*1 sanity tortfeasor’s applying when it to the elements of the intentional torts of assault Mary BONGIOVI, Plaintiff-Respondent, not, battery. however, It is a correct

application of the issue of an insured’s sani- ty applying when it to an insurance clause JAMISON, Sr., Jamison, S.M. and Neita coverage injuries excludes caused wife, husband L. intentionally by Hence, the insured. Jamison, Defendants-Appellants. two are issues distinct. One has been re- No. 15744. fact, solved a trier of the other has not. By appealing former, not Rajspic’s Supreme Court of Idaho.

have not waived a future fact determina- tion on the latter. reasoning Based on the March 1986. I, therefore, of Rajspic since the issue of Rehearing May Denied Rajspic’s sanity Mrs. litigated, yet was not is relevant to the determination of the clause,

plicability of the exclusion

Rajspic’s collaterally estopped cannot be litigating that issue. “Whether Mrs.

Rajspic’s conduct came within the exclusion

policy presents an Rajspic issue of fact.”

I, supra 662 P.2d at 535. We must

remand this again case once so that that

question of may fact finally be deter- remand,

mined. On the determination of Rajspic’s

Mrs. sanity respect

exclusion clause is to be made based on the

rule set forth in Sessions. Nationwide required

must be despite to establish that condition, Rajspic’s

Mrs. mental she was capable

still forming the intent to cause

injury to Brownson. respect

There has been no trial with Rajspic’s

Mrs. sanity as it bears coverage.

insurance Both sides have at-

tempted advantage prior pro- to take issues,

ceedings that resolved some related respect the critical issue with injuries

exclusion for intentionally caused

by the insured. For this reason we must

reverse the decision of the district court proceedings

and remand for further factual opinion.

consistent with this appellant.

Costs to the attorney

No appeal. fees on HUNTLEY, JJ.,

BISTLINE and concur. BAKES, JJ.,

SHEPARD and dissent opinion.

without *2 a colosto- required

terminal, which had the recur- light year. in that same rence, chemotherapy Vittoria submitted Au- 1981. He died began June 25, 1981, age 64. at gust adop- action, Mary Bongiovi, the This Vittoria, in a resulted step-mother of tive the transfer as setting verdict aside through the having procured been on Vittoria. of the Jamisons verdict and appeal from the Jamisons motions. post-trial denial prop- Blue Creek purchased the Vittoria He lived alone mid 1950’s. erty in the twenty years he death. For there until his Y-J’s, company owned a food for worked Jamisons, by the until when he either rehired. and not or was laid off retired he visited the until his death From 1975 co-workers at Y-J’s and former Jamisons neigh- days a and certain about two week During the same days three a week. bors period, he received one visit and occasional from his mother. phone calls cards and ability to limited her Bongiovi’s health Mrs. home to visit Vitto- from her Florida travel his year last person. During ria was finan- life, his mother Vittoria believed cially off. well Larry parents of

