*1 practitioners most will make out of What only
the second sentence that it serves gratuitous telling
lead-in to his advice judge
trial all about motions for directed
verdict and motions for n.o.v. appellate judge grateful
As an I am gratuity
the further as to this Court’s func- appeal.
tion on
Hopefully little Dustin and his mother frightened
will not be out of court. CHENERY, Plaintiff, P.
William
v. CORPORATION,
AGRI-LINES a corporation,
Nevada Defendant.
David C. SPENCER and Lois N. wife,
Spencer, husband and
Plaintiffs, CORPORATION,
AGRI-LINES a
corporation, Defendant. CORPORATION, corpo
AGRI-LINES
ration, Party Plaintiff-Respon Third Appellant,
dent-Cross PUMP, INC.,
LAYNE and its successor in
interest, Singer Company, corpo
ration, Party Defendants-Appel Third Respondents.
lants-Cross
No. 16517.
Supreme Court of Idaho.
Oct. 1988.
Rehearing Denied Dec.
Clemons, P.A., Humphrey, Cosho & Boise, respondent. Richard H. Greener argued.
SHEPARD, Chief Justice. *3 appeal judgment This is an from a and trial, denying orders a motion for a new cross-appeal denying and a from orders interest, costs, pre-judgment attorney and fees. We affirm. brief, manufactured, Layne Pump
In sold deep-well irrigation and installed a turbine pump property by Chenery owned and Spencers. years leased Six later Agri-Lines employed by Spencers repair pump. repair process In the a portion pump fractured, causing much of the mechanism drop to the bottom of the well.
Chenery Spencers brought and the action against Agri-Lines seeking damages for crop Agri-Lines brought losses. a third- party complaint against Layne. Agri- Chenery Lines settled Spenc- and the ers, judgments were entered in favor for $110,000.00 $67,000.00 amounts of re- spectively.
Following entry the settlement and judgment in favor of Spencers against Agri-Lines, the district court attorney Spenc- awarded fees to the attorney ers and Chenery. That award of appealed, (Chenery Agri-Lines fees was v. (1984)) Corp., and reversed.
Thereafter, jury trial was held on the third-party Agri-Lines against action of premised which on theories of contribution, indemnity, subrogation. percent The found that 100 cause of the accident was attributable to Layne, Agri-Lines in favor of on all found theories, and based thereon against Layne was entered in the amount $157,000.00. I. controversy
The focus of the between Quane, Smith, Hull, Boise, Howard & alleged is the defec- appellants. Day argued. David E. pump discharge tiveness of the head. 284 trunions, manufacturing process percent claim for reimbursement discharge
“lifting referring ears” cast inte to a were the term ‘contribution’ head, to which cables could attached partial claim for reimbursement.” Ste discharge The order to lift the head McClure, phenson S.W.2d. equipped lifting plate was also with a steel (Mo.App.1980). Contribution means head, located beneath the which loss, sharing of means a while through plate eyes cables contained shifting McCleskey of the entire loss. passed in order to could be lift Corporation, Kan.App.2d Noble upwards. Agri-Lines contended that (1978). Quite simply, P.2d contribution “lifting pump’s ears” cast into the dis- indemnity. is a form Fontenot v. charge appropriately head attached to (D.C.Tenn.1954). Roach, F.Supp. lift the pump. cables and used to While overlap equitable principles of The attempting was so to raise *4 indemnity subrogation was stated lifting pump, one of the ears fractured Trucking Company May v. International head, causing from the the entire 319, 321, Company, 97 Idaho Harvester shaft, tube, pipe, of as- column and bowl 1159, (1975): 543 P.2d 1161 sembly to fall to the bottom of the well. subrogation eq- are indemnity Both necessary Agri-Lines did not have the principles general based on uitable the equipment the from to retrieve mechanism theory compelled pay that one dam- to lifting Layne the well. contends that the to ages by caused another should be able cables have been to the should attached recovery party. that The doc- seek from lifting plate Agri-Lines improperly at- cases overlap trines in some and certain- tempted pump by attaching to lift right indemnity ly possessor to lifting alone. cables