N. C. L. 1929) provides that

every teacher in the public schools shall: * * * 5. Hold pupils to a strict account for their

conduct on the way to and from school, on the playground, and during any intermission.

Appellant relies chiefly on its third and fourth assignments of error. In said third

assignment, appellant contends that the district court erred: In making the findings of fact on

insufficient evidence and with no substantial evidence in support thereof and against the

evidence. In finding as a fact that at the time and place of the injury Beulah H. Leonard,

plaintiff, was doing something reasonably incident and proximate thereto in point of

character, time and place.In said fourth assignment of error appellant complains that the trial court erred: In

concluding as a matter of law, contrary to law and against law, that the said plaintiff's injury

(1) happened in the course of employment and also (2) arose out of employment.

The positions of the respective parties have been fully and ably presented by counsel.

Many of the cases cited have not been helpful because of the absence of a statutory provision

such as that hereinbefore quoted from section 5687 N. C. L. 1929. On the other hand, some of

the cases cited in behalf of respondents have been of little assistance, for the reason that this

is not a VSHFLDOPLVVLRQVSHFLDOVHUYLFHVSHFLDOHUUDQGRUHPHUJHQF\FDOOFDVH


special mission, special service, special errand, or emergency call case.

A case presenting facts very similar to those in this case, and a statute similar to the

Nevada prescribing the duties of public school teachers, is that of Logue v. Independent

School District No. 33, 53 Idaho 44, 21 P. (2d) 534, 535.

In that case it appeared that a school teacher, while walking from her home to the


18/349

schoolhouse, about one and one-half blocks, fell and broke her hip. The sole question in the

case was whether the accident arose out of and in the course of her employment as school

teacher. Amongst other things, the evidence showed that on the morning of the accident the

weather was stormy and snowy, and the sidewalks slippery; that the teacher was going to the

schoolhouse to begin her duties in the schoolroom; that immediately prior to and at the time

of the accident she was watching some school children who were snowballing; and that,while their conduct was not such as to call for a reprimand or a report in regard thereto, she

was watching their conduct, and was also on the lookout to observe any other pupils on their

way to school.

The Idaho statute (Code Idaho, 1932, secs. 32-1003) required school teachers to * * *

holds pupils to a strict account for disorderly conduct or improper language in or about the

building, on the playgrounds, and on the way to and from school.

In the course of its opinion the court, in Logue v. Independent School District No. 33,

supra, said: Even though respondent did not at the time find it necessary to discipline any

pupils, or notice conduct which would require a report, she was in a position to do so, and

was engaged in observing school children for that purpose, and the circumstances in the two

authorities following are sufficiently in point to support the conclusion that she was withinthe scope of her employment, and actively engaged in her duties expressly imposed upon her

by the VWDWXWHVDQGWKHUXOHV&RORUDGR&RQWUDFWLQJ&RY


statutes and the rules, Colorado Contracting Co. v. Industrial Commission, 74 Colo. 206, 219

P. 1075; Empire Health & Acc. Ins. Co. v. Purcell, 76 Ind. App. 551, 132 N. E. 664, and that

the accident arose in the course of, and out of her employment, Zeier v. Boise Transfer Co.,

43 Idaho 549, 254 P. 209; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S. W.(2d) 128.

3, 4. We are clearly of the opinion that the Nevada statute requiring public school teachers

to hold pupils to a strict account for their conduct on the way to and from school, and on the

playground and during any intermission, imposes upon such teachers, not merely the duty of

disciplining pupils after learning of any misconduct on their part, but the further duty of

observing their conduct to the end that they may be properly dealt with in the event of any

misconduct. It is not sufficient under this statute, that teachers apply disciplinary measures to

pupils whose misconduct may be reported to them or may come under their observation by

mere chance. The duty of teachers, under said statute, extends further than this, and they

must, to a reasonable extent, watch the pupils for the purpose of seeing to it that theirconduct, while on their way to and from school, on the playgrounds, and during all

intermissions, is proper.

