Zeigler v. Moore

• Decision Date: 09 February 1959
• Docket Number: No. 4092,4092
• Citation: 75 Nev. 91,335 P.2d 425
• Parties: Eula Lovell ZEIGLER, Appellant, v. Robert MOORE, Administrator of the Estate of Al Christ, Deceased, Respondent.
• Court: Nevada Supreme Court

Page 425

335 P.2d 425

75 Nev. 91

Eula Lovell ZEIGLER, Appellant, v. Robert MOORE, Administrator of the Estate of Al Christ, Deceased, Respondent.

No. 4092.

Supreme Court of Nevada.

Feb. 9, 1959.

A. D. Jensen, Reno, for appellant.

Goldwater, Taber & Hill, Reno, for respondent.

BADT, Justice.

This appeal is taken from an order and judgment of involuntary dismissal entered on defendant's motion under Rule 41(b) NRCP at the conclusion of plaintiff's case.

Plaintiff sued one Al Christ for damages alleging that her automobile was struck in the rear by a car negligently operated by Christ in August 1955 on Highway 40 about one and one-half miles west of Winnemucca, while plaintiff was driving easterly toward that city. Christ answered, denying negligence but admitting a collision between the two cars. He also pleaded plaintiff's contributory negligence. Christ died in May 1957 and Robert Moore was substituted as his administrator before trial. At the trial the court excluded under the dead man's rule certain testimony of the plaintiff and of plaintiff's witness, sheriff Delbert Moore. These and other rulings are assigned as error.

(1) An insurance adjuster had taken statements from both plaintiff and the decedent, which statements were written in longhand by the adjuster and signed by the parties. Plaintiff moved under Rule 34 for an order for the production of these documents so that the same might be inspected and copied, and assigns error and prejudice in the denial of such motion. The record shows, however, that a true and correct copy of the original statements taken was produced in open court and read into the record and is actually a part of the record on this appeal. If a discovery of the nature and contents of the statements was necessary to the prosecution of plaintiff's case, copies of the statements were before her. It is so evident that plaintiff was in no way prejudiced by the denial of her motion that discussion of the error assigned is unnecessary.

(It should be noted that plaintiff had been permitted to read the copies of the statements into the record for the purpose of making an offer of proof. She then offered the copy of her own statement in evidence. An objection was sustained on the ground that if her direct testimony was inadmissible under the dead man's rule her extrajudicial statement was, a fortiori, inadmissible. Plaintiff then offered the copy of the statement made by the decedent, but immediately withdrew the offer. All of this was without the presence of the jury. It may be noted also that no objection was made to either statement on the ground that it was a copy.)

(2) Delbert Moore, sheriff of Humboldt County, testified that Christ, after the accident, had come to the office and made an 'accident report' and, in his conversation in making the report, talked to the witness 'about how the accident happened.' He was then asked: 'What did he tell you?' Objection on the ground 'that this witness is rendered incompetent by reason of § 48.010 NRS' was sustained.

The statute commonly known as the dead man's rule now appears, in pertinent part, in our codes as NRS 48.010 and 48.030, as follows:

'48.010 1. All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses in any action or proceeding in any court of the state. Facts which, by the common law, would cause the exclusion of witnesses, may still be shown for the purpose of affecting their credibility. No person shall be allowed to testify:

'(a) When the other party to the transaction is dead.

'(b) When the opposite party to the action, * * * is the representative of a deceased person, when the facts to be proven transpired before the death of such deceased person; * * *

'48.030 The following persons cannot be witnesses: * * *

'3. Parties to an action * * * against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person.'

The present statute as thus quoted is its present form after having been subjected to a number of amendments, all of which modified the common-law rule disqualifying as witnesses all persons interested in the event of the action, generally recognized to mean that the witness would either gain or lose by direct legal operation or effect of the judgment. It should be noted that such rule was one of disqualification of witnesses and did not relate to the witness' testimony.

The error assigned in sustaining the objection to the testimony of sheriff Delbert Moore as to statements made to him by the decedent is well taken. The statutory exclusion of the testimony of witnesses under the sections above quoted has been consistently held by this court not to apply to disinterested third persons. Burgess v. Helm, 24 Nev. 242, 51 P. 1025; In re Kimble's Estate (Kimble v. First National Bank), 73 Nev. 25, 307 P.2d 615; Onesti v. Samoville, 48 Nev. 441, 233 P. 846; Su Lee v. Peck, 49 Nev. 124, 240 P. 435; Bright v. Virginia & Gold Hill Water Co., 9 Cir., 270 F. 410.

Respondent contends that even if the order excluding Delbert Moore's testimony was error, it could not possibly have prejudiced appellant, was harmless error and not ground for reversal. Respondent bases this contention upon the offer of proof that followed the court's ruling, namely, that the sheriff would testify that Christ told him shortly after the accident 'that he, Christ, hit the plaintiff's car in the rear end, and that's the end of the offer of proof, your Honor.' Respondent contends that such testimony would establish the mere fact that an accident had occurred without any inference of negligence. At this point, however, there had been no evidence in the case that Christ's car had struck appellant's car in the rear. While it is true that this fact alone would not necessarily establish negligence on Christ's part, there can be no doubt that it would constitute a part of such proof. The exclusion of the evidence was therefore prejudicial. New trial must be ordered.

(3) Appellant assigns as error the court's ruling precluding appellant from testifying as to any fact prior to Christ's death. The position taken by the respective parties is somewhat confusing. Respondent, in support of the court's ruling, recites the way the issue arose as follows: 'At the trial appellant was called as a witness in her own behalf to testify to the facts of the accident' and says that the question presented is 'whether the survivor of an automobile accident can give uncontradicted testimony as to the manner in which the collision occurred when the lips of the other party are sealed by death.' However, respondent's objection as made in the trial court and the rulings which the trial court was prevailed on to make by reason of such objection were far broader than the enunciation of the proper rule sought from this court and as expressed in italics above. Plaintiff took the stand and was asked, 'Will you please state your name?' Objection was made that the plaintiff 'is rendered incompetent [to testify] under the so-called Nevada dead man's statute.' Thereupon the jury was excused and over thirty pages of the transcript are devoted to argument, whereupon the objection was sustained. Thereupon the following took place:

'Mr. Jensen: Now, just so I understand the court's ruling, * * * that means that under the court's ruling that plaintiff cannot testify as to any fact prior to May 11th, 1957, May 11th being the death of the decedent? Right?

'Mr. Taber: Well, that is the basis of my objection, yes.

'The Court: Yes.

'Mr. Jensen: So then any fact that occurred prior to May 11, 1957, that relates to the medical bills sustained, and relates to any other facts related to the accident?

'Mr. Taber: Medical bills haven't been offered.

'Mr. Jensen: Yes. So the ruling would exclude them?

'The Court: Yes.'

Appellant then proceded to make an offer of proof including her age, place of employment, rate of employment, nature and hours of employment, her leaving of her place of employment, the route pursued by her, the nature of the road, visibility, traffic, the striking of her car from behind, her confinement in the hospital, her doctor bills, the amount of her lost wages and her pain and suffering.

She also offered to testify that, presumably at the time when defendant was close enough behind her to have observed the matters testified to and could have contradicted the same of his own knowledge, 'at no time prior to the time of collision did she cause the brakes to be applied in a sudden...