448 P.2d 36 | Nev. | 1968
By the Court,
Ernest J. Horton brought a civil action against Boyd Scott, alleging assault. The D. I. Operating Co., Scott’s employer, was named as a codefendant. The case, which was tried before a jury, resulted in verdicts in favor of both defendants. Horton filed two motions for a new trial, one of which was timely. The trial judge denied both motions, and thus this appeal.
The first motion was predicated upon (1) irregularity in the proceedings of the jury, (2) misconduct of the jury, and (3) the court’s failure to instruct the jury properly.
1. Appellant urges that the conduct of the bailiff caused the irregularities in the jury proceedings. The case went to the jury at 2:45 p.m. The bailiff inquired of the jury at approximately 10:30 p.m. whether the jury had reached a verdict. Upon being advised they had not, the bailiff stated that he would make arrangements for the jury to retire to their quarters for an overnight stay. Shortly thereafter, a verdict was reached.
Bailiffs are officers of the court and serve the court by acting under and pursuant to the direction of the trial judge. Any inquiries to the jury, such as in this case, should be made only if directed by the judge.
2. As his basis for the misconduct of the jury, appellant complains that the jury separated during their deliberations and that they were not kept together as required in NRS 16.120.
3. Appellant next urges that the trial court failed to instruct the jury properly regarding the liability of Respondent D. I. Operating Co. Appellant’s request for four additional instructions
Appellant’s second motion for a new trial, based upon newly discovered evidence, was filed 44 days
“Newly discovered evidence is a ground for a motion for new trial under Rule 59(a), but is not a ground for relief from judgment under Rule 60(b). In this respect our rule differs from the corresponding Federal Rule 60(b), 28 U.S.C.A., which allows relief from judgment upon the ground of newly discovered evidence, not discovered in time to move for a new trial. This departure from the federal rules was intentionally made in order to preserve the practice theretofore established under the Civil Practice Act. See Advisory Committee notes to NRCP 60(b).”
The orders of the trial judge denying appellant’s motions for a new trial must be affirmed.
Affirmed.
NRS 16.120. “Deliberation of jury; how and where conducted.
“1. After hearing the charge, the jury may either decide in court or retire for deliberation. If they retire, they shall be kept together in a room provided for them, or some other convenient place under charge of one or more officers, until they agree upon their verdict or are discharged by the court. The officer shall, to the utmost of his ability, keep the jury separate from other persons. He shall not suffer any communication to be made to them, or make any himself, unless by order of the court or judge, except to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.
“2. Each party to the action may appoint one or more persons, one of whom on each side shall be entitled to remain with the officer or officers in charge of the jury, and to be present at all times when any communication is had with the jury, or any individual member thereof, and no communication, either oral or written, shall be made to or received from the jurors, or any of them, except in the presence of and hearing of such persons so selected by the parties; and in case of a written communication, it shall not be delivered until read by them.”
PROPOSED INSTRUCTION C. “You are instructed that a hotel and casino operator may be held liable for the assaults of his servants committed while they are performing the duties they are employed to discharge. In short, there may arise duties from the relationship between the hotel and casino operator and the person assaulted by the employee which are absolute in character, imposing liability for assault committed by the employee regardless of the fact that it was made in furtherance of the servant’s personal ends.”
PROPOSED INSTRUCTION D. “You are instructed that in a hotel and casino operation, assaults by employees attempting to maintain order about the premises, although unjustified, may have been committed by such employees in the course and scope of their employment, since the amount of force required to quell disturbances or eject unruly patrons is one of discretion, and there is no excuse if excessive force has been used by such servants, even though the servant has been in part motivated by personal resentment or malice.”
PROPOSED INSTRUCTION E. “If you find that the employee, Boyd Scott, was charged with the duty of maintaining order, quelling disturbances and protecting his employer’s property, then you must find that his employer defendant, Desert Inn Operating Co., was responsible for his acts committed toward plaintiff in pursuance of such duties.” PROPOSED INSTRUCTION F. “An innkeeper or hotel and casino operator is under an obligation to protect its guests and business invitees from danger and harm when it is reasonably within its power to do so.”
NRCP 76. “RECORD ON APPEAL; AGREED STATEMENT “When the questions presented by an appeal can be determined without an examination of all the pleadings, evidence, and proceedings
NRCP 59(b). “Time for Motion. A motion for a new trial shall be served not later than 10 days after service of written notice of the entry of the judgment.”