to ears possess right subroga- may also of appeal principal Layne On the asserts tion. erred in instruc- trial court certain prima Three elements of in facie to the that the trial court erred jury, tions demnity were outlined Williams v. John matters, ruling evidentiary on certain i.e., ston, 292, (1968), Idaho 442 P.2d 178 refusing court erred in to trial (1) relationship, (2) lia indemnity an actual grant a new a motion for trial. party, bility of an indemnitee to the third to in instruc As the asserted errors (3) a settlement amount. reasonable tions, relating argued it is that instructions a settle Layne concedes that reasonable Agri-Lines’ right indemnity to and/or its to established, argues ment amount was but contribution, right to were The erroneous. prima elements that the other two facie “Agri court trial instructed by Agri-Lines. We not established Layne Lines seeks reimbursement from disagree. Reimbursement, right Pump, Inc.” or the party has claim to Here, of one who satisfied a an Agri-Lines does not assert party, another can be repayment contract, seek from arising in but relation on of interrelated pursued any one three principles law relies on common rather indemnity, contri principles: common law here indemnity. Agri-Lines established bution, princi subrogation. All those party responsible for was the concept party a ples are based on has injuries, and hence established responsible his own should be held v. Yok indemnity. See Kvarfordt pay wrongs, compelled 82-4227, and if another Memoran Corp., Tire No. ohama damages by wrongdoer, 16, 1985). (D.C.Idaho, caused Decision Oct. dum wrong to recover from the entitled jury in also that since the asserts doer. negligence present found action element, part Agri-Lines, the second ‘indemnity’ ‘con “The terms interchangeably. liability of often used tribution’ are established, and that However, appropriate Spencers, more was not perhaps it is a ‘indemnity’ referring therefore volunteer to a the term use Johnston, supra. stated payments. v. As making the settlement We dis- Williams Diehl, acting good making Houghtelin agree. One faith the Court 636, 639-640, (1929): under a reasonable that it P. settlement belief Idaho necessary protection, to his will not be sense, is the Subrogation, in its broadest equitable indemnity. To so hold denied another, person for so of one substitution eq- policies undermine the behind may rights succeed to the that he indemnity. uitable As stated in Mullin in relation to the debt or claim creditor Chandler, Cal.App.3d Lumber Co. rights, remedies and securities. and its (1986), Cal.Rptr. rev. civil law is derived from the The doctrine denied, Dec. 1986: adopted by courts it has been from which strong policies in maximiz- The favor of equity. It is considered a creature injured party, settling ing recovery to the to se- equity, and is so administered as apportioning cases and fault would justice cure real and essential without seriously imparied required if we a set- form, allowed regard to and it will not be prove fault tling defendant its own injustice to oth- where it would work an seeking indemnity against others before ers, priori- as where it would disturb the plaintiffs alleges contributed to the any rights of liens or defeat of oth- ties Furthermore, injury. judicial determi- principle is often extended to ers. Its necessary protect nation of fault is not who, those because of their interest rare case the other tortfeasors from the *5 property on which debts of others are collusion and of bad faith.... charge, pay are entitled to such debts settling If a defendant must nevertheless place of the and be substituted to the prove judge jury in its own fault to a or Generally speaking, it original creditor. indemnity from other order to obtain an in one advances mon- only is cases where precious tortfeasors it has little incentive protect ey pay the debt of another to to to settle. equity rights his own that a court of
