Adamson v. Bowker

• Decision Date: 21 February 1969
• Docket Number: No. 5562,5562
• Citation: 450 P.2d 796,85 Nev. 115
• Parties: Walter J. ADAMSON, Special Administrator of the Estate of Douglas Henry Adamson, Deceased, Appellant, v. Ryall A. BOWKER; Claude L. Keema, Sheriff of Lyon County, State of Nevada; Lee W. Littell, Deputy Sheriff of Lyon County, State of Nevada; Clair Pursel, Deputy Sheriff of Lyon County, State of Nevada; Phoenix Assurance Company of New York and Dr. Stanley Tebbe, Respondents.
• Court: Nevada Supreme Court

Page 796

450 P.2d 796

85 Nev. 115

Walter J. ADAMSON, Special Administrator of the Estate of Douglas Henry Adamson, Deceased, Appellant, v. Ryall A. BOWKER; Claude L. Keema, Sheriff of Lyon County,

State of Nevada; Lee W. Littell, Deputy Sheriff of Lyon

County, State of Nevada; Clair Pursel, Deputy Sheriff of

Lyon County, State of Nevada; Phoenix Assurance Company of

New York and Dr. Stanley Tebbe, Respondents.

No. 5562.

Supreme Court of Nevada.

Feb. 21, 1969.

Barry, Hall & McGehee, Reno, for appellant.

Goldwater, Taber, Hill & Mortimer, Vargas, Bartlett & Dixon and Albert F. Pagni, Reno, for respondents.

OPINION

BATJER, Justice.

Douglas Henry Adamson died in the Lyon County hospital, Yerington, Nevada, on March 8, 1965. After his death his brother, Walter J. Adamson, the appellant, as special administrator, brought an action alleging that the respondents committed tortious acts against Douglas Henry Adamson during his lifetime and that their wrongful acts caused his death. The respondent, Phoenix Assurance Company of New York, who furnished the bonds for the public officers of Lyon County, moved that it be dismissed from the complaint: After its motion was denied it cross-claimed against the other respondents whom it had bonded.

On February 20, 1965, Lee W. Littell and Clair Pursel, who, at that time, were deputy sheriffs of Lyon County, arrested Douglas Henry Adamson at the home of the appellant on a charge of grand larceny. The deputy sheriffs were acting under the authority of a warrant of arrest issued out of the Justice's Court of Mason Valley Township, on a complaint signed by Ryall A. Bowker, one of the defendants in the court below.

At the time of the arrest, Vera Adamson, the wife of the appellant, informed the deputies that her brother-in-law was ill and needed medical attention. She also warned them that incarceration would cause his condition to deteriorate. In her deposition, Vera Adamson stated that, because her brother-in-law's supply of tedral was low at the time of his arrest, she contacted Stanley Tebbe, M.D., and requested that the prescription for tedral be refilled. Dr. Tebbe had previously ministered to Douglas Henry Adamson and is the county physician for Lyon County. The prescription for tedral was not filled until February 25, 1965.

Douglas Henry Adamson was released from jail on February 25, 1965, and was hospitalized on March 3, 1965, five days before his death. An autopsy revealed that he died of cardiac hypertrophy with atrial thrombi and focal subacute infarction, acute pericarditis and pulmonary emboli.

All defendants below, with the exception of Ryall A. Bowker, moved for summary judgment based on all the records and pleadings, the depositions of Walter J. Adamson and Vera Adamson and the affidavit of Lynn B. Gerow, M.D. The affidavit of Dr. Gerow was given in answer to a hypothetical question posed by the respondents, and the appellant admits that the assumed facts appearing in the question were favorable to the appellant's position. In answer to a question: 'Whether or not the failure of defendants to provide medical care and medication during the period of time that Douglas Henry Adamson was incarcerated in the Lyon County jail was the cause of the death of Douglas Henry Adamson.' Dr. Gerow stated: '(I)t is affiant's opinion that the conditions described by Dr. Decker were the reason the decedent died; decedent had arterio-sclerotic heart disease for a rather lengthy period of time and this disease was complicated by hypertension, acute pericarditis and pulmonary emboli.

