*1 OPINION
Per Curiam: The this court to set aside appellants request their convic- drug contending tions for offenses that the trial erred in court give certain refusing to instructions to and in receiving certain testimony. rebuttal Neither contention has merit. instructions,
The refused concerning entrapment, and offense, regarding lesser included were fully explained by other gave instructions the court State, 373, jury. (1975). Ricci v. 91 Nev. P.2d 79 The rebuttal testimony given aby police concerning officer conversation with Heiar Appellant prior administering examination. The polygraph testimony properly admitted. State, 443, (1975).
Gardner v.
The convictions are affirmed. PRIVETTE, Jr., ALVAN L. v. GUY FAULK- Appellant, Special NER, Administrator Estate BURKE, EVERETT A. Deceased,
No. 7992 June
Erickson, Swainston, Reno, Thorpe for Appellant. Osborne, Echeverría & Reno, for
OPINION J.: Zenoff, By a several from bottle sips braced with October On Privette, Jr., Everett Burke and Luke L. Alvan brandy, Reno, trip to eastern
Aluevich, hunting embarked all vehicle, of the chores began Nevada.. Fernley, driver until the reached party known to and was through neither Burke nor Fernley, passing Nevada. After of the anything including identity remembered Privette tragic until after accident of Burke’s automobile driver the life of Luke Aluevich. which took Lovelock, Nevada, the Burke vehicle miles east of Twenty Meehan, Mathias swerved driven narrowly passed vehicle lane, hit a right of a and trailer road- in front semi-truck highway dividing side back into sign, swung separation automobile, careened struck Meehan’s lanes expressway, feet ditch, into a airborne approximately became for end until came rest. All three men flipped then end over was almost were thrown from the vehicle. Aluevich killed badly injured. and Privette and Burke were immediately trial, traveling that he approximately Meehan testified miles hour he overtaken Burke per miles speed he estimated to be approximately per hour. injuries commenced an action for his Burke against
Privette who later directly died from causes not related the accident. against suit was continued Administrator Special
Burke’s estate and favor culminated in verdict in defendant. *3 are appeal,
On we with the issues: presented following 1. Did the trial court err to refusing in the jury instruct that, evidence, absent direct there exists a the presumption that owner of a vehicle is riding the driver if he is in it at the time of accident? an
2. Was it error for the trial court to to permit counsel tell the in jury closing argument contributory negligence that in “any degree” would preclude recovery?
3. Was error committed the trial gave court a jury reciting instruction verbatim criminal statute defining princi- to a pals crime? view nature and character the evidence pro- trial, at
duced was it the error for trial to court instruct the jury on the defense of of risk? assumption trial, the circumstantial evidence establishing identity the the the driver at time of the accident was conflicting. automobile,
owner of the nearly new was known be driving to time the it was loaded with supplies to the time the hunt- ing party through drove The Fernley. party had scheduled no reaching until stops Lovelock. Privette remembers that he was seat, in the back in Aluevich the front passenger’s seat and that driving. Burke was Burke’s physical injuries arguably suggested that he struck the steering wheel upon exiting the vehicle. How- ever, neither Privette Burke nor could remember who was driv- at time ing the of the mishap nor of the details.
Evidence consisting of the position of the bodies after the accident, the nature of their respective injuries, past experience Privette and fishing with hunting trips on prior others driving over chores had taken the where Privette
Burke and other evidence intoxicated drive too he felt Burke was driving turn the over habitually Burke indicating that contradicted the posi- on such trips companions duties other the that he tive evidence driver. the car at the time have may
That Privette determining great importance is of accident obviously at of the evidence presented negligence. of Burke’s None issue bearing on the evidence trial could be characterized direct Direct evidence driver. identity issue as to the an believed, fact in issue without aid which, if proves (Colo. 1950); Sulli- Berger People, inference. (Ore. States Power van v. Mountain embraces owner-driver Thus, pre- if law this state sumption, accordingly. have been instructed See should NRS 47.200. are more than rules of evidence
Presumptions no predicated which, and general experience, present on probability of a has context, shown that say experience its This likely the vehicle is driver. present which, an identical probability translates into experience presump- the foundation for the owner-driver together, form on at the See Treatise Evidence Thayer, Preliminary tion. A Law, (1898). Common legislature pre-
Because the did not include disputable presumptions NRS 47.2501 which lists sumption in Disputable presumptions. presumptions All are 1 NRS 47.250 disputable. following are of that kind: 1. That an unlawful act done with unlawful intent. *4 ordinary voluntary person consequences his That of 2. a intends act. willfully suppressed produced. That evidence 3. adverse higher being pro- would be from inferior 4. That evidence adverse duced. money paid by one due to another to latter. 5. That was thing by belonged to That a another latter. 6. delivered to things person by possesses a That are owned him. 7. exercising person property the owner from That a 8. is acts it, reputation ownership. over or common of his duty regularly performed. That official has been 9. judge, acting such, as 10. That court or or whether this a state acting juris- country, or was the lawful exercise his state diction.