Layne urges abrogation place the con- him in of the creditor as of substitutes course, express cept equitable indemnity, light any of Ida- a matter of without of The adoption comparative negligence agreement ho’s of to that effect. doctrine Eq- subrogation administered as a embodied I.C. 6-801. We decline. of is not § legal right, principle applied is founded on common but the is to uitable justice, justice and to do explicit law notions of and unless subserve the ends of contract, statutory language abrogates equity. com- not rest on and such It does concepts, they general mon law remain viable. We rule can be laid down which language requiring see no afford a test all cases for its I.C. will § abrogation remedy the doctrine is application, of the common law and whether Hence, any particular depends case equitable indemnity. applicable of we find no to peculiar facts and circumstanc- upon error the trial court’s instructions re- garding Agri-Lines’ right indemnity, nor of such case. es by the failure of the trial court to instruct Williams, supra at As stated in express language contri- subrogation right of P.2d at 184: “For the bution. arise, it first essential that the action, making person a third Agri-Lines’ payment the instant pay- obligation an to make such a attempt to obtain reimbursement is also under recognizable pro- interest to recovery ment or has a sufficient under the facts to allow Subroga by the record theory subrogation. tect.” As demonstrated under the here, protect, Agri-Lines had an interest to equitable principle an on the based tion. i.e., brought pay a defendant lawsuits general theory compelled that one was alleged for by' Chenery and the damages caused another should warranties, party. express implied recovery to seek from that breach able fraud, negligence, and reckless conduct May Trucking v. International Harvester Therefore, (1975); the deci- Co., servicing pump. sion to offer cannot be Layne’s construed We have considered other asser- voluntary payment. as a instructions, regarding tions of error find them to be without merit. Subrogation, As stated in 83 C.J.S. 16§ at 617-18: person voluntarily satisfying A the debt II. or default of another can claim no matters, evidentiary Layne As to subrogation, apparently but it is suffi- first asserts that the trial court erred in practical compulsion cient if there is admitting disagree. Exhibit 25. We Ex pay, although may there be no strict prepared by Layne, hibit 25 a chart so, if, legal obligation to do because of although Agri-Lines was not aware of mistake, payor believes that it is his the chart’s existence at the time of the legal duty pay. injured Where the question, events in the chart was used at person does not have a cause of action imply trial to could be ears against wrongdoer, person mak- used to lift the As such the exhibit ing compensation injury for the has noth- properly relevant admitted. ing to subrogated. which to be I.R.E. asserts that also We hold that was under suf price entire book from which the chart was compulsion ficient payments to make the taken should have been admitted in evi subrogated it is entitled to be to the dence, however, Layne failed to make ei payments amount of made to objection request ther an or a for such Spencers. subrogation, Agri- Under trial, under at I.R.E. 106 and therefore rights Lines succeeded to the properly such issue is not before this Spencers by the settlement for the Court. next asserts that the remov losses, crop and hence was sub- X, page al of the final from Exhibit rogated against responsible the tortfeasor operation installation and instruction man harm, i.e., Layne. subrogee, for the As the ual, page was erroneous. That contained a
Agri-Lines occupies
positions
the same
as
warranty
limited
which the court
in its
Spencers,
and the
and has
removed, believing
discretion
it could con
greater
rights. Agri-
the same but no
jury.
fuse or mislead the
The trial court
Lines was substituted
subrogated
has discretion to refuse to admit evidence
any cause of
action which
and the
value,
probative
if any,
where its
is sub
bring against
would be entitled to
by
danger
stantially outweighed
of
Layne,
Agri-Lines’
and thus
causes of ac
sum,
prejudice.
I.R.E. 403.
we find
tort,
tion include
in
liability
strict
of
breach
rulings upon
in
evidentia
error
the court’s
implied warranty,
negligence.
United
ry matters.
Co.,
234,
Munsey
States v.
