*1
while testi-
testify
their demeanor
and observed
them so
accepted their
fying
direct and cross-examination.
this was
be denied
testimony
true. It cannot
finding
support
adequate substantial evidence
forgery.
not a
that the will was
presented
frankly
that the evidence
concede
must
We
grave suspicions
doubts
threw
the contestants
will,
resolved
these were
upon
authenticity of the
but
facts.
against
trier of the
contestants
admitting
probate is affirmed.
the will
order
JJ.,
concur.
Thompson,
McNamee
LEE, Appellant,
EARL
v. ALMA L.
MILTON
BAKER,
the Administratrix
Estate
E.
and ALMA
L.
Deceased,
Baker,
of Robert
Respond
McKENNA,
L.
BAKER
MARVA
ents.
No. 4896
29, 1961
November 4, 1962.) January (Rehearing denied Bartlett, Reno, Appellant. Vargas, Dillon & Harry Minor, Reno, A. Richard Busscher and C. *2 Chico, Goldstein, Goldstein, Barceloux & Cali- fornia, Respondents. for
OPINION Court,
By McNamee, J.: complaint The this case contains five causes of resulting action from involving an automobile accident cars, by two one driven Robert E. Baker and the other by Milton Earl Lee. accident, a result Baker,
As E. Robert wife his Baker, daughter L. Alma and their L. Marva McKenna personal injuries, sustained and Robert E. Baker sus- damage property tained to his automobile. suit Before commenced, E. Robert Baker died from a cause unconnected accident. As administratrix of his Alma Baker estate L. sues in the first cause action personal injuries, for her husband’s earnings, his loss of expenses. and his medical action, the second cause of administratrix, damage as said she sues for to the auto- mobile and loss of use for thereof. The third cause of for her on her own behalf Alma L. Baker
action is plus $10,000, certain personal injuries in the sum of own by Alma damages. of action is fourth cause special The for loss consortium. own behalf L. Baker on her for her Marva L. McKenna of action is fifth cause expenses. injuries and medical personal own negligence and as defendant’s The answer denies negligence alleges affirmative defenses accident and cause E. Baker was sole Robert alleges contributory separate defense affirmative part E. Baker which is of Robert McKenna, Marva L. imputable Alma L. Baker and guilty alleges plaintiffs of con- that all were and further answer, addition, tributory negligence. The contains damage defendant’s automobile. counterclaim *3 awarding by jury, rendered a trial verdict was After $1,075 the sum of for Alma Baker as administratrix L. thereof; use damages and for loss of to the automobile personal individually $15,000 her L. Baker for to Alma per- $2,500 L. for her injuries; to Marva McKenna separate of the injuries. A verdict found in favor sonal against L. Baker administratrix Alma defendant injuries personal respect for Robert to the claim the E. Baker.
Judgment accordingly. A was entered motion was judgment to set aside made defendant the trial, denied. new which was appeal concerned with the We are now from the judgment denying and from the order said verdict motion. justify evidence in the
There substantial record to finding appellant negligent driving jury in the was speed rate of at the time excessive collision. there evidence which would warrant a conclu- Also was negligent failing E. Baker that Robert was sion way right yield highway when he entered path oncoming into the from a side road vehicle. negligent negligence appellant and his If was was the negligence of the proximate accident and cause no thereto, respondent E. contributed Robert Baker Alma entitled to recover on L. Baker as administratrix was jury The first and second causes of action. was both the so instructed. negligent, hand, appellant if or
On the other was negligence negligent proxi- not a if he was but such was negligence accident, if such mate cause of or even accident, if E. a cause of the and Robert Baker was negligent negligence contributorially and his was also a accident, cause of the Alma L. Baker as was not entitled to recover on administratrix either the jury cause of action. The first or second was instructed respect in this also. grounds appellant’s
One of on his motion for new disregard “that there was manifest was: jury of the instructions court.” damages denying action of the
The to Alma personal L. Baker as administratrix for her husband’s injuries, concededly severe, awarding which were $1,075 damages as administratrix for her to and loss property, disregard of use of his is in of the court’s instructions, clearly inconsistent, and erroneous. jury properly was instructed that imputable E. Baker Robert was not to his wife
daughter.1 Therefore, a verdict in their favor for their injuries personal upheld, own could be in the absence of would, require error which a reversal of the *4 favor, regardless judgments any negligence in their of part Baker, of Robert E. if on the defendant’s proximate a cause of the was accident. noted, heretofore the third alleg-es
As
cause of action
damages
$10,000
personal injuries
in the sum of
for
to
Alma L. Baker. The
in its verdict awarded her
individually
personal
$15,000
injuries”
“for her own
$5,000
damages
personal
is
more than
which
alleged
injuries
Appellant
is
she
to have suffered.
con-
error,
grounds
tends this constitutes
and
of
upon
one
Boyd,
1
See F.& W. Construction Co.
v.
