dissenting:
During the course of trial the district court permitted Better Building to introduce testimony, over objection, that the Internal Revenue Service had “accepted Better Building’s tool rental payments as such.”1 Clearly, this second-hand testimony of the Internal Revenue Service’s out-of-court opinion was offered to prove the truth of the matter asserted (that the tool rental payments were such and not salary as contended by the Trustees). It cannot be claimed that the testimony was anything other than legally inadmissible hearsay. NRS 51.035; NRS 51.065; Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961); United Association of Journeyman v. Stone, 76 Nev. 189, 351 P.2d 965 (1960); Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958); State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946); Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188 (1915); In Re Kelly, 28 Nev. 491, 83 P. 223 (1905); Jones and Colla v. O’Farrel, James and Co., 1 Nev. 354 (1865). This much appears to be recognized by the majority; however, after conceding the inadmissible nature of the testimony and timely objection thereto, the majority then declares the error “harmless.”2
The majority’s resort to the “harmless error” rule in order to reach its preferred result is an usurpation of the jury’s exclusive role as fact finder. In literally hundreds of cases this court has held that it is the exclusive province of the jury to serve as finder of fact; however, the majority opinion seems to ignore that rule and conclusively presumes to find “other evidence” to support the verdict. Majority Opinion at 3. That conclusion exceeds our scope of review.
In a civil case the plaintiff must establish his or her case by a preponderance of the evidence. As stated above, it is exclusively the province of the jury to weigh the evidence and determine where the preponderance lies. Ewing v. Sargent, 87 Nev. 74, 482 P.2d 819 (1971); Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967); Barreth v. Reno Bus Lines, 77 Nev. 196, 360 P.2d 1037 (1961). It is hard to conceive that the jury’s “weighing” of the evidence would not be influenced by testimony that an agency of *749the federal government had already found as fact a matter at issue in the instant trial.3
Just how much the jury was influenced by this testimony is uncertain; it may have contributed only in a minor way or it may have been the factor that most influenced the jury. The truth is we don’t know where the jury would have found the preponderance of evidence without this testimony. Regardless, the majority is prepared to state conclusively that it had no impact whatsoever. Unable to agree with such a conclusion, I dissent.
Better Building was also permitted to introduce testimony that the Nevada Industrial Commission had also accepted that characterization of the payments. Although the majority invokes a procedural bar to consideration of the admissibility of that testimony, all that follows in this dissent is equally applicable to that testimony.
The Trustees objected to this testimony on the grounds that it was hearsay, irrelevant and lacked foundation. The majority does not seem to deny the presence of those evidentiary faults. The record clearly supports the merit of all three objections.
This conclusion is all the more certain in light of the fact that the Internal Revenue Service, an entity whose decisions influence affect all Americans, was the agency involved.