Lee v. Baker , 77 Nev. 462 ( 1961 )

Thompson, J.,

concurring:

I agree with the result. However, I would limit discussion to appellant’s assignment of error regarding the inadmissibility of Exhibit “Z”, and the prejudice resulting from its admission into evidence. In my judgment, had the record on appeal been otherwise without error, the admission of Exhibit “Z” would, of itself, require a reversal and new trial.

As heretofore indicated, Exhibit “Z” is a diagram of the T-intersection where the collision occurred. It purports to show the direction of the two cars before collision, the point of impact, the length and direction of tire marks on the highway, and the place where the cars came to rest following collision. The exhibit was at variance with another diagram of the area, properly received in evidence, and also at variance with some of the oral testimony given. The exhibit was prepared by a deputy sheriff who did not observe the accident, but investigated soon after it occurred. At the time of trial, that deputy was no longer employed. It was represented that he was then living in Arizona and not available to testify. His deposition had not been obtained.

The exhibit was offered for introduction through another deputy, who declared only that she kept the records of the sheriff’s office. No foundation was established in an attempt to admit the exhibit as either a business record, NRS 51.030, or as a public record, NRS 49.050. Whether the exhibit would have been properly admitted under either statute, had a proper foundation been established, is not before us for determination. When offered, objection was interposed upon the ground of hearsay. Clearly the diagram is hearsay. It was offered for the purpose of proving, or at least tending to prove, the truth and accuracy of the matters depicted thereon. It was, therefore, not admissible in the absence of an exception to the hearsay rule permitting its introduction. I find no such exception in this case.

Accordingly, the question is squarely presented whether the error committed by receiving said exhibit in evidence is harmless within the meaning of NRCP 61, or of such importance as to require reversal and new trial.

I find no substantial difference between NRCP 61, effective January 1, 1953, and the prior law, NCL 8622. In each instance it appears that the court, on review, is granted an opportunity to search the record as a whole, and exercise a judicial discretion in deciding whether the error assigned is harmless or reversible in nature. Though this be so, the discretion thus granted may not be arbitrarily or capriciously exercised and should “be guided by such applicable legal principles as may have become recognized as proper in determining the course of justice.” Goodman v. Goodman, 68 Nev. 484, 489, 236 P.2d 305, 307.

It is my belief that this court has announced, from time to time, certain guides for the exercise of judicial discretion on review, insofar as the admission or exclusion of evidence in civil cases is concerned. I shall mention some of them:

1. In a trial before a court it will probably be held that the reception of incompetent evidence was not considered in arriving at a decision, if there is competent evidence to support such decision. Duplantis v. Duplantis, 50 Nev. 234, 255 P. 1014; Rehling v. Brainard, 38 Nev. 16, 22, 144 P. 167, 169.

2. In a trial before a court, if the evidence offered and received, though perhaps erroneously, is cumulative in nature, so that it could not be said that the trial judge based his decision upon it, it will probably be considered harmless error. Backer v. Gowen, 73 Nev. 34, 50, 307 P.2d 765, 773; cf. Florey v. Sinkey, 77 Nev. 275, 362 P.2d 271.

3. In a trial before a jury, if the evidence offered and received erroneously relates to an issue in the case, it will probably be considered prejudicial. McLeod v. Miller & Lux, 40 Nev. 447, 473, 153 P. 566, 569, 167 P. 27; Mikulich v. Carner, 69 Nev. 50, 65, 240 P.2d 873, 880, 38 A.L.R.2d 1; Las Vegas Sun v. Franklin, 74 Nev. 282, 294, 329 P.2d 867, 873.

4. In a trial before a jury, if the evidence offered and improperly excluded, relates to an issue in the case, the court’s error will probably be considered prejudicial. Peterson v. Silver Peak, 37 Nev. 117, 138, 140 P. 519, 527; Henry v. Baber, 75 Nev. 59, 65, 334 P.2d 839, 842.

Undoubtedly, other guides have been announced from time to time. Absent NRCP 61, and before it NCL 8622, stare decisis might compel the reviewing court to decide according to case precedent. Because of the mentioned rule and statute, such compulsion does not exist. However, the persuasive effect of case precedent as a guide cannot be denied.

In the case at bar, Exhibit “Z” cannot be labeled cumulative and therefore harmless. Cf. Backer v. Gowen, supra. To the contrary, it was in conflict with another diagram received in evidence and also with some oral testimony. It directly related to ultimate issues in the case, negligence and proximate cause.- Of necessity, it contained the conclusions of its author, who was not subject to cross or any examination. It was referred to in jury argument as the official record of Mineral County and “has been accepted as the record of the accident and what happened.” The guides heretofore mentioned indicate such error to be prejudicial in nature. McLeod v. Miller & Lux, supra; Mikulich v. Carner, supra; Las Vegas Sun v. Franklin, supra. In searching the entire record I find no circumstances to suggest a different result in this case.

A trial free from error is more likely to produce a just result than one in which error has occurred. To that end, this case should be tried anew.