On June attorney Her- brought Vittoria Jamison Sanderson, Vittoria’s will who drafted bert time, sat At the Sanderson and deed. d’Alene, Hosack, for Coeur Charles W. represent- had directors and board of Y-J’s defendants-appellants. He also prior matters. ed the Jamisons Jenkins, Hannon, E. Terrence W. Janet original the Jamisons represented Ocala, Blanchard, d’Alene, and Coeur Dock of this law suit. defense Fla., plaintiff-respondent. for with Sander- had met alone The Jamisons Vittoria, bringing days before son two HUNTLEY, Justice. will the deed and apparently executed who 11,1981, deeded George Vittoria meeting June with Sanderson. On first during his (Blue land previously represent- ten acres of timber one hundred had never Sanderson always in ex- Larry were property) to Jamison Creek ed Vittoria. $30,000 year, met with Sanderson. change present five when Vittoria Jamison’s definite by related testified unsecured note. Vittoria Sanderson get all his estate Jamison bequeathed the remainder of that he wanted will testified jewel- (a property. Sanderson thousand cash Vittoria’s few dollars papers he days when he drafted happened nine trial that ry) to Jamison. This impression that recurrence was under learned he had a after Vittoria according to the $30,000 valued cancer, diagnosed was which cancer had been state- assessor’s County Kootenai being latest having likelihood of in 1979 as a 65% ment of the market value. The Jamisons focus on Instruction placed $200,000. value at claim contradicted the rule in Brooks, Jamisons’ 100 Idaho contacts Vittoria increased responds greatly during the final three to four McNabb v. life, months of Vittoria’s according to S.M. P.2d 298 permitted the instruction. Jamison, Sr. McNabb held that if a grant- *3 example, 29, 1981, For on July Vittoria ee have a confidential relationship, and the gave ring a to Neita Jamison for her birth- grantor reposes grantee, trust in the and Yet, day. some testimony indicated the the evidence otherwise creates an inference Jamisons did ordinarily celebrate birth- of fraud or overreaching, then the burden days with Vittoria. persuasion of (bene- shifts to proponent the ficiary) of jury conveyance The found to by show clear exercised and convincing evidence undue that no undue in- influence over respect Vittoria with fluence McNabb, was exercised. deed, will, gift. The Jamisons 272 P.2d at 302-04. McNabb argue appeal on that the district court involved mother-daughter a confidential re- erred in instructing the jury on a presump- lationship. suggested Evidence daugh- tion of undue influence. Instruction 9 de- ter dominated her through mother verbal fined undue influence. Instruction 13 stat- daughter abuse. The prom- breached her presumption ed a of undue influence would mother, ise to care for her promise upon arise jury’s finding of a confiden- had been made in exchange for the moth- relationship tial between testa- property. er’s This breach created an in- tor/grantor and the beneficiary, coupled ference of fraud. daughter par- The participation with by the beneficiary in the ticipated in procurement of the convey- procurement of the conveyances. Instruc- ance, creating an inference of over- tion 20 directed the to pre- McNabb, reaching. 75 Idaho at 319- sumption as evidence gave 272 P.2d at 301-02. con- sons the burden of rebutting the presump- holding cludes that and facts of tion. The full text of each instruction permitted McNabb the district In- court’s pears below.1 struction 13 on presumption a 1. INSTRUCTION NO. 9 relation alone is not sufficient. activity part There must be on the of the benefi- plaintiff Bongiovi prov- has the burden of ciary, person acting or some for the benefit of decedent, ing that at the George time the Vitto- beneficiary, ria, preparation in the matter of the signed the Will and executed the deed on 11, 1981, making of gift. the Will or of the deed or unduly June by he was influenced Jamison, Sr., S.M. and Neita INSTRUCTION NO. Jamison and dominated, presumption L. Jamison in by that he was so A of undue influence is rebutted means, by persons whatever those production that under all of sufficient evidence. It is not the circumstances he could not well resist but necessary for the defendants to overcome a that his free will was controlled and the will of the others was substituted for the free will of sumption by preponderance a of the evidence. presumption may A of undue influence be over- George signing Vittoria to induce the of his Will. by showing following: come plaintiff proving also has the burden of exercised; Will, pressure no was deed July George gave on ring when testator, gift was well understood Jamison, to Neita he was so dominated donor; grantor or that its was a free execution her that under all the circumstances he could act; voluntary per- that it was such that a not well resist but that his free will was con- mind, average family son of morals and love for trolled and the will of Neita Jamison substituted make; might supposed willingly be to or that gift. for his to induce him to make the beneficiary betray the favored did not abuse or INSTUCTIONNO. 