No.
21850
y
United
States
Court
of
Appeals
For
the
Ninth
Circuit
Alfred
Romero
and
Gloria J.Romero,
Appellants,
vs.
Ten
Eyck-Shaw,
Inc.,XYZ
CorporationsK
throughX
and
John
Doe
Ithrough
X
Appellees.
Opening
Brief of Appellants,
Alfred
Romero
and
Gloria
J.Romero,
Husband
and
Wife
Mesch,
Marquez
&
Rothschild
Fl
|_*
m.
239North ChurchAvenue£^
JqV I J Tucson,ArizonaHirsch,
Van
Slyke
&
Ollason
JUL
1 1967 182NorthCourtAvenueTucson, Arizona
WM.
B.LUCK.
CLERK
Attorney
s for AppellantsSORGPRINTINGCOMPANYOFCALIFORNIA, 346 FIRST STREET. SAN FRANCISCO 94105
SUBJECT
INDEX
Page
Jurisdictional Basis 1
Statement of the Case 2
Questions Presented 3
TABLE
OF AUTHORITIES CITED
Cases Pages Alaska Packers Ass'n v. Industrial Commission (1935), 294
U.S. 532, 55S. Ct. 518. Opinion below 34 P.2d715 4, 10, 13
Bradford Electric LightCo. v. Clapper (1932), 286U.S. 145,
52 S. Ct. 571 3, 7, 8, 10 Carroll v. Lanza (1955), 349 U.S. 408, 75 S. Ct. 804 7, 8,10 Criderv.ZurichIns.Co. (1965),380U.S.39,85S. Ct.769 8,9
Hughesv.Fetler (1951), 341 U.S. 609, 71S. Ct. 980, 257Wis.
35, 42 N.W.2d 452 6,9
Industrial Commission ofWisconsin v. McCartin (1947), 330 U.S. 622,67 S. Ct. 886 11, 12 Miller v. Yellow Cab Co. (1941), 308 111.App. 217, 31N.E.2d
406 13
Pacific EmployersIns. Co.v. IndustrialAccident Commission
(1939), 306 U.S. 493, 59 S. Ct. 629. Opinion below 10 Cal.
App. 2d 567, 75 P.2d 1058 4, 5,10
Statute
A.R.S. 23-904 14
Constitution
No. 21850
United
States
Court
of
Appeals
For
the
Ninth
Circuit
Alfred
Romero
and
Gloria J.Romero,
Appellants,
vs.
Ten
Eyck-Shaw,
Inc.,XYZ
CorporationsK
throughX
and
John
Doe
IthroughX
Appellees.
Opening
Brief
ofAppellants,
Alfred
Romero
and
Gloria
J.Romero,
Husband
and
Wife
JURISDICTIONAL
BASISAppellants are residents
and
citizens of the State ofAri-zona
and
Appellee is a citizen of the State ofTexas and
does not
have
its principal place of business inthe State ofArizona
and
was
doing business in the State ofNevada
atthe time the event complained of occurred.
The
matter incontroversyexceeds, exclusive ofinterest
and
costs,thesum
of $10,000.00. Jurisdiction of the District Court of the
United States for the State of
Nevada
in this matter isbased
upon
the above facts allegedin plaintiff's complaint, Title 28, U.S.C. 1332.2
The
appeal is takenfrom
the granting of asummary
judgment
of the District Court of theUnited States for the District ofNevada
enteredMarch
20, 1967. This Court hasjurisdiction of appeals
from
all final decisions of DistrictCourts of the United States, except
where
there is a directappeal tothe United States
Supreme
Court,Title28,U.S.C.1291 states that there is
no
direct review to United StatesSupreme
Court
available to appellant. Notice ofAppeal
from
suchjudgment
of theUnited
States Court ofAppeals
for the Ninth Circuit
was
timely filedupon an
appeal.STATEMENT
OF
THE
CASE
The
complaintallegesthat appellant,AlfredRomero,
was
employed
inArizona by
Guy
Apple
Masonry
Contractor,Inc., acitizen of Arizona, to
work
on a project in the Stateof
Nevada,
and
that while soemployed
appellantwas
injured
by
reason of the negligence ofTen
Eyck-Shaw,
Inc. in that one of appellee's employees so negligentlymain-tained, operated
and
controlledacertain elevatorand
equip-ment
that the elevator inwhich
appellantwas
riding fellviolently to the
ground
with appellant sustaining injuries.To
this complaint the appellees filed aMotion
to Dismiss.A
Response
totheMotion
toDismisswas
filedand
a hearingheld on
November
21, 1966, theMotion
to Dismisswas
denied without prejudice to file a
Motion
For
Summary
Judgment.
