Hotels El Rancho, Inc. v. Pray

• Decision Date: 10 December 1947
• Docket Number: 3471.
• Citation: 187 P.2d 568,64 Nev. 591
• Parties: HOTELS EL RANCHO, Inc., et al. v. PRAY.
• Court: Nevada Supreme Court

187 P.2d 568

64 Nev. 591

HOTELS EL RANCHO, Inc., et al. v. PRAY.

No. 3471.

Supreme Court of Nevada

December 10, 1947

Appeal from District Court, Eighth District, Clark County; A. S Henderson, Judge.

Action by Nevada Pray against Hotels El Rancho, Inc., a corporation Hotel Last Frontier, a partnership, and others, to recover damages for the death of plaintiff's son in a horse race. The district court granted a motion of nonsuit as to Hotels El Rancho, Inc., a corporation. From a judgment for the plaintiff against the remaining defendants and from an order denying the motion of the remaining defendants for a new trial, they appeal.

Judgment and order affirmed.

See also 176 P.2d 236.

Leo A. McNamee and George Rudiak, both of Las Vegas, for appellants.

Lewis & Hawkins, of Las Vegas, for respondent.

HORSEY, Justice.

For convenience, throughout this opinion the appellants will be referred to as defendants, and the respondent as plaintiff.

The above entitled action was commenced February 7, 1946, by Nevada Pray, the plaintiff, against the above named defendants, to recover damages for the death, by the alleged wrongful neglect of the defendants, of Carl Elvis Bales, the son of plaintiff and of one Orville D. Bales.

It is alleged in the complaint that the said Carl Elvis Bales was born February 29, 1932, in the City of Gary, Indiana, being of the age of about 16 years and 9 months at the time of his death. Plaintiff and the said Orville D. Bales, the boy's father, were divorced in the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, on the 12th day of December, 1943, and the custody of the said minor child, Carl Elvis Bales, was awarded to his mother, the plaintiff herein, and he was continuously in her custody until his death, on the 25th day of November, 1945, due, it is alleged in plaintiff's complaint, to the wrongful neglect of the defendants.

No question appears to have been raised in the lower court as to the right of the plaintiff to institute and maintain the action, as the surviving mother of the deceased.

The district court granted a motion for nonsuit as to the corporate defendant, Hotels El Rancho, Inc., a corporation (Tr. folios 613-615). The case came to trial before a jury in the said district court, May 6, 1946, the Hon. A. S Henderson, district judge, presiding. The trial was completed, and the verdict of the jury rendered and entered May 11, 1946, in favor of plaintiff and against the defendants, Hotel Last Frontier, a partnership, and the above named individuals comprising same, and awarding to said plaintiff damages in the sum of $8,000. On the said 11th day of May, 1946, judgment upon said verdict was rendered and entered, in faovr of plaintiff and against said partnership and individual defendants, that plaintiff have and recover said sum of $8,000, together with plaintiff's costs an disbursements, in the sum of $384.85. On June 1, 1946, the defendants moved for a new trial in the district court, upon the grounds stated in their notice of intention to move for a new trial (Tr., folios 1002-1006), which motion was argued, submitted, and, on said June 1, 1946, denied. It is from such judgment and the order denying defendants' motion for a new trial that the defendants, Hotel Last Frontier, a partnership, and the individual defendants comprising same, and above named in the title of the action, have appealed.

The district judge, at the trial, in the court's instruction No. 27, instructed the jury as follows:

'The jury is further instructed that it is alleged in the Complaint and admitted by the Answer, among other allegations and admissions set forth in said pleadings, that defendants, Hotel Last Frontier, a partnership, and William J. Moore, Jr., Ballard Barron, Harold Harris, Ted Jones, sued as Ted Janes, R.I. Payne, sued as R. J. Payne, Lynn Stocker, R. A. Higdon, sued as K. A. Higdon, Fred Morley, Fred Hoenscheidt, Jo Mattison Griffing, H. J. Griffith and H. J. Griffith, Trustee for Robert Earl Griffith, Jr., copartners associated in business under the fictitious name of Hotel Last Frontier, having decided to conduct a 'cross-country' race on the morning of November 25, 1945, over and upon certain unimproved sandy country lying immediately across highway 91 from said Hotel Last Frontier ground, over which premises and property they had theretofore conducted so-called treasure hunts on horse back, caused to be published in the Las Vegas Evening Review-Journal, a daily newspaper printed and circulated in Las Vegas, Nevada on November 21st and November 23d, 1945, notice that said cross-country race would be run on Sunday morning, November 25, 1945, over a '1/2 mile switch back course' for prizes designated in said notice to be given to the first three contestants to complete said course and finish said race; that the notice so published as aforesaid informed the public that the persons desiring to enter such cross-country race should register at a time and place designated in said notice. That the said Carl Elvis Bales, minor son of plaintiff who was then a healthy normal child presented himself as a contestant on said November 25, 1945, and registered as an entrant in said cross-country race; that thereafter he lined up at the starting point with the other entrants as directed; that upon the signal to go being given, said Carl Elvis Bales rode his horse along the course pointed out by the defendants, Hotel Last Frontier, a partnership, and the individual defendants as partners.