Trust
332 U.S.
1599,
(1947);
67 S.Ct.
Blair,
14,
(1978);
99 Idaho
IV. court, not be discretion of the trial and will showing cross-appeal Agri-Lines as disturbed the absence of a On failing Ething serts that the trial court erred abuse of discretion. Anderson v. $32,612.50 ton, (1982); attorney pre fees as a 651 P.2d award 103 Idaho vailing pursuant Glass, 12-121. party, to I.C. 102 Idaho 640 P.2d Haskin v. § Agri-Lines argues errone (Ct.App.1982); that the court Palmer v. Idaho Bank 54(e)(1), ously applied which re Trust, I.R.C.P. & quires predicate for the award of (1979). In the instant find no such case we attorney non-prevailing party fees abuse of discretion the trial court. brought, pursued to have must be found frivolously defended the case or without V. Agri-Lines suggests
foundation.
In its Memorandum of Costs filed with
1, 1979,
rule
effective on March
became
the Court after
was entered
present
prior
action
to that effec
was filed
case, Agri-Lines
recovery
sought
this
also
tive date and hence such standard should
$2,053.50
attorney
fees
the amount of
applied
not be
in the instant case.
37(c)
pursuant
Rules
to Rule
Idaho
As the trial court stated:
Procedure,
provides
perti-
of Civil
54(e)(1)
Long before
I.R.C.P.
part:
nent
adopted,
position,
court
this
took the
party
genuineness
If a
fails to admit the
along
most
other Idaho district
any
any
document or the truth of
judges,
to an
I.C. §
requested
matter as
under Rule
necessary
award was
to find a case
requesting
if the
the admissions
unreasonably,
had been defended
frivo-
proves
genuineness
thereafter
foundation_
*7
lously or without
Al-
matter, he
document or the truth of the
though
equitable
there are
considera-
may apply to the court for an order re-
suggest
tions which
to this court that a
pay him
quiring
the other
the
discretionary
attorney
award of
fees
expenses
making
reasonable
incurred
might
appropriate
jury’s
based on the
proof,
including
reasonable attor-
findings
Agri-Lines
was free of
ney’s fees.
fault,
grounds
I cannot find
to conclude
Request for Ad-
Agri-Lines’
In
Second
[Layne’s]
its
defense was friv-
[that]
10, 1985, Agri-
December
mission dated
olous, unreasonable or
founda-
without
Layne Pump admit
requested
Lines
tion.
following
the
fact:
Hence,
application
that the
we hold
According
Request No. 11:
to the litera-
general
by
standard
the district court in
by Layne Pump,
prior
Inc.
printed
ture
the instant case was not an abuse of discre-
1,1975, pumps
specifications July
tion.
action,
could be
pump
the
involved this
Agri-Lines
argues that the
further
pulled by
pump
ears.
use
attorney
trial court should have awarded
Response: Denied.
Agri-Lines
prevailing
fees since
was the
Agri-Lines
prove at trial that there
party, Layne unreasonably
any
denied
did
was,
fact,
fault,
printed by Layne
negotiate
good
literature
failed to
1, 1975,
Pump,
July
Inc.
Agri-Lines
pump
which
contends that since the
pumps
specifications
showed that
solely
by
the
of manufacturer was found
liable
subject pump
pulled by
action,
the
could be
use of
the trier of fact in the third-party
lifting
pump
discharge
Agri-Lines
ears on the
should reimburse
for
legal
defending
head. This literature was admitted into
their
fees incurred in
against
underlying
Layne Pump
brought by
evidence as Exhibit 25.
em-
claims
Brock,
ployees,
Bill
Webb and Jim
both
which were set-
Layne agreed
testified that this
tled for amounts which
literature was available
in July of
that the chart
reasonable.
related to the
pump discharge
question,
head in
and that
law,
general
Under Idaho
rule
contemplated by
it was
Layne Pump that
is that
an
action there is no
lifting
discharge
ears on that
head
attorney
to recover
fees incurred for
size, type
length
could lift the
of col-
defending against
the indemnitee’s own
present
subject
umn
pump.
Inc.,
Wefco,
fault. Borchard v.
