Cheney v. Palos Verdes Investment Corp.

timony 665 P.2d 661 by plaintiff’s economist as to the future wage argument loss. The is that the Georgia Cheney, Kyle CHENEY and hus- economist did not take into consideration wife, Feedlots, band and 7V Plain- d/b/a the plaintiff’s prior work history, military tiffs-Respondents-Cross Appellants, history, length wages of time worked or v. received plaintiff during the four PALOS VERDES INVESTMENT CORPO- years preceding accident. RATION, corporation, a California Ranches, Inc., Brand and d/b/a Bell expert admission of testimony Florance, Defendants-Appel- Ronald within the trial court’s discretion and ab Respondents. lants-Cross sent a showing of abuse of discretion we will not disturb its exercise. See Potter v. and Mulberry, 100 Idaho 599 P.2d 1000 PALOS VERDES INVESTMENT CORPO- (1979). The appellants requested that RATION, corporation, a California trial court consider remittitur based on the Ranches, Inc., Bell Brand d/b/a prejudicial influence of the economist’s tes Florance, Ronald Defendants-Counter timony. While it was proper appel for the Claimants, lants to make such a request of the trial court, only rarely will this Court exercise its v.

power respect with to an argument that the Kyle Georgia Cheney, CHENEY and awarded quantum of damages is excessive. wife, Feedlots, husband and 7V d/b/a Finch, See Dinneen v. 100 Idaho Plaintiffs-Counter Defendants. (1979). P.2d 575 We decline to disturb the denial of the motion for new trial on this ground. PALOS VERDES INVESTMENT CORPO-

RATION, corporation, a California Ranches, Inc., d/b/a Bell Brand V. Florance, Ronald Defendants-Counter An additional issue by respondent raised Claimants, on appeal has to do with statutory changes v. in the rate of judgment interest on the X, during appeal. JOHN The final DOES THROUGH XYZ judgment from Corporations X, Through the district court judgment reflects that the will bear interest at Counter Defendants. per 8% annum based on I.C. 28-22-104. We note § the evolution of No. 14003. I.C. 28-22-104 during § the time of this Supreme Court of Idaho. appeal. Interest on the judgment should reflect the various amendments. Ram- See June 1983. sey Ramsey, 672, 679, 535 P.2d (1975).

Affirmed.

SHEPARD, BISTLINE, JJ., BAKES and WALTERS, J., Tern., Pro concur. Cheneys’ head of cattle