An
Answer
to theComplaint
was
filedon
Janu-ary 11, 1967 aMotion
forSummary
Judgment was
filedby
appellees.
Response
to theMotion
forSummary
Judgment
was
filedand
summary
judgment
was
granted in favor ofthe appellee
and
against the appellant onMarch
20, 1967with Findings of Fact
and
Conclusions ofLaw
being filed3
QUESTIONS
PRESENTED
When
an
employer, coveredby
theArizona
Workman's
Compensation
Act, hiresan employee
in the State ofAri-zona to do
work
in the State ofNevada,
is theemployee
entitled toallbenefits of the
Arizona
Statutespertainingto theWorkman's
Compensation
Act, eventhough
suchbene-fit
would
be prohibitedunder
the State ofNevada'sWork-man's
Compensation Act!
ARGUMENT
ON
THE
QUESTION
The
question before the Court is quite clear.May
an
employee
hired inArizona
towork
inNevada
reap the benefits of the
Arizona
statute relating to theWorkmen's
Compensation Act!
There
arenumerous
cases that touchon the question.The
Appellants will attempt to set these forth in detail in
an
attempt to shed as
much
light as possible on theproblem
before the Court.
In
Bradford
Electric Light Co. v.Clapper
(1932), 286 U.S.145, 52 S. Ct. 571,aVermont
employer
made
acontract inVermont
withan
employee, also a resident ofVermont,
by which
they accepted theVermont Workmen's
Compen-sation Act,
which
provided that injury or death ofan
em-ployee suffered in
Vermont
or elsewhere during the courseof his
employment would
becompensated
for only aspro-vided for
by
the Act, without recourse to actions based ontort.
The
employee
died ofan
injury he received whilecasually
working
inNew
Hampshire. His
administratrixbrought an action in
New
Hampshire
under
theWorkmen's
Compensation Act
ofthe state fordamages
by
reasonofhis death,which
was
claimedtohave
been causedby
employer'snegligence.
Judgment
for plaintiffwas
reversedby
theSupreme
Court of the United States.The
Court ruled the4
death action brought in
New
Hampshire,and
that refusalto recognize such defense
was
a failure to give full faithand
credit to theVermont
statute.The
scope of this rulingwas
materially restrictedby
the Court's subsequent decisionsinAlaska Packer's Associationv. Industrial Accident
Commission
(1935), 294U.S. 532,55 S. Ct. 518,and
PacificEmployers
Insurance Co. v.Indus-trial Accident
Commission
(1939), 306 U.S. 493, 59 S. Ct.629, 83 L. Ed. 940. In these cases the
Supreme
Court stated that there aresome
limitationsupon
the extent towhich
astate will be required
by
the full faithand
credit clause to enforce thelaw
of another state,in contravention ofitsown
statutes or policy.
Where
the policy of one state's statutecomes
into conflict with that of another, the necessity ofsome accommodation
of theconflictinginterestsisapparent,and
the conflict is to be resolved, notby
giving automaticeffect to the full faith
and
credit clause, compelling the courts ofeachstate to subordinate itsown
statutes tothose of the other, butby
appraising the governmental interests of each jurisdiction,and
turning the scale of decisionac-cordingto their weight.
The
Courtstated that fullfaithand
credit does not enable one state to legislate for the other or to project its laws across state lines so as to preclude the other
from
prescribing for itself the legal consequence of the acts withinit.InPacific
Employers
Insurance Co. (supra)an
employee
of a Massachusetts corporation, resided in Massachusetts
and
regularlyemployed
in that stateunder
a contract ofemployment
entered into there,was
injured in the courseof his
employment
while temporarily in California.The
Massachusetts
Workmen's
Compensation
statutepurportedto give
an
exclusive remedy, eventhough the injurywas
5
in Pacific
Employers
Insurance Co. v. Industrial AccidentCommission
(1938), 10 Cal. 2d 567, 75 P.2d 1058, affirmedalower court ruling
which
refused to set asidean
award
ofcompensation to the
employee by
the California IndustrialAccident
Commission.
