ON PETITION FOR REHEARING February 9, 1925. 232 P. 782. Findings need not expressly negative every possible exception or qualification of facts found, as implied negative necessarily exists, where facts found are inconsistent with those not found. 38 Cyc. 1984.
Some states support doctrine of implied findings. Nevada requires express findings where request has been made. Even where doctrine of implied findings occurs, failure to find on contributory negligence is error. Maxwell v. Auto Stage Co.,189 P. 710.
While it is recognized rule in Nevada that where there is no special finding, and only general finding in favor *Page 195 of party, the finding will be construed on appeal so as to sustain judgment. Still, where losing party requests specific findings and court refuses, nothing can be presumed in favor of finding made, and judgment must be reversed. Moore v. Rochester W.M. Co., 42 Nev. 164.
This court did not take into consideration, as to duties of trial court as respects implied findings, cases of Moore v. Rochester W.M. Co., supra, Schwartz v. Stock, 26 Nev. 128, nor Warren v. Quill, 9 Nev. 259.
Negligence on part of defendant will not relieve plaintiff from using due care, and his failure to do so is contributive omission so proximately connected with accident that but for such omission accident would not have occurred. Livingston v. Barney, 163 P. 863. It is apparent from record that negligence of appellant was proximate cause of accident without intervention of any negligence on part of respondent. Giving of signal of intention to turn was sufficient to warn following car. Blame for accident rests upon appellant.
Only specification of errors in support of motion for new trial was denial of directed verdict or motion for nonsuit. It is too well settled that all other matters of law must be contained in such specification of errors in support of motion for new trial, all other errors being waived. Petition is without merit and should be denied.
OPINION 1. A petition for a rehearing has been presented. It is insisted that we reached the wrong conclusion on the contention that the trial court failed to make a finding as to the contributory negligence of the plaintiff. It is strenuously urged that we did not give consideration to the concurring opinion of the writer in Moore v. Rochester Weaver Mining Co., 42 Nev. 164,174 P. 1017, 19 A.L.R 830 (and the authorities therein relied upon), which was quoted from in the original brief of appellant. We did not allude to it for the reason that we *Page 196 were of the opinion that the question involved was disposed of by what we did say. We may say, however, that the rule stated in that opinion was incorporated in the statute law of this state by chapter 177, Stats. 1919, p. 319, and hence it is now the law. But we do not think this is a case in which it can be said the rule invoked was violated, for the reason pointed out in our former opinion herein.
In the Moore Case the affirmative defense relied upon was that of estoppel, and the writer took the view that a finding that the matters pleaded in the complaint were true was not a finding upon the issue of estoppel, and that, if the plea of estoppel was or could be established, this court could have determined if the law was properly applied to the facts found. In other words, the writer took the view in that case that the defense of estoppel brought into the case an element or issue which was not disposed of by the general finding; whereas, in the original opinion in the instant case, the finding to the effect that the negligence of the defendant was the proximate cause of the accident disposed of the ultimate fact upon which the case must turn. Or, conceding that the plaintiff was guilty of contributory negligence, if that contributory negligence was not the proximate cause of the injury, the plaintiff could still recover (Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65), since the real issuable fact upon which the judgment turned was as to whose negligence was the proximate cause of the accident. Upon this question of fact the court made a specific finding.
Defendant in his petition for a rehearing dwells at length upon the cases of Tucker v. United Railroads, 171 Cal. 702,154 P. 835; Huntington v. Vavra, 36 Cal. App. 352, 172 P. 166, and Maxwell v. Western Auto Stage Co., 46 Cal. App. 548, 189 P. 710, cited in the dissenting opinion of our associate. The opinions in the last mentioned cases are by the District Court of Appeals of California, and are based upon the opinion in the Tucker Case which was by the Supreme Court of *Page 197 California, which, of course, controls. In that case it was said:
"The pleadings clearly raised the issue, and the court was bound to find upon the question whether or not deceased was guilty of contributory negligence, proximately causing her death. The failure of the court to make a finding responsive to this issue was error."
We think the law of that case is sound, and that it is in accord with the views expressed in our original opinion herein. The court there held that for failure to find whose negligence constituted the proximate cause of the injury, the judgment had to be reversed, whereas, we held that a finding to the effect that the defendant was guilty of negligence which was the proximate cause of the injury was sufficient. Certainly there is no difference in legal effect between our holding in the original opinion, and the holding in the Tucker Case.
2. As to the colloquy between court and counsel, quoted from in the dissenting opinion, we wish to observe that this court is not bound thereby, but by the findings of fact. We certainly cannot overthrow the findings by such a statement, nor should we look to it for guidance. We have repeatedly had occasion to point out the impropriety of incorporating the written opinion of the trial judge in the findings. Day v. Cloke, 47 Nev. 75,215 P. 386. If to incorporate the written decision of the trial judge, which is the result of study and mature reflection, into the findings is an evil practice, certainly it should not be seriously asserted that an oral statement made during a colloquy between court and counsel, which is not incorporated in the findings, should be weighed against the formal findings.
The petition for rehearing is hereby denied.