Layne Pump’s
Because of
denial of the
(1987);
Weston v. Globe
admission,
request
had to
Slicing
Company,
Machine
entitled to recover those fees primarily costs not directed toward defend- VI. ing against allegations its own fault or Agri-Lines claims that the trial court negligence. active $24,578.80 failing in erred to award at- damages Agri- held that torney fees as an element of The district court indemnity legal expenses legal expenses in- incurred in de the action for Lines these neg defending Chenery/Spencer fending against allegations the of its own curred warranties, and ligence, breach of fraud suit.
289 (1969); Anderson, conduct, not v. 75 Guyman P.2d 993 reckless therefore 294, (1954); Layne. Berg 1020 from Idaho 271 P.2d entitled reimbursement Carrico, 476, P.2d kamp v. 108 Idaho 700 court agree and hold the trial We noted, Agri- (Ct.App.1985). As above 98 $24,578.51 in properly denied an award of against the required Lines was to defend damages in attorney fees as an element of action, Chenery/Spencer paid for indemnity action. damages ultimately determined that were Layne. such to be the fault of Under VII. circumstances, inequitable deny cross-appeal Agri-Lines as- Also this money during its Agri-Lines for the use of denying serts that the trial court erred in Hence, part period years. of six prejudgment pursuant to I.C. interest deny judgment of the district court majority A 28-22-104. of this Court § prejudgment Agri-Lines interest to ing In agrees. paid 1980 and remanded with directions reversed $157,000.00 damages for judgment the trial court amend resulting from 1975 accident. Agri-Lines prejudgment interest. award judgment 1986 entered in the third- Agri-Lines, action in party favor respects In all other Hence, against Layne. Agri-Lines asserts district court are affirmed. orders from prejudgment it is entitled to interest respondent Agri- cross-appellant Costs 1980 to 1986. attorney appeal No fees on allowed. Lines. that pre-judgment contends proper interest is when the amount of the BISTLINE, HUNTLEY and liability liquidated capable contested isor JOHNSON, JJ., concur. by mere of ascertainment mathematical fully SHEPARD, C.J., process compensate order to dissents Part as to injured for the loss of the use V. money during pendency
their
BAKES, J., dissents.
Anderson,
Realty,
action. Ace
Inc. v.
106
742,
(1984);
Idaho
“It
is
similar
well established that under the
circumstances.”
law, person
who without fault
common
a
However, the trial court
the
give
refused to
part
on his
compelled
pay damages
jury
instructions.
these
This constitutes
by
negligence
occasioned
the
of another
As
reversible error.
this Court unanimous-
indemnity.”
(Emphasis
is entitled to
ly
just
year ago
stated
one
in Garrett
added.)
Co.,
Freightlines, Inc. v.
Paving
Bannock
though
Even
majority acknowledges
the
Inc.,
730-31,
735 P.2d
“Agri-Lines
that
...
relies
common
law
(1987):
principles
of indemnity,”
ante
at
the
“Litigants
have a
jury
have the
majority
acknowledge
fails to
on every
theory
instructed
reasonable
Borchard, May Trucking and Industrial
presenting a
relief,
basis
a claim or
of
Indemnity
require
negli-
cases
thereto,
theory
where such
defense
gence of the indemnitee be submitted to
support
pleadings
finds
evi-
jury
to determine
whether
indemni-
dence.
Failure to
[Citations omitted.]
part.” May
tee
“without fault
on his
party’s
upon
theory
instruct
a
of the case
Trucking, supra at
321;
In-
Industrial
(Emphasis
constitutes reversible error.”
demnity, supra
requested
at 723.
added.)
negligence
three
that would
instructions
right to
jury
had a
have the
instruct
jury
allowed
have
to decide whether
every
theory presenting
ed on
reasonable
liability”
was “free of
or “with-
Agri-Lines’
defense to
our
claims. Under
part.”
fault on
Layne’s
out
three re-
[its]
cases,
negligence
of
quested negligence
were
instructions
and,
theory
Layne’s
one such
since
instruc
follows:
regarding
theory
tions
rejected
court,
by the trial
“THIRD-PARTY DEFENDANTS’ RE-
to instruct
“[f]ailure
QUESTED
upon [Layne’s] theory
INSTRUCTION NO.
case consti
Freight
Garrett
tutes reversible error.”