The Supreme
Court of Californiaaffirmed, holding that the Courts of California
were
notbound by
the full faithand
credit clause to apply, contraryto the policy of the state, the Massachusetts statutes or to recognize it as adefense to the claim of the
employee
under
the
Workmen's
Compensation
Statute of California. Itpointed out that the California
Act
was
in conflict with theMassachusetts Act,
and
statedat 75 P.2d 1073:
"It
would
be obnoxious to that policy (California's) todeny
personswho
have
beeninjured in this statethe right to apply for compensationwhen
todo
somight
require physicians
and
hospitals to go to another state to collect chargesfor medical careand
treatment givento suchpersons."
The
opinionfrom
theSupreme
Courtof theUnited
States in the PacificEmployers
casesummarized
the ruling of theClapper case as follows: Pacific
Employers
Insurance Co.v. Industrial Accident
Comm.
(1939), 306 U.S. 483, 504, 59S. Ct. 629,634:
"The
Clapper case can not be said tohave
decidedmore
than that a state statute applicable toemployer
and employee
within the state,which by
its terms pro-vides compensation for theemployee
if he is injuredin the course of his
employment,
while temporarily inanother state, will be given full faith
and
credit in the latterwhen
not obnoxious to its policy."It distinguished the Clapper case
by
pointing out that therewas
nothing in theNew
Hampshire
statute, the deci-sions of its courts, or in the circumstances of the case, to6
suggest that reliance on the provisions of the
Vermont
statute, as a defense to the
New
Hampshire
suit,was
ob-noxious to the policy of
New
Hampshire.
While
theClapper decisionhas beendilutedby
latercases dealing with "Workmen's compensation, there is nothing in the later cases to give support to the proposition that fullfaith
and
creditmust
giveway
to a local policy notem-bodied in
a
statutewhich
directly governs the cause ofaction.
Thus
full faithand
creditwould
lean to application ofArizona
law.In
Hughes
v. Fetter (1951), 341 U.S. 609, 71 S. Ct. 980, plaintiff broughtan
action in "Wisconsin based on Illinois'swrongful death statute. Accident
had
occurred in Illinois;defendant
was
apparently a resident of Wisconsin. StateCourtheld that the
Wisconsin
statute,which
created a right of action only for deaths caused inthat state established alocal public policy against Wisconsin's entertaining suit
brought
under
the wrongful death acts of other states.Held: Construing local statute thus violates full faith
and
creditclause, ArticleIV, Section 1. (Quoting
from
the case,341 U.S. 611, 71 S. Ct. 982) :
"We
have
recognized, however, that full faithand
credit does not automatically
compel
aforum
state tosubordinate its
own
statutory policy to a conflictingpublic act of another state; rather, it is for this Court
to choose in each case
between
the competing publicpolicies involved.
The
clash of interests in cases of this type has usually been described as a conflictbe-tween
the public policies of two ormore
states.The
more
basic conflict involved in the present appeal however, is as follows:On
the onehand
is the strongunifying principle
embodied
in the full faithand
credit clause lookingtoward
maximum
enforcement in eachstate of the obligations created or recognized
by
the statutes ofsister states; onthe otherhand
isthe policy ofWisconsin
as interpretedby
its highest court,7
against permitting
Wisconsin
courts to entertain thiswrongful death action."
"We
hold that Wisconsin's policymust
give way.That
state hasno
real feeling ofantagonism
againstwrongful deathsuits ingeneral."
In Carroll v.
Lanza
(1955), 349 U.S. 408, 75 S. Ct. 804, theSupreme
Court
of the United States held that theFed-eral Constitution, Article IV, Section 1, does not require the state of the
forum
to recognize the exclusiveremedy
provisions of the
Workmen's
Compensation
statute of an-other state,and
that the state of theforum
may
permit atort recovery
by an
injuredemployee
eventhough
a tortaction
by
him
would
be prohibitedby
theWorkmen's
Com-pensation statute of the state
where
hewas
employed.The
effect of this decision
which
reversed the contrary holdingof the Court of
Appeals
for this circuitwas
to reinstate the original decision of the court. In the original opinionin Carroll v.Lanza
(1953), 116 F. Supp. 491 at 502, thefol-lowing
was
stated:
"The
rulenow
seems
to be thatany
statehaving
asubstantial connection with the
employee-employer
re-lationshipmay
apply itsown Workmen's
Compensa-tion Act. Cardillo v. Liberty
Mutual
Insurance Co.,330 U.S. 469, 476, 67 S. Ct. 801, 91 L. Ed. 1028. See
also Industrial
Commission
ofWisconsin
v. McCartin, 330 U.S. 622, 67 S. Ct. 886,91 L. Ed. 1140. (Permittingrecovery
under
both the Illinoisand
theWisconsin
Acts.)