'It is the opinion of this affiant that the medicine prescribed by Dr. Tebbe for the decedent would not have prolonged his life even though he would have been able to take it regularly during the time he was incarcerated. There are numerous gross and miscroscopic conditions also described by Dr. Decker, which would bear out the cause of death described in the autopsy protocol, and none of these causes would have responded to the medication prescribed, namely, aspirin and tedral.'

The appellant contends that the trial court erred when it granted respondents' motion for summary judgment and refused to grant him leave to amend his complaint. We disagree and find no error by that court.

1. The affidavit of Dr. Gerow specifically recites that Douglas Henry Adamson died of natural causes and that to have supplied him with tedral and aspirin during his incarceration would not have prolonged or preserved his life. The appellant did not file a counter-affidavit nor did he produce any other evidentiary material to establish that there remained a genuine issue of fact to be determined at trial on the question of wrongful death.

We next turn to consider the remainder of the allegations in the appellant's pleadings. Dr. Gerow's affidavit in no way touches upon the other allegation of tortious conduct attributed to the respondents. However, in answers to interrogatories propounded by the appellant, Lee W. Littell, one of the respondents, testified under oath, that on the day he arrested Douglas Henry Adamson he called Dr. Tebbe who came to the office of the Sheriff of Lyon County, and there, in the presence of Littell and Clair Pursel, examined the suspect before he was placed in jail. In their depositions both Littell and Dr. Tebbe testified to Dr. Tebbe's examination of the deceased before his incarceration and they both testified on their personal knowledge about the treatment and care furnished the deceased during his stay in the Lyon County jail.

Neither the depositions of Dr. Stanley Tebbe and Lee W. Littell nor the answers to interrogatories given by Littell were ever refuted or controverted by the appellant. The depositions and answers were on file in the case and a part of the record when the respondents' motion for summary judgment was heard by the trial court. It might be argued that the depositions of the appellant and Vera Adamson should be deemed to refute the deposition of Dr. Tebbe and the deposition and answers to interrogatories of Lee W. Lettell. Close examinations of the depositions of the appellant and Vera Adamson reveals testimony which is either hearsay or incompetent or merely suppositions and conclusions and could not be considered by the trial court to controvert the testimony of the respondents.

The admissibility of evidence on a motion for summary judgment is subject to NRCP 43(a), ¹ and evidence that would be inadmissible at the trial of the case is inadmissible on a motion for summary judgment. The trial court may not consider hearsay or other inadmissible evidence whether it be in the form of direct testimony given in court of whether it appears in a deposition or answers to interrogatories. Lake v. Konstantinu, 189 So.2d 171 (Fla.App.1966). In American Securit Co. v. Hamilton Glass Co., 254 F.2d 889 (7th Cir. 1958), the court said: '* * * (T)estimony contained in depositions used in a summary judgment proceeding is subject to the rules of evidence, as referred to in rule 43(a) governing admissibility.'

The trial court is not limited to a consideration of the affidavit and depositions relied on by the moving party but is required by NRCP 56(c) ² to consider all pleadings, depositions, answers to interrogatories and admissions on file together with affidavits when ruling on a motion for summary judgment.

We find that the trial court, in reaching its decision properly found that the depositions and pleadings of the appellant, when viewed in the light most favorable to his position, presented no genuine issue as to any material fact.

NRCP 56(e) ³ unequivocally provides that when there has been a motion for summary judgment supported by affidavits or other evidentiary material, the adverse party may not rest upon the allegations of his pleading but he must by affidavit or other evidentiary matter set forth specific facts showing that there is a genuine issue for trial. Tobler & Oliver Const. Co. v. Board of Trustees, 84...