“It was the duty
Third-Party
Inc.,
lines,
Co.,
Bannock Paving
Inc. v.
Third-Party
Plaintiff and of the
Defend-
730-731,
supra at
which Third-Party guilty “The Plaintiff was negligent and careless misconduct at “THIRD-PARTY DEFENDANTS’ RE- time of and connection with the mat- QUESTED NO. 23 INSTRUCTION damages alleged in the Third- ters and Complaint Party Complaints “You are instructed that it is said when Chenery, the Plaintiffs William P. David these instructions that the Third-Par- Spencer, Spencer C. Lois N. ty required Plaintiff was use reason- proximately care misconduct caused and con- damage to avoid to another’s able Third-Party said events and resultant property, is meant tributed to degree any.” required damages, if Plaintiff to use *10 trial, Again, they its motion for new “THE WITNESS: Because had al- argued as follows: ways lifting plate, used the that’s what bought them for. we
“Uncontroverted and controverted evi- clearly dence at trial established that “Q July BY MR. McCURDY: Prior to Agri-Lines negligent by failing was ’75, you lifting plate had seen the used lifting care in pump use due owned to lift the well? Spencer. Mr. and Mr. Evi- “A Yes. Agri-Lines dence established that did not “Q Pardon me? purpose plate ascertain the lift of the “A Yes. that, placed pump beneath the head and “Q your knowledge, any To was there information, because lacked plate other reason for that to be under the lift crew was unable achieve a discharge your head on well? Accordingly, Agri-Lines smooth lift. “A No. duty breached a owed to Mr. Spencer. “Q you and Mr. If someone had asked what that plate you was for what would have said? Additionally, “.... it was an error of law Layne Pump’s to not instruct on primary defense, i.e., breached pull “A To duty of Spencer care owed to Mr. “Q way? In what Chenery.” Mr. up “A slings To hook four cable onto Thus, Layne’s theory regarding Agri- lifting plate pump.” and lift the negligence Lines’ clearly was stated in the Hiddleston, president entity Ron
pleadings. originally question drilled the well in too, presented, The evidence strongly ultimately retrieved the column after supported Layne’s First, theory. plaintiff resulting litigation, the incident in this tes- Spencer David testified that he knew that tified as follows: plates question the lift were installed for Now, “Q type the course of that purpose pulling pumps, and that work, lifting you did occasional- they had been used purpose for that on ly, you did in- ever have occasion to be previous occasions. He testified as fol- pumps volved lifts of that had lift lows: plates them? under “Q BY MR. Spencer, McCURDY: Mr. “A Yes. question was if July July on 29 or “Q you Can tell me where that would you someone had asked what this have been? piece of steel under head is for, you what would have told them? Right pump “A underneath the base. A I would have told them that was the
lifting plate pull pump well.” “Q you you I had asked lift Spencer Plaintiff David spe- also testified accomplished, your practice what was on cifically concerning his reaction the lift- whether to use or not use the available ing by Agri-Lines method used as follows: plate. lift “Q Okay. Sometime after the Well, “A question there was no wheth- dropped, you was did learn about the not; er use it or if it was there we’d
way Agri-Lines pump” onto, you that’s what tied was onto the Yes, “A I did. plate. lift “Q you What did learn? “Q Why is that? they “A That had used the ears instead Evidently they “A when installed the lifting plate. figured weight great pump they “Q your What was reaction to that? enough they plate. needed a lift Why they
“A did do it? “Q advantage plate could the lift What “Q you Why did have that reaction? give might you over what else be avail- onto?