And,
a statehaving
the right to apply itsown
Workmen's
Compensation Act would
alsohave
the right to apply itsown
third party practice. See. Vol.2, Larson's
Workmen's
Compensation
Law,
Section88.23, P. 407."
It appears that for all practical purposes
Lanza
8
Clapper
(1932), 286 U.S. 145, 52 S. Ct. 571,and
thatunder
the Carroll v.
Lanza
rule, the place of injury clearly haspower
to grant a tort recoveryunder
itsown
law
eventhough
the place of contract or other place creatingcom-pensation rights
would
say thatno
tort right exists.The
facts in Carroll v.Lanza
(1955), 349 U.S. 408, 75S. Ct. 804,
were
as follows :Carroll
was employed by Hogan. Both
Carrolland
Hogan
were
residents of Missouri,and
theemployment
contractwas
made
in Missouri.Hogan
was
a subcontractor forLanza
in Arkansas.While
Carrollwas
working
forHogan
on a job for Lanza, Carroll
was
injured.He
was
notaware
that he
had
remediesunder
Arkansas law
so he receivedpayment
from
Missouri.The
Missouri compensation act is applicable to injuries received outside the statewhere
the contract ofemployment
ismade
in Missouri.The
Act
pro-vides that the remedies grantedby
it exclude all of thecommon
law
rightsand
remedies.The
Arkansas Act
saysworkmen's
compensation is the exclusiveremedy
againstemployer
(hereHogan)
but not againstathird party (hereLanza). Carroll decided to sue
Lanza
fordamages
inArkansas.
Lanza had
the suitremoved
to Federal Court.Judgment
for Carrollunder
Arkansas
law.The
Court ofAppeals
felt that the full faithand
credit clause barredrecovery. Held:
Judgment
reversed. Carrollwas
entitled to sueunder Arkansas
law.Home
stateremedy
was
not exclusive.In
C
rider v. Zurich Insurance Co. (1965), 380 U.S. 39, 85 S. Ct. 769, Criderwas
a resident ofAlabama
and
was
employed
thereby
Lawler, a Georgia corporation. Criderand Lawler were
bothunder
GeorgiaWorkmen's
Com-pensation
when
Criderwas
injured. Crider sued in9
brought
an
action against Lawler's insurer in FederalDistrict Court.
Motion
to dismiss grantedand
affirmedby
Court of Appeals. Reversed. Held:
Alabama
Court
couldapply the Georgia
Workmen's
Compensation
Act, at 380U.S.39,41; 85S.Ct.769,770:
"The
statewhere
theemployee
lives has perhapseven a larger concern (than the state
where
the tortoccurs), for it is there that he is expected to return;
and
it is on hiscommunity
that the impact of the injury is apt to bemost
keenly felt. * * *"The
Alabama
policy in that regard is reflected in thejudgment
renderedby
theAlabama
Court on which
the federal suitwas
instituted.That
Alabama
judgment
adoptedand
enforced theremedy
providedby
Georgia, 380 U.S.42, 85 S. Ct.770
:
"A
procedurewe
indicated in PacificEmployers
In-surance Co. v. IndustrialAccident
Commission
(1939),306 U.S. 439, 59 S. Ct. 629, a state
might
follow. Here,as in the
Alaska
Packer's Association v. IndustrialAccident
Commission, supra
(1935), 294 U.S. 544, 55S. Ct. 522."
It is felt that
Hughes
v. Fetter (1951), 341 U.S. 609, 71 S. Ct. 980, is of such significance to the present fact situa-tion that the following quote could almost withsome minor
changes
sum
up
the case before this Court.By
insertingNevada
in place ofWisconsin
itwould
hardly be distin-guishablefrom
Romero
v.Ten-Eyck Shaw.
"The
clash of interests in cases of this type hasusually been described as a conflict
between
the public policies oftwo
ormore
states.The more
basicconflictinvolved in the present appeal, however, is as follows :
On
the onehand
is the strong unifying principleembodied
in the full faithand
credit clause lookingtoward
maximum
enforcement in each state of the obligations or rights created or recognizedby
the10
statutes of sisterstates; on the other
hand
isthe policyof Wisconsin, as interpreted
by
its highest court,against permitting Wisconsin courts to entertain this
wrongful
death action."We
hold that Wisconsin's policymust
give way.That
state hasno
real feeling ofantagonism
againstwrongful
death suits in general.To
the contrary, aforum
is regularly provided for cases of this nature,the exclusionary rule extending only so far as to bar
actions for death not caused locally.