Nev.
Cook who arrived about accident. One Garrison three to five the accident testified that the vehicle after Lee minutes he moved before arrived. Z have been Exhibit could point conclusion the location of the Cook’s shows a distance delineates therefrom of 11" contact and 19" impact, Baker car came to rest after which to where interpreted another witness to mean 11 feet 19 was inches.
Respondents properly that Exhibit Z contend public record under NRS admissible 49.050.2 States; this records state and United 2 NRS 49.050 PubUc copies original, original or received evidence. The or a micro copy record, photostatic copy, or a film or judicial other than paper public custody record, officer document States, state, or of the United certified under the official of this *5 arguments respondents’ counsel In the final to the referring Z “Elaine Sarnowski was in to Exhibit stated: presented and the official record the next witness she County; Department Mineral read from the Sheriff’s record, parts in evi- certain of that and that record is County, It and has dence. is the official record of accepted as the record of the accident and what been happened.” original report. Z accident not
Exhibit was statute, required by the certified as such under seal as comply but such failure to with the statute was ground specified objection. as a
Although authority there is substantial that such particularly records and contained conclusions “public are not admissible in therein evidence as contemplated by statute,3 it records” such a is unneces- sary admissibility police time the to determine this reports as such. by person
This exhibit made who did not witness the accident, containing conclusions of the maker as to the prior impact, route of the two cars point impact, by and the course taken impact, cars after part by supplemented unintelligible in and estimated distances, could have substantially impeached been if the subject had maker been cross-examination.
The conclusions therein are in contradiction to the appellant’s contention he negligent, was not and sharp of the conflict in because the evidence relating to cause its admission is not the original photostat seal of film, be the or to such officer to be a or micro- true, copy, original or to full and be correct of the in his custody, may any proceeding be received evidence in action or state, courts this in like manner and with the like effect original produced. public as the could be if A record or document custody public state, public office, may in of a officer of this in a proved be admitted evidence court the certificate legal keeper genuine or custodian thereof authentic, seal, his if there be one annexed. (1951) ; 3 30Texas Law Review 112-113 Annot. 69 A.L.R.2d (1960). *6 Rule but is so to in 61 NRCP4 harmless error referred appellant inconsistent as to be with sub- to justice a new trial.5 stantial and to necessitate are incon- discloses which The record instructions a stat- (pertaining the effect of a violation of to sistent relating imputable negligence), ute, contrary to and to plaintiffs (advising jury the that there are two fact three), (stating in are and erroneous when fact there negligent, “you must E. Baker was that even if Robert damages plaintiff’s of each and return a fix the amount favor”), objection but no was made to their verdict merely point them mention to out instructions. We these substantially contributed could have such instructions inconsistency jury’s and confusion. to obvious the disposition appeal of this further our con- In view of assigned unnecessary. errors is of sideration for a new trial. and remanded Reversed J., concurs. Badt, C. concurring: J.,
Thompson, However, I agree would limit the result. discus- I with assignment regarding of appellant’s error the sion “Z”, prejudice inadmissibility the of Exhibit result- my judgment, into evidence. In ing admission from its appeal error, been otherwise without on record had the or of in either the admission the exclusion error 61. “No 4 Rule any ruling any defect in or order or error or and no evidence thing by any parties ground by is the court or of the or done omitted setting granting a or for aside verdict or for vacat a for ing, new disturbing judgment order, modifying a or unless or otherwise appears to court such action the inconsistent take refusal substantial disregard any stage every proceeding justice. at The court of must proceeding or in the does error defect which rights parties.” of the the substantial affect 5 Specific as of determinations to errors admission evi regarded in a case which have been harmless are dence precedents. a This is are seldom of value general principles, obvious. There few error such as will be treated as harm objected to, was not where the evidence where the error was less invited merely complaining party testimony it, now or where the supported proposition beyond a the harm as matter of But true law. may particular generalities, result from a such error dependent upon particular is facts of the case. another setting might entirely the same error have different influence Holtzofl:, 1353,pp. Barron and the decision.” 3 sec. 441 115. would, itself, require a “Z” the admission Exhibit trial. reversal new diagram indicated, “Z”
As heretofore Exhibit pur- the T-intersection the collision occurred. where ports before colli- of the two cars show direction sion, length point impact, direction of place highway, cars tire on the and the marks where following The exhibit was came to rest collision. area, diagram properly
variance with another evidence, also at variance with some received given. testimony prepared the oral The exhibit was *7 accident, deputy but sheriff who did not observe the trial, investigated At time of soon after it occurred. the represented deputy longer employed. that no was was living that available to was then in Arizona not he testify. deposition His had not obtained. been through
The exhibit was offered for introduction deputy, another who kept declared that she the of records the sheriff’s office. No foundation was estab- attempt in an lished to admit the exhibit as either a record, 51.030, public record, business NRS or as NRS properly 49.050. Whether the exhibit would have been statute, admitted under either proper had a foundation established, been is before us not for determination. offered, objection When interposed upon ground the hearsay. Clearly diagram of hearsay. is It was purpose proving, tending offered or at least prove, accuracy the truth and depicted matters was, therefore, thereon. It not admissible in the absence exception hearsay of an permitting rule its intro- exception I duction. find no such in this case.