mately 800 Cheney agreed Gooding, feedlot in Idaho. chopped the cattle and feed them board ration, in return for slurry hay potato Cheney Brand would reimburse which Bell per cents head plus the cost of the feed ten Cheney the cattle. daily boarding and, cattle instructed not to vaccinate the immunized, herd was not to be because the responsi- that not agreed Cheney it was was among the herd.1 ble for death loss contract, to that Bell Pursuant oral 809 head of cattle to the Brand delivered feedlot in 1979. At the deliv- Cheney May time, the cattle were to twelve ery ten testimony and indi- months old considerable they were weak for cated that thin and age. hay their cattle were started on later and given potatoes, and then gain the appeared weight. period In the May from 31—June 29 of animals disease died of a called red nose. Routine would have the prevented vaccination dis- ease, danger is a recognized which cattle under feedlot conditions. Other than among defendants-appel- the animals of the Jeffrey Rolig, Hepworth, Nungester E. of lants, the occurrence of red nose at the Felton, Hepworth, & John Nun- Hepworth, was that Cheney normally feedlot not above Felton, gester Falls, Twin & for defend- expected. ants-appellants-cross respondents. Cheney At end of billed Bell May, the Salladay, Risch, Goss, G. Lance of Insing- boarding feeding Brand for the and Boise, er «fe Salladay, plaintiffs-respon- Cheney in ear- telephoned cattle. Florance dents-cross appellants. say June to that he had mailed a check ly direct pursuant billing Cheney to the and to SHEPARD, Justice. Relying ship upon the cattle to Nevada. appeal This is an from a in an in the judgment payment Florance’s assurance of arising mail, Cheney action from an oral for the to Nevada. shipped contract the cattle feeding care of a Ap- and herd of cattle. feeding bill for Cheney’s boarding pellants error in rulings, assert evidentiary Cheney was never When paid. the cattle pu- instructions the assessment of Florance, Florance refused to contacted nitive We affirm. damages. had pay, stating falsely that he allegedly Defendants-appellants and Pa- Florance that the check was in the mail “so indicated Corporation los owned a the cattle out of feedlot.” get Verdes Investment could stating as Florance denies the doing Although cattle ranch in Nevada business Ranches, mailed, April lying Bell Brand Inc. In check was and denies for the Segull, ranch because of an insuf- of manager purpose defeating Cheney’s possessory contacted lien cattle without the feed- ficiency hay, plaintiffs-respon- paying on the approxi- dispute not seeking place ing boarding, dents Florance does Cheney, evidently Segull discharged ny his em- 1. was from at resulted in of the evidence trial much substantially ployment being contract in a situa- at Bell Brand because of the uncontroverted parties. ordinarily hotly disputes testimo- would contested. between His tion which be admitted, nevertheless has never Cheney’s bill offered and daily since the feed been destroyed. sheets had paid. been Defendants-appellants argue Cheney non-payment filed this action for since, were records erroneous fraud, and for wil- alleging that Florance’s presented, they of feed reflected the costs ful and false misrepresentation made However, ing admittedly dead animals. purpose for the depriving Cheneys be, most, we deem error to inconse their lien and that would not cattle quential affecting only to be weight been released but for the fraud of given evidence by jury. Defend Florance. Cheney sought the owed amount also ants-appellants monthly assert that the contract, under the together with interest billings hearsay constitute and do fall and punitive damages, attorneys’ costs and within the business records to the exception fees. Defendants-appellants counter- general of out state prohibition of court claimed that Cheneys negligent in car- disagree. ments. We animals, ing for the negligence which had allegedly weight resulted in significant loss The trial court has discre broad to the herd and in the of 28 of the death evidence, tion the includ as to admission of jury cattle. The for returned a verdict the records, ing business and the of exercise plaintiffs $27,571 dam- compensatory that will discretion not be overturned ab $25,000 and ages damages punitive and sent v. showing the clear of abuse. Jensen Seigel Homes, Mobile against 189, found the 105 defendants on the coun- Idaho 668 terclaim. judg- (1983); Defendants’ motions for P.2d 65 Curiel Ida Mingo, v. 303, Moss, ment n.o.v. (1979); and for a new trial were denied. ho 597 P.2d 26 v. Daniel 612, (1970). 93 Idaho 469 P.2d 50 I.C. Upon appeal, defendants-appellants as- excep 9—414 codifies the business record § sert error in the plaintiffs’ admission of rule, hearsay stating: tion to the evidence; business records in the inquiry act, event, “A of an record condition or worth; into defendant Florance’s net the shall, relevant, competent insofar as be plaintiffs verdict that negligent were not in if quali- evidence the custodian or other cattle; their care of the jury the instruc- identity fied witness testifies to the and relating punitive tions to and the damages; preparation, the of its if it was mode and of punitive amount damages. Defendants- business, the regular made in course of appellants also assert that were plaintiffs act, or near the time of the or condition real party not the in and hence interest if, event, court, opinion and in the the of were not bring entitled to action. the information, the of and sources method justi- time of were such preparation as I. BUSINESS EVIDENCE. RECORDS its admission.” fy trial, The intent legislative requires that the busi- Cheneys’ At testified bookkeeper exception ness record be broadly construed. potatoes that the and to the hay fed cattle Moss, Mingo, supra; v. v. Curiel Daniel weighed were and loaded on trucks and supra; John Snowcroft & Co. v. Ro- Sons weights that the were for defend- recorded selle, (1955); 77 Idaho 289 P.2d 621 ants’ account on a It daily feed sheet. was Allis-Chalmers, v. 65 Idaho Henderson regular procedure to determine at month (1944). 149 P.2d 133 weight potatoes hay end the total of cattle, total was Ahlborn, fed to defendants’ which It held in Kelson was v. paid to charged sup- then at the same-rate (1964), 393 P.2d Idaho that business was added pliers degree feed. To that sum of a reasonable possessing records of ten boarding fee cents to be “yardage” ought the and trustworthiness necessity evidence, court, feed per day. daily head Both the per received in unless trial hearing summaries their examining and the end of month them and sheets after trial, preparation, At manner has serious doubt prepared by bookkeeper. reliability. Accord Hammond v. end of month summaries were to their only the Hammond, disease, susceptible specifically 448 P.2d 237 are more nose, red and that the standard and- (1968). precaution taken cattle owners prudent In Mingo, supra, ledger Curiel v. upon entry is to vaccinate cattle into a sheet indicating the use of fuel was admit disputed, feedlot. It is not and indeed Se- ted, source, although original it was not the Brand, gull, manager the ranch of Bell tes- but rather an summary, accountant’s tified, Segull Cheney instructed not to statements fuel provided regularly by a vaccinate the cattle and that the agreement Moss, company. supra; also Daniel v. See Cheney Segull provided between Hammond, Hammond supra. loss,” would not “stand death Cheney account records here were made in the ordi greatly because of the increased risk nary plaintiffs’ course of business and not accepting cattle that were not immunized. preparation for trial and we hold that noted, the evidence supports As above admitting trial court did not err in those conclusion that cattle died red nose records. existence of nose and that the otherwise red normally in the feedlot was not more than note, passing, We the evidence evidence, expected. This combined with offered as to whether the cattle could of red nose in a feedlot dangers consumed as much feed as is reflected in immunize, Segull sup- instructions of records, given alleged meager the herd’s verdict had ports Cheneys weight gain poor ship condition upon negligent. exercised due care and were not from ping the feedlot. That testimony conflicting. A resolution thereof was for Although there was evidence on behalf of jury and we find no error in the jury’s defendants-appellants that the cattle were determination of that conflict. i.e., thin, razor-backed, “green,” weak and