13 strength reposed the confidence in him. The presumption A of undue influence arises from presumption influence in reference proof of the exercise of a confidential relation- proof required depends it to overcome testator, ship grantor between a in a deed or a particular facts and circumstances of gift beneficiary coupled donor of a and such a each case. activity part prepara- on the Will, of the latter in deed, gift. tion of the or the factually similar case were Even if this permitting justified question the wisdom we as evidence weigh the By re- instructing juries presumptions. by Instruction provided as presumptions to cases the use of stricting con- Instruction 13 argue The Jamisons McNabb, both factually similar after Keenan, a case decided tradicted pur- virtually defeated the have conveyed Keenan, a mother McNabb. espoused by pose whom daughters for her bring McNabb intended McNabb. affection. apparently had she conveyance the aid of relationship a confidential existence of the evi- contestant, who lacked access received no was assumed since con- proponent-beneficiary’s dence regarding independent advice However, under grantor. tacts with beneficiary participated and the ance Kelley, a by Keenan limited conveyance. This procurement of with so must now come contestant held no nevertheless Court *4 overreaching to obtain the of much evidence Keenan, 100 Idaho influence arose. undue that, were of presumption P.2d at 476. available, the con- of evidence quantum three with- distinguished prevail McNabb on certainly almost testant grounds. presumption. In factual out impoverished, disin- grantor it left the ance court resolved this dilemma The district children, the benefi- two one of herited ground. Instruction taking a middle care promise ciary breached find and utilize a jury allowed induce con- promise made to grantor, 20 did not sumption. Instruction veyance. by clear persuasion of shift Therefore, not Keenan did had done. convincing evidence McNabb presumptions use prohibit the of Instead, directed the the court influence, their use to merely restricted as it would factually similar to McNabb. cases evidence; to in- Another Idaho case refused with some- supposedly rebut sons could distinguished also voke of the evi- preponderance than a thing less was noted the There it McNabb. dence. not grantee and did McNabb disliked in 20, how- difficulty with Instruction preparing in independent advice receive ever, to a comment is that it amounted Wheyland, conveyance. effectively com- The court the evidence. (1970). 735, 738-39, 471 593-94 rela- jury that mented to the In the instant the evidence indicated beneficiary’s ac- coupled with the tionship George impoverish conveyances did conveyance, tivity procurement of a cre- Neither it during his life. did inference of un- strong especially ates an Jami- promises pear that fraudulent departed This instruction due influence. oth- conveyances. On the induced sons attached meaning McNabb from the hand, adoptive his Vittoria disinherited er There, the term shifted presumption. word though on June step-mother even and raised the persuasion of the burden commencing chemo- days prior ten convincing proof to clear standard neighbor his therapy, he said to evidence. all his step-mother would presumptions efficacy use inde- received no his death. Vittoria literature. The widely is debated conveyance. pendent advice on fact that controversy’s source lies got along suggests Vittoria record (sometimes indiscrimi- often short, courts have case this with the Jamisons. to reach nately) the word used between to fall somewhere seems evidentiary objec- basic quite different four Keenan/Kelley. (1) tives: to shift the burden of production, simply means that when courts use the (2) to shift the burden persuasion, (3) to word presumption, and it is not otherwise comment on weight evidence, defined statute or the Rules of Evi- (4) to conclusively establish a fact dence, through then it shifts the produc- a rule of Allen, decision. Presumptions in tion. Civil Actions Reconsidered, 66 Iowa Second, the rule effectively elimi L.Rev. nates the word in Thayer Professors Wigmore have ar- Indeed, structions. the comments to Rule gued courts should use the word presump- 301 advise the courts not to pre mention tion to describe only shifts sumptions juries. produc Burdens production. They reasoned that the re- tion are relevant only to a court’s decision maining evidentiary effects to which courts on a motion for directed verdict. For ex apply sometimes the label presumption ample, plaintiff assume goes forward with have well-established, more descriptive P, evidence of fact predicate fact from names. J. Thayer, Preliminary Treatise which a presumption E, of fact an element on Evidence at the Law, Common 336-37 plaintiff’s case, arises. Assume further (1898); 9 J. Wigmore, Evidence 2490 at § plaintiff moves for a directed ver (3d.ed. 287-88 1940). short, courts dict. If the court, district discretion, in its should describe directly particular evi- finds that a person reasonable could infer dentiary effect intended rather than using the existence of fact E from the evidence the ambiguous label “presumption.” Al- P, of fact then the court will shift the len, supra, at 862-63. On the other side of burden of producing evidence nonex *5 debate, the Professor Morgan argued has istence of fact E to the defendant. The presumptions should shift the burden of go defendant must forward with sufficient persuasion. Morgan, Presumptions, 12 court, evidence such that the in its discre 255, Wash.L.Rev. (1937); 281 see, But Mor- tion, finds that a reasonable person could gan, Some Observations Concerning Pre- find the nonexistence of fact E. If the sumptions, 44 906, Harv.L.Rev. 931-32 goes defendant forward with evidence in (1931). Morgan that merely reasoned shift- sufficient for a person reasonable to find ing the burden production gives pre- E, nonexistence of fact then the court sumptions inadequate effect. would have direct to a verdict plain for the Rules 301 of the (Were Federal tiff Rules Evi- fact on E. no in dence and the effect, Idaho Rules of Evidence defendant would no have adopt the Thayer-Wigmore approach: of going forward go and the case would jury, all civil despite plaintiff’s motion, actions proceedings because provided

