Hotel Riviera, Inc. v. Short

• Decision Date: 24 November 1964
• Docket Number: A,No. 369,No. 4734,369,4734
• Citation: 20 A.L.R.3d 648,396 P.2d 855,80 Nev. 505
• Parties: , 20 A.L.R.3d 648 HOTEL RIVIERA, INC., a Nevada corporation, Musicians' Protective Union, LocalF. of M. of Las Vegas, Nevada, Lewis Elias, Appellants, v. Benny SHORT, Respondent.
• Court: Nevada Supreme Court

Page 855

396 P.2d 855

80 Nev. 505, 20 A.L.R.3d 648

HOTEL RIVIERA, INC., a Nevada corporation, Musicians' Protective Union, Local No. 369, A. F. of M. of Las Vegas, Nevada, Lewis Elias, Appellants, v. Benny SHORT, Respondent.

No. 4734.

Supreme Court of Nevada.

Nov. 24, 1964.

Rehearing Denied Dec. 11, 1964.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, and Foley Brothers, Las Vegas, for Hotel Riviera, Inc.

Lester H. Berkson, Las Vegas, Harold A. Slane, Sr., and Louis Hersh, Los Angeles, Cal., for Musicians' Protective Union.

Brown & Matteucci, Las Vegas, for Lewis Elias.

Morton Galane, Las Vegas, for respondent.

BADT, Cheif Justice.

This case is before us for the second time. Heretofore we reversed the lower court, which had entered summary judgment for the defendants, because we felt that there was some evidence that defendant were guilty of a conspiracy, and that accordingly the case should have gone to the jury. Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979. After remittitur a trial took place and the jury brought in its verdict for Short, awarding him $9,600 compensatory damages against all the defendants. In addition thereto, it awarded $25,000 punitive damage against the Riviera and $25,000 against the Union. The trial court denied a new trial but ordered a remittitur of $15,000 to the Riviera and $15,000 to the Union. Each of the defendants has appealed from the judgment.

For the facts of the case, see the opinion in Short v. Hotel Riviera, Inc., supra. We have examined the transcript and are satisfied that the same facts were proved by Short in the trial as were proved in the first case resulting in the summary judgment, besides certain other facts hereinafter mentioned.

1. As noted, the case was tried in the Eighth Judicial District Court, in and for Clark County. It was assigned by Honorable John Mowbray of that court to Honorable Taylor H. Wines, of the Fourth Judicial District, for trial. A statutory affidavit of prejudice was filed by Riviera against Judge Wines. It was later stricken on motion and appellant Riviera assigns this as error. The record discloses that on June 9, 1963, the parties appeared before Judge Mowbray to arrive at a trial setting. Mr. John Foley, of Foley Brothers, of Las Vegas, indicated that both he and Mr. William K. Woodburn, of Woodburn, Forman, Wedge, Blakey, Folsom & Hug, of Reno, would actively engage in the trial in behalf of Riviera. Mr. Foley was present in court but no one from the Woodburn firm. 'By the Court: Well, why don't you attempt to contact Mr. Woodburn, if you can, and I will set this matter down for 4:00 o'clock this afternoon and, in the meantime, I will call Judge Wines and see if he can hear it on September 30th.

'By Mr. Foley: * * * I feel that if we could ascertain any possibility of Judge Wines' disposition or perhaps into October some time, and where we would be available in October rather than just one date, we could get several dates from Judge Wines because I think we have to do a lot of jockeying to get a trial of that kind on the calendar, everybody has to meet other trial commitments.

'By the Court: Well, we will continue this matter until the hour of 4:00 o'clock this afternoon and at that time we will set it down for a firm setting.'

In the afternoon session the following appears:

'By the Court: Gentlemen, I have telephoned Judge Wines in Elko. He was on the bench and he returned the call to me when he was able to do so. He has the week of September 30th or October 21 open. He can come either time.

'By Mr. Foley: Your Honor, I would respectfully request the October 21st date.

'By the Court: It will be the order of the Court that the case be set down for trial before a jury, Honorable Taylor Wines presiding, at the hour of ten o'clock A.M., Monday, October 21, 1963. That will be the final order.'