5. Appellant calls our attention to sections 3(a), 21(a), 21(b), and 22(a) of the industrial

insurance act (sections 2683, 2702, 2703 N.C.L. 1929). It contends that the hazards of a

teacher's service are to be determined from the industrial commission's classification of risks

with proportional rates of premiums based thereon. It introduced in evidence the following

schedule of premium rates: State, counties, schools and cities, compulsory. Elective or


19/349

appointive offices and all employees exposed to transportation hazard a total of ninety-six

cents per hundred dollar payroll. That is sixty cents for the compensation and thirty-six for

the medical benefits. Clerical employees not exposed to transportation hazards, WRWDOIRUW\FHQWVSHUKXQGUHGGROODUSD\UROOWZHQW\ILYHIRUFRPSHQVDWLRQDQGILIWHHQIRUWKH

PHGLFDO


total forty cents per hundred dollar payroll, twenty-five for compensation and fifteen for the

medical. Professors, teachers, and clerical, total of forty, twenty-five cents for compensation

and fifteen cents for medical benefits.

Appellant points out that the industrial commission act is a contract binding upon the state

and upon employers and employees who accept its provisions; also that the remedies

provided in that act are exclusive. According to appellant, the classification of rates for

school teachers constitutes a delimitation of the hazards of that particular employment against

which the employee is insured, that is, the hazards which can be said to arise out of the

employment, and Mrs. Leonard, as appellant urges, was not protected by transportation

hazards.

We are unable to perceive how transportation hazards enter into this case at all. Mrs.

Leonard at the time of the accident was not being transported to the schoolhouse, nor was any

vehicle responsible for her injury. It was simply the result of a fall while she was walking

from her home to the schoolhouse.

We think that the trial court reached the correct conclusions, both as to the facts and the

law.

The judgment and orders appealed from are affirmed.

____________

58 Nev. 28, 28 (1937) Hill v. State

JOHN E. HILL, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 3178

June 1, 1937. 68 P.(2d) 569.

1. Criminal Law.Evidence that deputy sheriff attempted to locate state witness named in subpena every day for some

seventeen days preceding trial by visiting probable places of witness' employment, communicating with

secretary of labor union in city without state where witness had gone, and by otherwise searching and

inquiring, showed witness' unavailability sufficiently to authorize admission of witness' deposition taken at

preliminary examination, under statute (Comp. Laws, sec. 10775, as amended by Stats. 1933, c. 101).

2. Criminal Law.The testimony of magistrate who presided at preliminary examination that in his opinion accused was


20/349

incapable of examining witnesses was insufficient to require rejection of deposition of unavailable witness

taken at preliminary examination, where no suggestion was made at trial that accused was unable to defend

himself, and accused's testimony showed he understood what testimony would aid or prejudice his case.

3. Criminal Law.In prosecution for murder, stained pocket knife found wrapped in wire in garbage can in toliet near scene

of killing was admissible, under evidence that killing was accomplished with knife, that similar wire was

found in accused's premises, and that accused, who admitted killing with smaller knife in self-defense, wasin toilet following killing.

4. Criminal Law.Under constitution defining supreme court's jurisdiction in criminal cases, court will not set aside verdict

of conviction for insufficiency of evidence if verdict is supported by any substantial evidence (Const. art.

6, sec. 4).

5. Homicide.Evidence supported conviction of second-degree murder, as against contention that killing was in

self-defense.

Appeal from Second Judicial District Court, Washoe County;B. F. Curler, Judge.

John E. Hill was convicted of murder in the second degree, and he appeals. Affirmed.

J. M. Frame, for Appellant:

Appellant contends that it was prejudicial error to admit in evidence the knife designated

as plaintiff's H[KLELW1R7KHUHLVDFRPSOHWHIDLOXUHRQWKHSDUWRIWKHVWDWHWRHVWDEOLVK

DQ\FHUWDLQRUUHOLDEOHLGHQWLILFDWLRQRIWKLVNQLIH

58 Nev. 28, 29 (1937) Hill v. State

exhibit No. 2. There is a complete failure on the part of the state to establish any certain or

reliable identification of this knife. The only testimony upon this point is that the wire on it

was similar wire to some of the wire found in the defendant's cabin. The defendant's positive

denial that he owned or had such a knife at the time of the difficulty is not overcome by what

would be merely conjecture or suspicion. State v. Codotte (Mont.), 42 P. 858.

The admission in evidence of the transcript of the testimony of the witness Mix was

likewise error. A proper foundation for the admission of his testimony taken at the

preliminary examination was not laid, in that it was not shown that the witness at the time of

the trial was either dead, absent from the state, or that his attendance at the trial could not

have been secured by the exercise of reasonable diligence. State v. Parker, 16 Nev. 79.

