Nicklo v. Peter Pan Playskool

• Decision Date: 02 March 1981
• Docket Number: No. 12162,12162
• Parties: Joyce C. NICKLO, Appellant, v. PETER PAN PLAYSKOOL, Respondent.
• Court: Nevada Supreme Court

Page 22

624 P.2d 22

97 Nev. 73

Joyce C. NICKLO, Appellant, v. PETER PAN PLAYSKOOL, Respondent.

No. 12162.

Supreme Court of Nevada.

March 2, 1981.

Richard W. Myers, Las Vegas, for appellant.

John P. Fadgen, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Nicklo placed her child in the custody of respondent Peter Pan Playskool for day care. She had previously had difficulties with her estranged husband, who had once abducted the child while exercising his visitation privileges under their separation agreement. According to Nicklo's testimony, she informed Cindy Reynolds, the director of Playskool, at the time of the child's registration at Playskool, that the child had been abducted by his father before, and that the child was not to be released to him. Reynolds allegedly promised that the father would "never get (the child) out of her school."

About a month after the child had been attending Playskool, the father appeared and the child was released to him. Nicklo testified that Reynolds called her and told her that "she had forgotten" not to release the child to his father. The father took the child to Florida, and Nicklo expended $2,800 in travel and litigation expenses in order to regain custody of the child. She sued Playskool for this amount for breach of its contract not to release the child.

At trial, the district court struck all of Nicklo's testimony relating to her conversations with Reynolds, who was then dead, under former NRS 48.064 (repealed 1979 Nev.Stats. ch. 134, § 1, at 198), the "dead person" statute, ruling that her testimony was not corroborated. The district court also quashed a subpoena duces tecum to the child welfare authorities in Clark County relating to a child custody report which had been prepared on Nicklo and her husband (in which Reynolds allegedly admitted to the investigator that she had forgotten her promise to Nicklo not to release the child to his father) on the ground that the report was confidential. At the close of the trial, judgment was rendered in favor of Playskool, and Nicklo appeals.

Two issues are presented: (1) whether it was error to strike all testimony relating to Reynolds' promise not to release the child, under NRS 48.064, and (2) whether it was error to refuse to order production of the child custody report.

Nicklo's testimony relating to her conversation with Reynolds was the only live evidence of the conversation. However, a deposition of Reynolds taken by her attorneys before her death was published at trial, on motion of Playskool's counsel, in which Reynolds denied making a promise not to release the child.

In jurisdictions which have dead person statutes, introduction of evidence of the dead person's statements, by the party who represents the interest of the decedent, waives the protection of the statute. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). This fits logically into the purpose of the dead person rule, which is intended "to place the living and dead on terms of perfect equality, and, the dead being not able to testify, the living shall not." Zeigler v. Moore, 75 Nev. 91, 99, 355 P.2d 425, 430 (1959). By publication of Reynolds' deposition, the dead person, in effect, was able to testify and therefore, it was error to strike Nicklo's testimony. This conclusion is supported by NRCP 32(a)(3) which provides that "(t)he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead...." Reading this rule along with NRCP 32(a), which makes a deposition admissible against any party which had notice of the taking of the deposition "so far as admissible under the rules of evidence applied as though the witness were then present and testifying ...," the deposition is meant to be the equivalent of live testimony. The deposition was offered by Playskool to support its position that no contract existed, and the court's ruling deprived Nicklo of her opportunity to contradict it. This is inconsistent with the purpose intended to be accomplished by the dead person statute, and striking Nicklo's testimony was error.

Further, the statute provided that testimony as to transactions with the deceased is admissible if supported by corroborative evidence. The record card of the school was admitted into evidence. It shows the mother's name, and the name of a relative to be called in case of an emergency. There is no entry, except for a line drawn through the space, under the place for the father's name. In the space entitled "operator to contact" (before the child is released to anyone), only the mother's space was checked. While this does not corroborate the actual conversation with...