Accordingly, question squarely presented is whether the by receiving error committed said exhibit in evidence meaning is harmless within 61, of NRCP importance require or of such as to reversal and new trial.
I find no substantial 61, difference between NRCP January 1, 1953, prior law, effective and the NCL 8622. appears In each it court, review, instance that the is granted opportunity whole, search the record as a judicial deciding exercise a discretion in whether
470 in nature. assigned or reversible harmless error is may granted so,
Though thus be the discretion this and should “be arbitrarily capriciously exercised be legal may have principles guided applicable by such determining the course recognized proper in become 484, 489, Goodman, 236 Nev. 68 justice.” v. Goodman 305, P.2d 307. announced, my from
It is belief that this court has time, guides judicial for the exercise time to certain review, as the admission or exclu- discretion on insofar I in civil concerned. shall men- sion evidence cases is tion of them: some probably a trial before court it will be held
1. reception incompetent not con that the evidence was arriving decision, competent if there is sidered in Duplan Duplantis support v. such decision. evidence to Brainard, 1014; Rehling 234, v. tis, 255 P. 38 50 Nev. 16, 167, 22, 144 P. 169. Nev. court, if the offered
2. In a trial before a evidence though received, perhaps erroneously, cumulative judge nature, it could not be said so it, probably upon considered will be based his decision Gowen, 34, 50, error. Backer v. 73 Nev. harmless Sinkey, 765, 773; Florey cf. v. 77 Nev. P.2d *8 271. P.2d jury, a if the evidence offered and
3. In a before case, erroneously it relates to issue received prejudicial. probably McLeod v. considered will be 566, 569, Lux, 447, 473, 153 P. 167 P. 40 Nev. Miller & 65, 873, Carner, 50, 27; 240 P.2d 69 Nev. Mikulich v. Franklin, 1; Vegas 880, Las v. 74 Nev. 38 A.L.R.2d Sun 282, 294, 867, 329 P.2d 873. jury, if the evidence offered and
4. In a trial before case, excluded, improperly to an issue in the relates probably prejudicial. considered error will be court’s Peak, 117, 138, 519, Nev. 140 P. v. Silver 37 Peterson 59, 839, Baber, 65, 527; Henry 334 P.2d 842. v. 75 Nev. guides Undoubtedly, have been announced other from 8622, 61, and it to time. Absent NRCP before NCL time reviewing might compel the court decide stare decisis precedent. according Because the mentioned to case statute, compulsion rule and not How- such does exist. ever, persuasive precedent guide effect of case cannot be denied. bar,
In the case at “Z” Exhibit cannot be labeled Gowen, cumulative and therefore Cf. Backer v. harmless. supra. contrary, To the it was in conflict with another diagram received evidence and also with some oral testimony. directly related to ultimate issues in the case, negligence necessity, Of cause.- author, contained the conclusions its who was subject cross examination. It was referred to argument County as the official of Mineral record accepted and “has been as the record the accident guides happened.” and what heretofore mentioned such indicate error to be McLeod nature. Lux, supra; Carner, supra; v. Miller & Mikulich v. Las Vegas Franklin, supra. searching v. Sun the entire suggest record I find no circumstances to a different result in this case. likely produce
A trial free from error is more just result than one in which error has occurred. To that end, this case should be tried anew.
I. H. KENT COMPANY FIRST NATIONAL AND NEVADA, Appellants, BANK OF K. HELEN v. MILLER, Respondent. No. 4414
November