It was also error to admit the deposition of the witness Mix taken at the preliminary

examination. The defendant not being represented by counsel and not being in a mental or

physical condition to enable him to cross-examine the witness, the spirit and true meaning of

both the state and federal constitutions guaranteeing to the defendant the right to be

confronted by the witnesses against him was violated, to the prejudice of the defendant.

The evidence is insufficient to support the verdict, and the verdict is against the law. The

testimony offered by the state clearly corroborates the defendant's version of the difficulty,


21/349

and all the evidence clearly shows that the defendant acted in self defense.

Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy

Attorneys-General;Ernest S. Brown, District Attorney, andNash P. Morgan, Deputy District

Attorney, for the State:

A weapon or instrument with which a crime might have been committed, found near thetime and scene ofWKHFULPHLVUHOHYDQWDQGDGPLVVLEOHLQHYLGHQFH

58 Nev. 28, 30 (1937) Hill v. State

the crime, is relevant and admissible in evidence. 16 C. J. 618, sec. 1225; State v. Jon, 46

Nev. 418, 211 P. 676, 217 P. 587; State v. Campbell (N. D.), 72 N. W. 935; State v. Yee

Gueng (Ore.), 112 P. 425.

Even without the testimony of Mix, we believe, from the authorities cited, the

wire-wrapped knife would be admissible, being handed to the officer making theinvestigation, at the time and place, by a by-stander who pointed out the place of finding,

together with the condition and appearance of the knife, the bloody toilet paper found on

appellant, the wire and pliers found in his cabin, the old grudge or bad blood existing, the

nature of the wounds, the condition of the pen knife with which appellant claimed to have

stabbed deceased, and the other facts in evidence.

However, the testimony of Mix, taken at the preliminary examination, was relevant,

competent and material, and it was not error to admit it. The testimony of Officer Geach and

of Deputy Sheriff Young shows that a subpena was issued and that a continuous and daily

search was made for the witness Mix from May 28 down to the date the officers testified.

Section 10775 N. C. L. expressly provides for the use of such testimony at the trial, and the

court has held the statute constitutional. State v. Jones, 7 Nev. 408; State v. Johnson, 12 Nev.121. Appellant was confronted by the witnesses at the preliminary examination and had an

opportunity to cross-examine them.

The jury did not have to believe appellant's story that he was attacked by Zoebel, nor his

testimony as to what took place. State v. Robinson, 54 Nev. 56, 6 P.(2d) 433; State v. Soars,

53 Nev. 235, 296 P. 1081. Appellant's story is unreasonable, and even if true would not

justify him in the killing; moreover, it is contradicted in more than one particular point by

disinterested and credible witnesses.

There is ample evidence to support the verdict. State v. Robinson, supra. And a verdict of

conviction will not EHVHWDVLGHLILWLVVXSSRUWHGE\DQ\VXEVWDQWLDOHYLGHQFH

58 Nev. 28, 31 (1937) Hill v. State

be set aside if it is supported by any substantial evidence. State v. Watts, 53 Nev. 200, 296 P.

26; State v. Squier, 56 Nev. 386, 54 P. (2d) 227.

OPINION


22/349

By the Court, Taber, J.:

Defendant was convicted of murder of the second degree in department No. 2 of the

Second judicial district court, Washoe County, and sentenced to imprisonment in the state

prison for from ten years to life. This appeal is taken from the judgment, and from an order of

said district court denying a motion for new trial.Between 6 and 6:30 o'clock on the morning of May 12, 1936, on the sidewalk on the west

side of Center street between Douglas alley and Commercial row in the city of Reno,

witnesses observed defendant, aged seventy, and one Theodore Zoebel, aged eighty, engaged

in a violent physical altercation. Aside from the participants, there does not appear to have

been any eyewitness to the beginning of the combat. Zoebel died from stab wounds inflicted

upon him by defendant in said encounter. The killing is admitted, but at his trial appellant

pleaded self-defense.