when shipped from the feedlot to the Bell Ranch, Cheneys presented Brand evidence II. NEGLIGENCE OF PLAINTIFFS. that the healthy compared cattle were to It was defendants’ contention at upon their condition arrival at the feedlot. Cheneys, hire, trial that as bailees for had Cheneys’ evidence also indicated that proving burden of their freedom from cattle were fed cared for in adequately negligence when failed to return the prevention of injury. illness and That evi- (the bailed property animals which had dence, conflict, in being somewhat was for died) Daniels, to the owner. Compton v. the resolution of the we no jury and find 915, (1978); Idaho 575 P.2d 1303 Lowe v. error in the jury’s determination thereof. Co., 91, Park Price 95 Idaho 503 P.2d 291 (1972). judge, argument The trial over the III. EVIDENCE OF DEFENDANTS’ Cheneys, agreed, of and he instructed the NET WORTH. jury pre that under such circumstances a assert that the tri- Defendants-appellants of sumption negligence existed. The de al court erred in defendant Flo- permitting fendants-appellants argue here that the rec questioned regarding rance to be his net support finding plain ord does not a worth. That revealed questioning by tiffs met that burden of We disa proof. record as follows: gree. or the Negligence lack thereof is “Q. Risch) Would tell this (By Mr. determination of a jury, matter for Nelson your net jury please? worth Hawkes, 185, v. 104 Idaho 657 P.2d 482 Westover, A. To (1983); totally you, really Robinson v. 101 Idaho be frank with don’t know. (1980), give you approxi- 620 P.2d 1096 and the record can an idea, mate from which but I don’t know for sure. ample demonstrates evidence Cheneys determine that could Q. That’s asking. what I am negligent. not A. It’s in excess of one hundred thou- sand dollars. and indeed offered sufficient Cheneys Q. feedlots What does that of? cattle in consist compelling testimony that Honor, MR. LEZAMIZ: Your same ob- thoughtful warnings 189-193. These jection. may be utilized. Evidence as to a de- only fendant’s wealth be offered for may