357 does not type, preclude its existence. The list is illustra- tive, 601, Agnew, not exclusive. 107 People See (Cal. 1940). 604-05 weight authority, appears, it favors the owner-driver presumption. v. National State Bank of 505 Brayman (Colo. 1973); Mueller, P.2d 11 121 Sprader v. N.W.2d 176 (Minn. 1963); Moore v. (Tenn. 1956); App. cf. Mt. Rocky Produce 369 P.2d (1962), and Zimmerman v. District (1958); contra, Nev. 332 P.2d Fidelity Casualty (Mo. Co. of N.Y. v. Western Cas. & S. 1960), App. compare Campbell 439 S.W.2d 1969). The (Mo.App. rationale view majority supporting the persuasive we now formally acknowledge is and existence a as such within embodied the law this state. stated,
As previously there is substantial the rec- conflict in ord as to who was the car the time of at driving the accident. juncture this in the have no proceedings, way we of ascer- taining whether Privette was denied at trial recovery because the jury would not speculate to who car was or whether he was recovery denied because it was he found that was contributorily negligent or that he the risk. How- assumed ever, an examination of the record does not obviate the possi- bility jury, that the heeding court’s admonition against speculation, denied recovery Privette because the to both circum- stantial presented equivocal sides was too and judicial record, conclusive, correctly 11. That does still not rights or set of the parties. determine forth writing truly 12. That a dated. is duly regu- That a letter directed and mailed 13. received in mail, lar course of the person years 14. not heard That from in 7 dead. is legitimate. 15. That a child born in lawful wedlock obeyed. 16. That the law been has person, duty convey a trustee or other to 17. That real property particular person, actually conveyed him, has necessary perfect person such the title of such or his successor interest. not Code: governed situations Uniform Commercial obligation up paid. (a) debtor an private has That delivered been (b) regular. That transactions have been fair (c) ordinary That the course of business has followed. (d) That there was consideration for a written good sufficient contract. *5 358 anything as to conflicting support speculation.
so hopelessly on the owner-driver presumption Had the instruction the burden of would have shifted to given requested, proof very presumption result, the defendant to counter and have been different. NRS 47.180.2 likely, would warranted, reversal for a new trial is further discus- Because However, errors is unnecessary. sion additional purported can be we note some merit in the issues advanced which avoided at retrial.
Reversed and remanded.
Batjer JJ., Thompson, concur. J., dissenting: C.
Gunderson, I dissent. respectfully verdict,
The majority
jury’s
here reverse a
solemn
made after
assessing
light
wisdom,
all the evidence in the
of their combined
because the district
to instruct the
to accord
court declined
evidence, i.e.,
to one item of
special
continuing weight
all the
using.
travelers were
this,
that the
Concerning
my
say
“weight
brethren
author
ity” recognizes the existence of a
that the
presumption
the vehicle was
if such vehicle
in an acci
driving,
was involved
However,
dent.
note that
cite a
although
majority
while I
cases,
total
seven
only
colorably
three
those cases even
support'their
and of those three at least one
based
position,1
statute.2
express
remaining
Two
cases hold
whatever,3
against any .owner-driver
and the
others are not even
limited
My very
point.4
remotely
Effect;
Presumptions generally:
2 NRS 47.18
direct
evidence.
presumption,
presumption against
1. A
than
the accused in
action,
imposes
party against
a criminal
on the
whom is directed
proving
presumed
burden of
the nonexistence of the
fact
is more
probable thán its existence.
applied
presumptions,
2. As
“direct evidence”
means
presumed
which tends
establish
existence or nonexistence of the
independently
fact
of the basic facts.
(Colo.
1 Brayman v. National
Bank of
Moreover, I note that at least some states which an recognize only do so in the “presumption” context of rule, another recognizes which that such evapo “presumption” when any contrary rates evidence is adduced.6 That is case two, three, not all upon in states whose decisions my However, brethren rely.7 Nevada, not be the would case in Nevada, for in when a true is presumption recognized, it not only fixes the of going burden forward with evidence, shifts the burden of proof.8 case, Privette,
In
instant
there was evidence that
rathér
Thus,
driving.9
Colorado,
than
in Tennessee and
brethren
my
rely,
decisions
Privette
not be
entitled to an instruction concerning an owner-driver presump
tion, because such
have
presumption would
as
evaporated
soon
as Burke met his
of going
burden
forward with evidence. How
ever, under the Nevada mutation of the Tennessee-Colorado
rule,
otherwise;
my brethren here
case
adopt,
is
my
evidence,
as
brethren candidly state, despite Burke’s
allow
ing
result,
Privette such an owner-driver
“the
presumption,
very
likely,
(If
would have been
my
different.”
adopted
brethren
“evaporating” presumption,
like that recognized
the deci
by
cite,
sions they
all,
the result would not be
of
affected at
course.)
The Missouri
Court has
“The
said:
recognition
Supreme
5 Fidelity Casualty
v. Western Gas &
cited note
of. N.Y.
S.
3;
3;
Bigham,
Cambell v.
cited note Morris v.
8 NRS and NRS frequently 9 Privette testified that Burke turned .over the. drinking. similarly. him Carl Reese Mrs. Burke testified Injuries arguably might finding sustained Burke and Privette sustain driving.. that Burke was not so goes far and interferes with too such as to make its unwise. proof adoption burden plaintiff’s addition, far-reaching proposition of such a recognition to the judicial rather than belongs legislature, properly Indeed, may ques- one even government.”10 branch of our state or, rather, constitutional, tion whether such process.11 so in rational basis as to offend due lacking of the vehicle these travelers Rationally, ownership Burke’s evidence, having slight signifi- using Were was but piece matters cance to other considered compared evidentiary this, no ownership and accorded his They obviously saw jury. worth, light significance more than it was considered in however, brethren, would undo My all other known facts. above work, all exalt fact Burke’s jury’s evidence, but facts, holding it not sufficient significant only shift, itself defend- plaintiff and of permanently, ant, driving, who was proving the burden *7 left the by all road. occupied
Mowbray, L, concurs. WHEBY, Jr., WARDEN, Appellant,
EARL M. PRISON, RESPONDENT. NEVADA STATE No. WHEBY, Appellant, THE
EARL STATE MELVIN NEVADA, OF
No.
June 10 Fidelity S. of N.Y. Western Gas & Henderson, example: Co. v. U.S. 11 Seefor Western & Atl. R. per (1929), striking which affected the burden of suasion.