Police Officer J. L. Geach testified that upon arriving at the scene of the trouble, he saw

Zoebel lying on the sidewalk, and upon being told by by-standers that the man who had done

the cutting had proceeded west on Commercial row, he and Officer Dean went partly around

the block to the intersection of Virginia street and Douglas alley. There, one Ed Walterspointed to defendant, who at that time was going east in Douglas alley. Thereupon the

officers went around to the front entrance of the Wine House on Commercial row, and

Officer Geach went through the Wine House and out its back door on Douglas alley, when he

again saw defendant proceeding east in the alley between the rear RIWKH:LQH+RXVHDQG

&HQWHUVWUHHW

58 Nev. 28, 32 (1937) Hill v. State

of the Wine House and Center street. The officer caught up with defendant and arrested himjust as he was turning into Center street from Douglas alley, about 40 feet south of the place

where the officer first found Zoebel lying on the sidewalk.

Defendant was with the officers when they took Zoebel to the hospital. On the way,

defendant volunteered the statement two or three times that he was justified in what he had

done. When Zoebel was taken into the hospital, Officer Dean also went in, while Geach

remained outside with defendant. At this time defendant again stated that he was justified in

what he had done and went on to tell Officer Geach that he had just protected himself as

would any other citizen.

In going through defendant's pockets at the police station, Mr. Geach found some pieces of

rope, a pocket knife, and a piece of toilet paper stained with what appeared to be blood.Defendant also had a package on his arm, tied with a string. In it was defendant's lunch.

Amongst other things, the lunch package contained a small filled jar, which had been

cracked. The pocket knife was an ordinary brown bone-handled pocket knife, with two

blades. This is the knife with which defendant claims he stabbed Zoebel. There was no

appearance of blood or blood stains on either of the blades of this knife. Defendant told the

officer he had wiped the blood off the knife with his fingers. The officer did not notice any

bruises, scratches, or abrasions on defendant's face.


23/349

After searching defendant at the police station, the officer went back to the scene of the

trouble for the purpose of trying to find witnesses who had seen the trouble start. This was

about fifty minutes after he had first been called there. While standing in front of the Bank

Club, just south of Douglas alley on Center street, a man identifying himself as a Mr. Mix, in

the employ of the Nevada State Journal, handed him a knife. It was a pocket knife without

handles on, a long blade, I might say the blade was about three inches at least, and this EODGHZDVZLUHGRSHQ

58 Nev. 28, 33 (1937) Hill v. State

blade was wired open. There were blood stains on the blade. After handing this knife to the

officer, Mr. Mix took him to the toilet of the Wine House and there showed him a garbage

can in which there was what appeared to the officer to be a broken bottle and a little water.

Officer Geach further testified that on the second day after the trouble, he inspected the

cabin in which defendant had been living, and there found some wire; on the next day he alsofound there a pair of cheap pliers. The pliers, the wire, both knives, and the stained paper

were admitted in evidence at the trial.

Mr. Geach further testified that on the day of the trouble, after defendant's arrest, in the

office of the chief of police, defendant stated that there had been bad blood between him and

Zoebel for eight years; that he had been attacked by Mr. Zoebel; and that upon one occasion

Mr. Zoebel had caused his arrest. On May 12, and again on May 15, defendant stated that at

the time of the trouble on the morning of May 12, Zoebel attacked him with a ramal.

Officer Geach testified that on May 15 defendant denied ownership of the knife which had

been handed the officers by Mr. Mix; also that defendant said he had gone in the front door of

the Wine House and out the back door on the morning of the trouble, but that this was before

the altercation.With reference to the wire found in defendant's premises, Mr. Geach testified on

cross-examination that he would say it was the kind commonly used by electricians and for

various purposes, but he was not in a position to qualify; that it had been his observation that

this kind of wire was commonly used and generally on the market, and often used in the city

of Reno. Also on cross-examination he admitted that he was not to be understood as

testifying positively that the stains on the larger knife were blood. Defendant from the first,

says Mr. Geach, consistently maintained that he was MXVWLILHGLQVWDEELQJ=RHEHO

58 Nev. 28, 34 (1937) Hill v. State

justified in stabbing Zoebel. This officer estimated that Zoebel was about 5 feet 10 inches tall,

and weighed from 140 to 150 pounds.