able latch *11 Well, in plate very they a lift is a thick head Parma and “A very strong that’s and and were familiar with the use of piece of steel they’re plates. used for. But he also informed me that what
they might slings not have two of identi- might required, cal size which but he “Q I need BY MR. McCURDY: What get Layne would be able to them from in Ron, know, asking, I’m or what Nampa they as had identical borrowed opinion as to what you whether have an slings company from the same before. your in is in this the custom business plates lift as to whether available area lift the
are used to “Q Backing up for con- a second to the you ago versation related a few minutes “A Yes. Stutheit, between Mr. Mr. Ward and “Q your opinion? And what yourself regarding plate, the lift did ei- My opinion you “A is that if it’s there people you ther one of those tell you’re asking? use it. Is that what they plate knew what a lift was? “Q asking your opinion is I’m what Yes, “A both.” in your in business this about the custom regard- area, you Spencer cus- Robert A. further testified just not what do but. the ing industry your standard as follows: tom business. area, “Q knowledge in upon your if Based “A The custom this deep-setting, industry your experience in the in- deep pump, a you have a deep dustry, primary guideline if would a in re- maybe it doesn’t have to be that well, 12-, column, pair you deep if talking you work be have a 14-inch we’re it, it, you previously you defined have a plate you when install use a lift it, primary guide- plate place, lift is the you go pull you use or to when plate? line to use that lift put it back. practice accepted “A Yes. The would “Q why And is that? plate, if be to utilize the lift the lift weight “A Because of the and the ears deep plate present not on a well pump these bases aren’t de- that are on setting, safety I tie the shaft as pick pumps up.” signed to those well.” In addition to the testimonies David testimony Agri- In addition to this from Hiddleston, testimony Spencer and Ron employee, testimony Lines’ there was own supports Layne’s of two other witnesses potentially demonstrating Agri-Lines’ neg- negligent. claim that Jim- ligence operating rig used to lift the Brock, employed in my a witness for Ward, question. operator Mike pump drilling years, irrigation business for 35 rig, pertinent inquiries testified industry custom calls for testified began. lifting job before the were not made they plates the use of lift when are avail- Further, that the throttle on he testified Further, Spencer, Robert A. an em- able. pro- at three pump rig had to be set Agri-Lines at the time of the ployee of settings during the gressively higher first resulting litigation, incident this visited lift, potentially indicating few feet of the plate the lift the site and became aware of being not that a smooth lift was accom- question. He on the testified plished. plate the lift he discussed the use of the work members of the work crew before Thus, theory regarding Agri- Layne’s initiated: strongly supported negligence was Lines’ “Q you me what was said? Can tell and the evidence. pleadings both Freightlines, Accordingly, under Garrett Floyd I told “A Yes. At that time both jury instruct- to have the manager] Mike had [Stutheit, the service particular theory of its case. ed on this [Ward, rig operator] that we had a par- “[fjailure upon a to instruct require two Because lifting plate and we would reversi- case constitutes ty’s theory of the slings pump, Floyd lift said error,” and remand should reverse they ble we problem, had broken that was Freightlines, for a new trial. Inc. Garrett Co., Inc., supra. Paving Bannock *12 GRAYBILL, Claimant-Appellant,
Robert COMPANY, Employer, &
SWIFT
Royal Company, Surety, Insurance
Defendants-Respondents.
No. 16520.
Supreme of Idaho. Court
Oct. Pike, Jr., Falls,
Emil F. Twin for claim- ant-appellant. Munther, Boise,
Penland for defend- & Penland, ants-respondents. ar- Paul S. gued.
BAKES, Justice. sustained an industrial accident
Claimant injury employed by respondent while Company. diagnosed Swift & The doctors strain, accompa- having claimant as a back pain by complaints nied of back thigh pain. objective orthope- No and left neurological changes found dic or examining physicians. At the any of the engaged hearing claimant was time provided salary him a employment his equal that which he earned