The
Wisconsin
policy, moreover, cannot be considered as an applica-tion of the
forum
non
convenience doctrine,whatever
effect that doctrine
might
be given if its use resulted in denying enforcement of public acts of other states.Even
ifwe
assume
thatWisconsin
could refuse,by
reason of particular circumstances,
we
fear foregoingcontroversies to
which
nonresidentswere
parties, thepresent case is not one lacking a close relationship
with the state.
For
not onlywere
appellant, thede-cedent
and
the individual defendant all residents ofWisconsin, but also appellant
was
appointedadminis-trator
and
the corporate defendantwas
createdunder
Wisconsin
laws.We
also think it relevant, althoughnot crucial here, that
Wisconsin
may
well be theonly jurisdiction in
which
service could behad
asan
original matter
on
the insurancecompany
defendant.And
while in the present case jurisdiction over the individual defendant apparently could behad
in Illi-noisby
substituted service, in other cases Wisconsin'sexclusionary statute
might
amount
toa
deprivation ofall opportunity to enforce valid death claims created
by
another state."Under
these circumstances,we
conclude thatWis-consin's statutory policy
which
excludes this Illinoiscause of action is forbidden
by
the national policy of thefullfaithand
creditclause."The
Clapper
case has in effect beenoverruled.What
has been decided in the Alaska, Pacificand
Carroll cases is not11
thata
forum
statecan ignore theWorkmen's
Compensation
lawofasister state in everycircumstance.
What
these caseshold
—
and
to this extent overrule Clapper—
is thatwhen
the sister state's
Workmen's
Compensation law
ismore
restrictive in providingan
injuredemployee
redress, theforum
state is free to follow itsown
law.But
in our case it is theforum
state (and not the sister state)whose law
ismore
restrictive.Therefore, theresults inthose cases should be construedinfavor ofappellant.There
is no restriction concerningmore
than one statuteapplying to a single
compensable
injury so long as eachstate has arelevant interest in the case. Actually, the pres-ent fact situation is
merely
a successive award. IndustrialCommission
ofWisconsin
v.McCartin
(1947), 330 U.S. 662, 67 S. Ct. 886.The
McCartin
case,one ofthelandmark
cases,was
a fact situation whereinan
Illinois residenthad
made
acontract of
employment
withan
Illinoisemployer
inIllin-ois, pursuant to
which
he didsome
work
in Wisconsin, inthe course of
which
hewas
injured.He
began
compensationproceedings in both states.
While
theWisconsin
proceed-ings
were
pending, the Illinoiscommission
issued a formalorder
approving
a settlementagreement
under
Illinoislaw,and
fullpayment
was made
under
the order.The Supreme
Court of theUnited
States,by unanimous
vote, reinstated the
Wisconsin
award. Since the vastmajor-ity of compensation laws resemble the Illinois
law
in thisrespect, the decision has been taken to
mean
that for all practical purposes successiveawards
are sanctioned.The
crucialparagraph
of theMcCartin
opinion, setting forth the reason for its conclusion is sufficiently importantto
warrant
quotation in full.The
Court
first quotes the Illinois exclusive-coverage clauseand shows
that itmeans
in Illinois (as it does in practically every other state) that12
it is exclusive only in the sense that
no
othercommon
lawor statutory
remedy
under
local law can be sought.The
Court then goes on to say: 330 U.S. 627, 67 S. Ct. 889,
"But
there is nothing in the statute or in the deci-sions thereunder to indicate that it is completely ex-clusive, is designed to precludeany
recoveryby
pro-ceedings brought in another state for injuries received there in the course of
an
Illinoisemployment.