Charles Warren Mix, the man who handed Officer Geach the knife with which the state

claims Zoebel was stabbed, did not appear as a witness at the trial, but his deposition taken at

the preliminary examination was admitted in evidence over defendant's objections, which will


24/349

be considered later in this opinion. The substance of Mr. Mix's testimony follows: On the

morning of the trouble, he had occasion to go to the men's toilet in the rear of the Wine House

adjoining Douglas alley. He noticed a knife in the garbage can where there was about half an

inch of water. He had previously heard that somebody had been stabbed. He picked up the

knife and when he saw the officers, handed the knife to Officer Geach. He identified the

larger knife with the longer blade as the one he handed the officer. It was wrapped with wirewhen he found it just as it was when he examined it in court. It had a stain on the blade. He

could not exactly say whether it was blood or not.

Ed Walters, occupation building trades, who had lived in Reno about ten years, testified

that on the morning of the trouble, while in the front entrance of the Palace Club, he noticed

defendant and Zoebel scuffling on the sidewalk on Center street about half way between

Douglas alley and Commercial row. Zoebel was bleeding very badly and was following

defendant, who was coming towards witness. As they came nearer, Zoebel staggered and fell

on the sidewalk. Witness picked him up and put him over to the side of the building, noticing

that he was badly cut on the left side of the face, and that there was a cut also under the left

arm. Defendant walked on over to the corner and stood there mumbling, then he started west

on Commercial row. Witness followed defendant to Virginia street and told him not to crossthat street. Defendant turned to the left on Virginia street and went south to Douglas alley andWKHQVWDUWHGHDVWLQWKDWDOOH\

58 Nev. 28, 35 (1937) Hill v. State

then started east in that alley. Witness saw officers coming, stopped them and informed them

that defendant had just entered the rear of the Wine House, and as witness neared this bank

entrance, defendant came out and started east again in Douglas alley. Witness pointed out

defendant to Officer Geach, who followed him to Center street and north around the corneron the sidewalk where Zoebel had fallen, and arrested him.

On cross-examination Mr. Walters testified that defendant remained in the rear of the

Wine House from five to ten minutes. When he first saw Zoebel and defendant scuffling,

Zoebel had a ramal in his hand. Witness did not see any blows struck with it. Witness was

about 20 or 30 feet away when he saw the ramal in the hands of Zoebel.

Eli Francovich, an employee at the Wine House, who had resided at Reno all his life and

who had seen defendant many times, though not personally acquainted with him or Zoebel,

testified that while standing at the front of the Wine House, on the inside, two young men

came in the front door and he heard one of them saying to the other, That is him going into

the toilet now. Witness looked toward the rear of the building and saw a man entering thetoilet, whom he did not at that time recognize. Witness watched and in a few minutes saw

defendant coming out. Defendant turned and went out the back door into Douglas alley.

Witness testified that no one else had been in the toilet while defendant was there. Witness

went out through the back door, saw defendant proceeding east in Douglas alley, followed

him, and when he reached the end of the alley, saw the officers searching him.

On cross-examination, Mr. Francovich testified that the toilet was one in general use

where anybody could enter who saw fit, and that many men were in and out of that room


25/349

every day. Defendant was in there not more than two or three minutes. This was around 6:30

a.m. at the latest.

58 Nev. 28, 36 (1937) Hill v. State

Fred East, a prospector who had been around Reno a number of years, and who had

previously seen both defendant and deceased, though not personally acquainted with either of

them, saw them scuffling and trying to clinch with each other on the sidewalk about 30 feet

north from Douglas alley, about 6 o'clock or maybe a little later. He did not see either one

strike the other at first, but a little later, just before Zoebel fell, he saw defendant strike him

on the left side of the face. He also saw Zoebel strike defendant over the head two or three

times with the whip end of the ramal. Zoebel's blows did not look very hard. He didn't look

like that he was very stout. After defendant had struck Zoebel, the latter grabbed hold of a

high iron sign post to steady himself. When he left that post, he reeled quite a bit, did not

walk very straight. From that post he went to the side of the Palace Club near the frontentrance and there fell. Witness was standing almost opposite the front entrance of the Palace.

About this time defendant told witness that Zoebel had been picking on him for the last eight

years, and I have fixed him so that he won't pick on me or anybody else. Defendant

referred to Zoebel as a s____ of a b____. He looked around at Zoebel and said, You will not

bother me any more; then he turned the corner and went west on Commercial row.