THE COURT: now the Defend- purpose determining limited ant —the witness has answered that he know, efficacy money judgment doesn’t of a in deter- so now I think we have ring future tortious conduct. The mate- broadened it so I think that counsel is entitled to of such inquire Objection riality ques- further. evidence would be tionable, course, overruled.” if the evidence at that point reasonably had not established the A discussion then ensued between Flo- malicious and wilful character of defend- rance and the judge trial wherein Florance ant’s conduct. And we add that the abso- vehemently argued he should not be made lute exemplary damages limits of an to answer and that he know the did not award depend on criteria other than de- Thereafter, value of his assets. Florance added.) (Emphasis fendant’s wealth.” testified to owning approxi- assets worth Libert, also Dwyer See mately three million dollars. (1917). P. 651 ordinarily It is axiomatic that admissible, Since such evidence was

wealth party or lack thereof of a is irrele the only remaining question is whether the vant as to any issues to be deter Court here was sufficiently pre cautious to However, mined the fact finder. this vent such engendering pas evidence from Court in Cox v. Stolworthy, 94 Idaho sion and 690-91, 496 prejudice by jury. The trial (1972), P.2d at 689-690 held court during an in-chambers stat colloquy evidence wealth may be admissible would, “I though, making an action ed: seeking punitive ruling damages if the court is inquiry may cautious be made as to defend prevent jury passion as [that a result thereof. ant’s permitting It was counsel for the stated in Cox: wealth] plaintiff inquire, suggest would that it’s “Setting absolute limit on an award necessary go into details. And does not satisfy the requirement of pro think one general questions or two can be

viding the trier of the objec facts with Hence, placed.” the trial sought court tive criteria which it may setting use questioning impact limit the line of and its reasonable award. guideline One note, however, the jury. on We that it was Libert, Dwyer mentioned in v. 30 Idaho Florance’s own demeanor on the stand 576, 167 (1917), P. 651 a libel action. The perhaps which served to accentuate the is Court jury may stated that a consider wealth, sue of his because of what could be evidence of the wealth of a defendant in misleading termed evasive and answers to exemplary damages. deliberations to him. questions propounded We find 908(2) Restatement of Torts is in ac § no error in the admission of the testimony cord with this view. So are Wetherbee v. $25,000 no the jury’s and indication that Am., United Ins. Co. of 18 Cal.App.3d punitive damages pas award resulted from 266, Joab, Cal.Rptr. (1971); 95 678 Inc. v. prejudice engendered by sion or the wealth Thrall, 245 291 (Fla.App.1971); So.2d of defendant Florance. Cook, ex Hall State rel. v. 400 S.W.2d 39 429, (Mo.1966); Hicks v. 246 Herring, S.C. IV. PUNITIVE DAMAGES. Meister, v. (1965);

144 S.E.2d 151 Dalton 173, (1971). 494 22 Wis.2d 188 N.W.2d Defendants-appellants contend as to mindful, however, punitive issue that the trial court damage of the criti- “We are failing the use erred in to follow the standards first against cism that has been leveled wealth. set 94 Stolworthy, such of a defendant’s forth in Cox v. Idaho of evidence 683, Ailshie, J., (1972), upon in expanded Sum- 496 P.2d 682 Dissenting opinion regarding in a later of decisions Pringle 300, merfield v. series Idaho 144 [65 propriety punitive damages and measure of (1943)] Hodel, P.2d 214 supra; ‘Exempla- in categories certain of cases. ry Damages 175, specified in Oregon,’ 44 Ore.L.R.