NRS 1.230 provides for the disqualification of a judge upon the filing of an affidavit of prejudice, in which case the judge shall proceed no further in the action, but transfer the same to another judge as more particularly provided. The affidavit of prejudice must be filed before the hearing on any contested matter in the action has commenced, and in any event at least 10 days before the date set for the trial of the action and shall be accompanied by the attorneys' certificate of good faith and by the payment to the clerk of the court of $25 which shall be placed to the credit of the district judges' travelling fund. The statute omits the former provision that '[i]f the parties agree upon a judge then such judge shall be selected.' Even with the elimination of such provision, we see no escape from the fact that an attorney may lose his right to file the statutory affidavit of prejudice (by not filing it is time or by failing to attach the required certificate of good faith or by failing to pay the required $25 fee), or may waive his right to file such affidvit (by agreeing to try the case before the judge called in by the disqualified judge). From the proceedings as above quoted, we are satisfied that counsel waived the right to file the statutory affidavit. ¹ It is clear that the parties agreed upon Judge Wines to try the case. This fact clearly distinguishes this case from those relied upon by appellant Riviera, namely, State ex rel. Beach v. Fifth Judicial District Court, 53 Nev. 444, 5 P.2d 535; State ex rel. Stokes v. Second Judicial District Court, 55 Nev. 115, 27 P.2d 534; State ex rel. Warren v. Sixth Judicial District Court, 57 Nev. 214, 61 P.2d 6; State ex rel. Kline v. Eighth Judicial District Court, 70 Nev. 172, 264 P.2d 396; State ex rel. Moore v. Fourth Judicial District Court, 77 Nev. 357, 364 P.2d 1073. Nor is the very apparent waiver influenced by the decisions of this court in Melahn v. Melahn, 78 Nev. 162, 370 P.2d 213, or Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883. The order striking the affidavit of prejudice, following the waiver implicit in agreement of counsel that Judge Wines might try the case, was proper. There is no merit to this assignment.

2. Error is assigned in the court's denial of a motion to strike certain testimony as hearsay. Bronson was stage manager and his duties wer to handle the running of the stage, see that the acts got in on time, the show was there, and was presented properly. Short was asked to state a conversation with Bronson. Short answered:

'I said 'Milt, Benny Short calling. Could you tell me why I received the notice from the Riviera Hotel?' He said, 'I don't know. I think Mr. Goffstein or Atol wanted to make a change.' I said 'Well, Milt, can you tell me was it musical or personal?' Mr. Bronson said 'I don't know,' he said, 'I guess it was musical.' I said, 'Well, who are you going to get, Torris Brand?' Mr. Bronson said 'No, they are just going to get another leader.' I said, 'Where you going to get the musicians from?' He said, 'We are going to use your guys.' I said, 'You can't do that, Milt,' I said, 'It is my band.' He said, 'Well, don't argue with me,' he said, 'Benny, the union said it was okay.'

No objection was made. However, on cross-examination, counsel for Riviera exhibited to Short the list of officers of Hotel Riviera and asked Short if Bronson's name appeared thereon. Short replied that he was not listed. Thereupon the motion was made to strike the testimony 'on the grounds and for the reason that it is objectionable for there is no showing of the authority of Mr. Bronson ot make any statement that is binding on the party defendant hotel.'

The learned trial judge was justified in denying to motion. Counsel for the hotel did not have to wait till cross-examination to determine that Bronson was not a corporate officer. He had the list of officers in his hand. He was the attorney for the hotel and was entirely familiar with the fact that Bronson was not a corporate officer. Even if he were not an officer, he was an employee whose duties familiarized him with situations involving the employment of the relief orchestra and the leader of the relief orchestra. He was familiar with the facts that he stated to Short. The only statement that was hearsay was his statement that 'the union said it was okay.' That statement was patently hearsay on its face and did not have to wait for cross-examination to establish that fact. The failure to object or to move at once to strike that statement was a waiver of objection. Barra v. Dumais, 76 Nev. 409, 414, 356 P.2d 124, 126, and cases therein cited. We find no merit in this assignment of error.

Although under Riviera's contract with Short the hotel had a right to terminate the employment at any time on a specified notice, Riviera attempted to show as the reason for its cancellation of Short's contract (which cancellation resulted in the employment of Elias as the leader of Short's relief orchestra upon the resignation of all members of the orchestra from Short's employment and their acception employment under Elias, with the Union's approval) that Riviera sought to make it appear that the dismissal of Short was the result of complaints by the artists appearing on Rivera's programs. When asked to name the artists who had complained, the Riviera named Belefonte and Marlene Dietrich, but Belefonte and Dietrich's secretary absolutely disclaimed any complaint against Short or that they had anything to do with Short. The jury and a right to infer that Riviera's claim that its artists had complained about Short was a fictitious charge, without substantiation.

3. Prejudicial error and misconduct are assigned in the argument of respondent's counsel to the jury. Although no objection was made and counsel was not interrupted during the entire course of his argument by any assertion that such argument was misconduct and no appeal was made to the court for an instruction to the jury to disregard any statements made by counsel, appellants in support of this assignment devoted page after page after...