Mr. East testified, on cross-examination, that he did not see state's witness Walters at the

scene of the trouble. As Mr. Hill was walking away from Zoebel, the latter hit him over the

head two or three times with the ramal. Zoebel was holding the ramal by the loop and was

hitting defendant with the straps. Witness did not see the ramal doubled or folded up at any

time. Witness was near the front entrance of the Palace Club when he first saw defendant and

Zoebel scuffling on the sidewalk about 50 feet to the south. They were about 20 feet south ofwhere witness was standing when Zoebel commenced hitting defendant over the head with

the ramal, DQGDERXWIHHWIURPZKHUHZLWQHVVZDVVWDQGLQJZKHQKHVDZ=RHEHOFXWRQ

WKHIDFH

58 Nev. 28, 37 (1937) Hill v. State

and about 10 feet from where witness was standing when he saw Zoebel cut on the face.

Defendant was in front of Zoebel coming towards witness. As Zoebel was striking defendant

with the ramal, defendant turned around and cut Zoebel's face. After the trouble, witnessfollowed defendant west on Commercial row, but defendant was not in sight when witness

turned the corner at Virginia street. Witness proceeded south on Virginia street to Douglas

alley, but did not see defendant at first as he looked eastward in that alley. Witness started to

cross Douglas alley when he heard a couple of men say, There he goes. Witness then

looked down the alley again and saw defendant crossing to the side of the Bank Club.

Defendant walked out of the alley on to Center street and then crossed the alley northwards


26/349

towards the place where the crowd was standing around Mr. Zoebel.

On redirect examination, Mr. East testified that although he did not see Mr. Walters at the

scene of the trouble, he might have been there because there were lots of people around there.

Zoebel followed Hill about 40 feet before collapsing on the sidewalk.

Jacob Sands, a resident of Reno for about twenty years, while standing at the front corner

of the Palace Club the morning of the trouble, happened to look to the south and sawdefendant and Zoebel kind of wrestling. He thought they were fooling. The next he saw,

defendant was walking toward him and Zoebel was kind of making weak efforts with a sort

of strap. As Zoebel came closer, he slumped over. Witness saw Zoebel strike defendant

about once or twice, just kind of weak efforts.

On cross-examination Mr. Sands said that Zoebel was making a few wild swings, which

kind of glanced off because defendant was holding up his elbow, trying to ward the blows

off a little. Witness did not notice defendant stop at any time. He kept on going, mumbling a

little to himself, and proceeded west on Commercial URZ

58 Nev. 28, 38 (1937) Hill v. State

row. When Zoebel was striking at defendant with the whip, just before collapsing, defendant

did not use a knife or strike him with anything. From the place where Zoebel struck defendant

the last time, to the front corner of the Palace Club, defendant did not talk to anybody. He was

just mumbling a little as he passed witness.

Dr. William L. Howell, who had practiced medicine and surgery in Nevada for twenty

years, and was county physician for Washoe County, performed an autopsy to determine the

cause of Zoebel's death. This was on the afternoon of the day of the killing. He discovered

eight lacerated wounds, some of which were on the scalp, face, neck, and shoulder. One stab

wound penetrated the left ventricle of the heart, resulting in a hemorrhage which filled thepericardium. There were other wounds on the body, including one in the abdomen. The cause

of death was compression of the heart, resulting from the hemorrhage. It would be possible,

said Dr. Howell, for a man stabbed in the heart as Zoebel was, to walk 40 feet before

collapsing and dying. Zoebel may have lived some minutes before death ensued. The wound

in the heart was caused by a cutting instrument, apparently a sharp one. The knife claimed by

the state to have been used in the stabbing would ordinarily be more apt to make the wounds

than the smaller knife found in defendant's clothes after the killing. The latter has a shorter

blade, and more dull, and not one that could be used with the same force and make the same

wounds. Zoebel was an average-sized man, thin, weighing about 160 pounds, at a rough

guess. One cross-examination Dr. Howell testified that any of the wounds could have beenmade by the smaller knife.