(Citing cases.)And
in lightofthe rule thatworkmen's
compen-sationlawsare tobeliberally construedinfurtherance
of the
purpose
forwhich
theywere
enacted, (citing cases.)And
in lightof therule thatworkmen's
compen-so as to cut off
an
employee's rightto sueunder
other legislationpassed for his benefit.Only
some
unmistak-able language
by
a state legislature or judiciarywould
warrant
our accepting such a construction. Especially is this truewhere
the rights affected are those arisingunder
legislation of another stateand where
the fullfaith
and
credit provision of theUnited
States Consti-tution is brought into play. (Citingcases.)"We
need
notrestourdecision,however, solelyupon
the absence of
any
provision or construction of theIllinois
Workmen's
Compensation Act
forbiddingan
employee
from
seeking alternative or additional reliefunder
thelawsofanotherstate "The
reasoning set forthby
the District Court inits deci-sion to the effect that theArizona employer
couldhave
re-quested
an exemption under
theNevada
Compensation Act
should
have no
more
weight than the fact thanan
expressagreement between employer and employee
that the statute of anamed
state shall apply is ineffective either to enlarge the applicability of that state's statute or to diminish the applicability of the statutes of other states.Whatever
the rulemay
be as to questions involving commercial paper, interest,usury and
the like, the rule inworkmen's
com-13
pensation is not a private matter to be
arranged between
two parties; the publichas a
profound
interest in themat-ter
which
cannot be alteredby any
individual agreements.This is
most
obviouswhen
suchan agreement
purports todestroyjurisdiction
where
it otherwiseexists;Alaska
Pack-ers Association v. Industrial Accident
Commission
(1935),294 U.S. 532, 55 S. Ct. 518; practically every statute has
emphatic prohibitions against cutting
down
rights orbene-fits
by
contract.The
only exception occursunder
several statuteswhich
explicitlypermitthe parties to agree that the local statute shall not apply to out-of-state injuries.Ala-bama,
Kansas, Kentucky, Missouri,and
Tennessee.And
this is no less true in the instant fact situation since theemployee
for all practical purposes is notmade
aware
of
whether
or not hisemployer
isor isnot rilingor request-ingan exemption
under
theNevada
statute.It is submitted that the present appeal should in essence
be controlled
by
the reasoning in Miller v. YellowCab
Co. (1941), 308 111.App.
217, 31N.E.2d
406. In the Miller case the plaintiffwas
aTexas employee
of aTexas employer
and
had
been injured during atemporary
business errandin Illinois.
Texas
permits suits againstany
third party,while Illinois has the
most
restrictive kind of third-party staute, prohibiting suitby
theemployee
againstany
thirdperson
who
himself isunder
the Illinois compensation act.Illinois allowed the suit, on the
ground
that third-partyrights are fixed
by
thelaw
of the state grantingcompensa-tion.
The
court also apparentlyassumed
thatIllinoiswould
not
have
awarded
compensation ifan
award
had
beensought
under
the Illinois Act;and
therefore, IllinoisCom-pensationprovisions didnot
come
intoplayatall.It is submitted that the
whole
ideaand
philosophy ofcompensation legislation is to prevent the throwing of
an
injured
workman
on local charity,and
therefore, the State of Arizona has ahighly relevantinterest inforestalling that14
event; thus the State of
Nevada
must
give full faithand
credit to the cause of action against the negligent third party. Certainly ifthe situation
were
reversedthe State ofArizona would
give full faithand
credit to theNevada
statutes, for A. K. S. 23-904 is quite clear."A. If a
workman who
has been hired or isregu-larly
employed
in this state receives a personal injuryby
accident arising out ofand
in the course of suchemployment,
he shall be entitled to compensationac-cording to the
law
of this state eventhough
the injurywas
received withoutthe state.''B. If a
workman
who
hasbeen hired without this state is injured whileengaged
in his employer's busi-ness,and
is entitled to compensation for the injuryunder
thelaw
of the statewhere
hewas
hired,hemay
enforce against his
employer
his rights in this stateifthey are such that they can reasonably be determined
and
dealtwithbv
thecommission and
the courtsin this state."A.E.S.
23-904.Wherefore,
it is submitted that the decision of theFed-eral District Court for the State of
Nevada
be overruledand
the case sent back for appropriate proceedings.MESCH,
MARQUEZ
&
BOTHSCHILD
239North ChurchAvenue
Tucson, Arizona
Hjrsch,
Van
Slyke
&
Ollason
182NorthCourtAvenue
Tucson, Arizona
Attorneys forAppellants
By
:Lawrence
Ollason
I certify that, in connection with the preparation of this brief, Ihave examined
Kules 18, 19and
39 of the UnitedStates Court of
Appeals
for theNinth
Circuit,and
that, inmy
opinion, the foregoing brief is in full compliance with those rules.