otherwise of the possibility statute or sim rules, ply these plaintiff’s disbelieve imposes a evidence. is on This party against true at least plain whom it is in those cases where directed burden of tiff going also carries the persuasion.) with the evi- dence to those rebut cases in presumption, meet the which the defendant intro but does not such shift to duces compelling such evidence party the bur- proof den of court finds no person sense of the risk reasonable could find nonpersuasion, E, existence of then the through- remains court should out the trial a party direct verdict on that issue for the de whom it See, was originally cast. fendant. (1985). I.R.E. 301 Comment to Rule 301. n provides This rule two major benefits. A Rule 301 presumption relieves First, it standardizes the definition of the party in favor whose word presumption. The merely rule re- operates having to adduce further quires the courts to instruct directly on evidence of presumed until the fact those objectives evidentiary opponent rather than re- introduces substantial evidence of ferring to them presumptions. as The rule the nonexistence of the fact. Comment to

739 Justice, BISTLINE, concurring in re- case, a the instant applied As Rule 301. re- judgment below and the versal operate presumption would Rule 301 proceedings. mand for further Bongiovi If introduced follows: had a that the Jamisons to show sufficient this argument oral we heard When relationship Vittoria and pity that not one thought, “What a case I procurement participated of the Court utilized other member ances, producing suffi- then the law as Chief to correct opportunity at myself of the nonexistence undertook cient evidence Donaldson Justice concurring opinion prima facie elements specially of the four do in the least one 823, Brooks, 100 Idaho v. influence would shift to (1980).” justice (1) Had one taken sug- 473 are sons. elements result Those mishappenstance verify the time influence, (2) grantor sub- gesting undue 313, 272 Idaho McNabb v. influence, (3) opportunity an ject to undue (1954), have been the law would P.2d 298 influence, (4) disposi- to exert ago. years six straightened out over v. undue influence. tion to exert Gmeiner Yacte, 63-64 Idaho appeamace on time after At an early prima facie Bongiovi proved it, If Engles than before rather the Court directed Nisula, would face P.2d 1055 v. had (1978), failed to introduce sufficient I that Justice verdict if sensed case: by the McNabb reasonably been enchanted that a could never evidence such strongly more elements of the Gmeiner criti- find one or See, Wheyland, been met. Comment Kelley test had not cized in sug- should and it was presumptions This is how Rule 301. ruling governing cases, gested as well the McNabb in undue influence function proof a shift of the burden presumptions in which other civil cases validity under circum- grantee only had are utilized. Id. those of McNabb. stances similar would, Rule 301 A best, jury. Once help whetted, I turned to My thirst burst, there, and she bubble2 would au- Shepard had Justice *6 pers carry the continue to burden thored: the evidence conclu uasion.3 Where does initially that the case point out We fact, court the trial sively establish is almost supra, v. jury that simply instruct should for jurisprudence several unique in Idaho avoiding established—thus fact has been First, agree- is no actual there reasons. Reversed “presumption.” use of the word dispo- the court majority ment of for new trial. and Costs remanded do secondly, and we of the sition attorney No fees awarded. appellants. portion of Brewster not believe ei- herein was by appellant upon relied deci- necessary appropriate ther DONALDSON, C.J., and BAKES elderly an In Brewster sion Brewster. JJ., BISTLINE, concur. infirm, senile, care unable to couple was themselves, neither read could SHEPARD, J., result. concurs juries as evidence "bursting 3. IDJI 213 instructs what is refered to 2. This is accident victim unable is, presumption that an theory” presumptions, that bubble immediately care testify exercised due trial jury, sumption the case to the exists accident, de- except where the preceding the bursts; presumption ceases then bubble negligence. Under plaintiffs proves the fendant "presumption” is not operate word and the assign presumption would rule 301 the v. jury instructions. presented in the See Huff producing evidence defendant the 1363, Co., F.2d Insurance Standard Life negligence. Since the defendant plaintiffs (11th Cir.1982). is un- already the instruction that burden has improper. necessary as well nor write. All of the of the doing they so were aware that were elderly couple daughter was deeded to a not shifting persuasion....” because she otherwise refused to care and concluded that “McNabb should hence- for them. The deed was conditioned forth standing be read as proposi- for the obligation par- to care for her tion that it is the going burden of ents for the remainder of their lives. sufficiently dispel the presumption opinion of the court in Brewster which shifts—not the persua- stated at 75 Idaho 272 P.2d 300: Keenan, sion.” supra, 100 Idaho at