Lowell Nugent, funeral director, testified that when he took possession of the body at the

hospital, it was clothed, and he assisted in removing the clothing. It was searched, for

purposes of identification, and was found to contain some cigarette papers and matches, aSLHFHRIZUDSSLQJSDSHUDERXWHLJKWLQFKHVZLGHRQZKLFKZDVZULWWHQLQOHDGSHQFLO,

DPQRWDWWKHULYHUDQGDQRUGLQDU\VPDOOSRFNHWNQLIH


27/349

58 Nev. 28, 39 (1937) Hill v. State

piece of wrapping paper about eight inches wide on which was written, in lead pencil, I am

not at the river, and an ordinary small pocket knife. The blades of this knife were closed. No

firearms were found.Lyle R. Stout, eleven years with Nevada Machinery & Electric Company, seller of

electrical merchandise at Reno, testified that in electrical business they use a stranded wire

gauge, and that he had had eleven years experience in the use of such gauges. Some of the

wire found at the defendant's premises was size 19. This wire is soft iron galvanized wire, and

is the same size and kind as that with which the blade of the longer knife was wired open.

The sharp side cutters used by electricians cut wire clean. Ordinary pliers, not sharp, leave a

kind of bend on the end of the wire where it is cut. The wire on the longer knife looked like it

might have been cut with some type of gas plier, because the ends were rather rough; not cut

sharp and clean; kind of broken off like something dull. Referring to the wire found at

defendant's place, of the same kind and size as that on the knife, witness stated that the endslooked like the wire had been cut with a cheap gas plier such as that found where defendant

liveda plier that bends and pinches the wire instead of cutting it sharp and clean. On

cross-examination Mr. Stout testified that the pliers found at defendant's place are a type

commonly used all over, and that might be found in pretty nearly any cabin or house in Reno.

Any cheap plier would make the same appearance in cutting the wire. Witness would not say

that the wire on the knife was cut from the other piece of wire in evidence, but only that it

was the same type of wire, and the same size.

Defendant testified that: He had been living in Reno the last ten years. He quit working in

mines when he was sixty-six years old. His health had been bad for several years, because of

stomach trouble. He was coming seventy years of age, and weighed 126 pounds. When

younger, he weighed 165. For the past year he had been ZRUNLQJRQJRYHUQPHQWUHOLHI

58 Nev. 28, 40 (1937) Hill v. State

working on government relief. Prior to May 12 he had been working at the university, at the

north end of Reno. He had known Zoebel for about ten years, and saw him occasionally.

Defendant left his home about 5:15 on the morning of May 12, 1936. He walked right up

town to the Wine House, where he used to go every morning when he was working to take a

rest. He left there by the back door about 6:30, and went east in Douglas alley, turning north

at Center street. As he turned the corner from the alley on to Center street, he saw Zoebel

walking south toward him, about 25 feet away, on the sidewalk along the side of the Palace

Club. When they were 3 or 4 feet from each other, Zoebel, without any warning, pulled the

ramal from behind his coat and began beating defendant on the head. At that time the ramal

looked like a blackjack to defendant. It was doubled up. Defendant thought he was in danger

of getting badly hurt, and believed it was necessary to defend himself. The attack came so

sudden he was mystified, stunned, did not know what to do. All he had to defend himself


28/349

with was the penknife, so he pulled that out of his pocket and used it in self-defense, backing

away as he did so. The time during which he was cutting Zoebel was about a minute. He was

trying to get away, but Zoebel hung right on to him. He had no intention of killing the man

and felt sorry because the man was dead. He was never in trouble of this kind beforealways

tried to keep out of trouble. This was the sixth time Zoebel attacked him in the last eight

years. About six years before, when defendant had two broken ribs, Zoebel knocked himdown, beat him all over the head and part of the face with a rock. Since then he had attacked

defendant on several other occasions, but defendant had escaped without serious injury.

About five or six days before the final encounter, Zoebel shook his fist at defendant, and

defendant crossed to the other side of the street. It was always Zoebel who commenced the

trouble. He was a bigger and stronger man.

58 Nev. 28, 41 (1937) Hill v. State

Defendant was never looking for trouble. Defendant cleaned the blood from the blade of thepenknife with his fingers. He knew nothing whatever about the other knife; never saw it until

the preliminary examination. When the trouble happened, defendant had his lunch and was on

his way to work. He had no weaponsnever did. The penknife was all he had. He did not

expect to meet Zoebel there that morning; he was cornered and could not get away. He did

the only thing he could do under the circumstances. He was as innocent as a child. As to the

blood on the paper: Zoebel tried to get the knife away from him, and defendant cut himself.

The scar could be seen yet. He wiped the blood from h

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