'That the said minor child, while on said horse, in an effort to win said cross-country race rode his horse directly for the southerly point of the knoll around which from right to left the riders participating in said race were required to circle before completing said race. That while on said course, the horse then being ridden by the said Carl Elvis Bales, now deceased, fell and threw deceased to the ground so violently that deceased was rendered unconscious and so badly injured that said child died within a few minutes without regaining consciousness.

'And in that connection you are further instructed that as to all matters so alleged and admitted by the pleadings, no evidence need be given relative to such allegations and admissions.'

In addition to the above stated facts admitted by the pleadings, other facts having an important bearing upon the legal situation in the case are either conceded, in effect, by the arguments in the briefs, or are clearly established by the evidence. Among such facts are the following:

That on October 27, 1945, in connection with the Navy Day celebration, a bombing demonstration was conducted near the Hotel Last Frontier, over and above the vacant land containing the course upon which the cross-country race involved in this case was run about a month later, on November 25, 1945; that numerous rocket missiles, or bombs, were, by the navy demonstrators, released and fired at a target consisting of mound, or knoll, about one fourth of a mile east of the Hotel Last Frontier, which mound, or knoll, was the half way point of the '1/2 mile switch back course' over which the cross-country race was run, November 25, 1945; that as a result of said bombing demonstration, numerous of such bombs, or rocket missiles, fell to the ground near, and, principally, south and west of said knoll, or mound; that upon coming in contact with the ground, these rocket missiles generally exploded, and 'churned or burrowed' their way into the ground, making holes, or depressions, therein, of various dimensions. These holes, or depressions, were numerous in the area adjacent to the mound, or knoll, mentioned. Matt Pray, the step-father of the deceased, Carl Elvis Bales, testified that he counted eight or ten of them. William J. Moore, Jr., the manager and director of the enterprise known as Hotel Last Frontier, and one of the defendants, testified, on that point, 'Well, I'll say this--that the ground was rough as the devil', that there was hole after hole out there, 'of every type'. (Tr., folios 134-137).

Gustave Martin Granstrol testified, in effect, that such holes were 'around two feet on the surface, and they funnelled down--2 1/2 feet around and they funnelled down about two feet, and they were just the size of the rocket. They were filled in with dirt if the rocket wasn't there, like a long funnel' (Tr., fol. 479, 480).

The substance of William J. Moore's testimony is that although he knew of the navy demonstrations, October 27, 1945, and that, acceding to the request of the chamber of commerce, the public were invited to that hotel to witness such demonstrations, and that bombs were dropped in the vicinity of the course proposed to be used for the cross-country race, he did not examine the course to see if it was safe to run horses thereon, until after the accident occurred, resulting in the Bales boy's death, November 25, 1945 (Tr., folios 108, 109).

Mr. Moore further testified that Miss Jerre Wyckoff was the employee of the hotel in charge of the conducting of the treasure hunt and cross-country race on November 25, 1945 (Tr., fol. 115). It appears from Mr. Moore's further testimony that he had never, prior to about ten days after the accident occurred, visited the course over which the races were conducted (Tr., folio 119).

Miss Geraldine Wyckoff testified, as a witness for defendants that from July 1, 1943 (Tr., fol. 644), until the middle of March, 1946 (Tr., fol. 619), she had been employed by, and had resided at, the Hotel Last Frontier; that she had charge of publicity and advertising in connection with the treasure hunt and cross-country race held by defendants on November 25, 1945, and made the arrangements for such events, fixed...