“The evidence is sufficient justify cancellation of the ground deed on the Obviously, Justice Huntley would have neglect Mrs. Brewster’s and refusal joined opinion. today’s opinion His to care for the par- decedents [her primarily is based on the authority, same ents].” and it is a shame that he was not aboard then, however, court proceeded to the Court at an earlier date. Three votes indicating discuss rule that the exist- years ago six would have narrowed ence fiduciary of a relationship between confines, McNabb to its proper which Jus- grantee, coupled with a Shepard tice clearly in favor of doing, lack of conveyance, consideration for the but did not vote for opportunity when the placed upon grantee the burden of was there. establishing that the transaction was

fair, just and free taint of

fraud or undue Kelley, influence. su-

pra, 93 Idaho at 471 P.2d at

592-93. authoring the Court’s in Keen- an, Justice again voiced dissatis- faction with but reached the deci- WISE, Steven O. Plaintiff-counter judgment sion that the below could be af- defendant-appellant- Yacte, firmed on the law of Gmeiner v. respondent, cross that:

a close scrutiny of the entire record and an analysis of the result of the execution FIBERGLASS SYSTEMS, INC., an Idaho gift supports deed findings Multanen, corporation; Gary in B. an and conclusions of the trial court that the dividual; Walker, Christopher an give evidence did not presump- rise to a individual, Defendants-counterclaim tion of undue influence. supra, ants-respondents-cross appellants. 100 Idaho at 606 P.2d at 476. No. *7 It seemed to me that if McNabb was as Supreme Court of Idaho. unreliable, inherently as Justice arose, wrote whenever the occasion April strong recollection of that which Jus- tice Donaldson had written for the Court

Cole-Collister Fire Protection District v. Boise, City revisited, then McNabb should be I was not a monumental effort.

explained only having applied

McNabb’s fault was guilty

California case law which was

“interchangeably using proof’ ‘burden of evidence,’ producing

and ‘burden of