903 See, Co., (see, e.g., Jolley Puregro power e.g., Stolworthy, v. 94 Idaho Cox v. supra). 702, It held in that a (1972); Thompson general 496 P.2d 939 v. Dal- was Cox award of ton, 785, (1974); 95 Idaho 520 P.2d 240 Hat- punitive damages justified only Northwest, field v. Max Rouse & categories. Sons first two In arising cases there (1980); Idaho 606 P.2d 944 Linscott v. after, the Court to fit various attempted Co., Rainier Nat’l Life Insurance Idaho factual situations into one of the three de (1980); 606 P.2d 958 Yacht Club Sales categories. lineated Those efforts were of Service, Inc: v. First Nat’l Bank success, ten without successful, or if Idaho, North 101 Idaho P.2d 464 achieved in an unconvincing manner. In (1980). infra, As will be developed we hold Co., Jolley Puregro 702, 496 94 Idaho P.2d instructions, verdict, that the the orders (1972), example, for there was involved judge, the trial judgment the conversion of farm machinery by means proper. of a wrongful foreclosure on collateral. Al though the case clearly involved a private Defendants-appellants’ argument is we, business dispute, for reasons which the grounded in the refusal of the trial court to unkind or might convenience, critical call jury instruct the on the specifically holdings held the existence of an element of consum of Cox v. Stolworthy, supra, and Linscott v. er fraud and classified the under matter Rainier, supra, and in its refusal to reduce category Yet, one of the Cox scheme. punitive award of damages by found Co., Linscott v. Rainier Nat’l Life Insurance or grant a new trial. It is (1980), 606 P.2d 958 we argued $25,000 found as dam punitive found that an insurance company’s failing ages from a resulting private contractual payment make on a meritorious claim did dispute, compensatory damages where the not indicate an intent to take advantage of $27,571, excessive, were found to be only is the consuming public under case one type not only on the facts of the case but also as two, categorized and we rather the mat a matter of law and can be only attributa ter as a private dispute business under cate ble to the passion prejudice jury. gory Hence, three of the Cox scheme. pu We disagree. And because we hold that nitive damages in Linscott were to be limit the measure of compensatory damages as ed, punitive and we reduced the damage outlined in impractical, overly Cox is de award of the trial court. As articulately manding, and inconsistent with law as it Bakes, expressed J., by Jolley v. Puregro relates to other damages, Cox v. Stolwor Co.: thy, supra, is hence hereby erroneous and is difficulty “The with these standards in part overruled. they provide objective no definable Cox, In the court system devised a for guidelines determining what is a rea- determining the amount of punitive dam- award; exemplary damages sonable ages might which be any given awarded in appear merely standards to serve as ma- case. Exemplary damages were divided nipulative vehicles which the review- into major categories. three one Category court can substitute its ing viscerally-dic- deceptive included business harm- schemes judgment tated for that of the of trier general ful to the consuming public, such as fact. v. Prin- generally See Summerfield advertising false or fraudulent sales tactics 300, gle, 65 Idaho 316 et 144 P.2d seq., (see, Clark, e.g., Boise Inc. v. 92 Dodge, 214, (J. Ailshie, seq. (1943) 222 et dissent- 902, (1969)). Idaho Category 453 P.2d 551 Note, ing); ‘Exemplary Damages in the endangerment physical two involved Torts,’ 517, Law of 70 Harv.L.R. 529-531 well-being or health of members of the Co., (1957).” Jolley v. 94 Puregro supra, general public (see, e.g., Village of Peck v. 709, Idaho at 496 P.2d at 946. Denison, 747, (1969)). 92 Idaho 450 P.2d 310 Dalton, v. Thompson supra. See also Category private three included business ' disputes contracting parties between who We now hold that to fit infi- attempting equal knowledge bargaining nitely involving puni- are of fact situations varied 904 damages

tive into the overly simplified 267, (1969); Idaho 460 P.2d 402 Blaine v. categories restricted set 665, forth in Cox has Byers, 91 Idaho 429 P.2d 397 (1967). been demonstrated to be at best unworka- judge authority The trial has to order a new ble and at worst impossible. In both Lin- damages trial if in his are judgment exces- scott, supra, Dalton, and Thompson Finch, v. su- sive or inadequate. Dinneen v. 100 pra, we noted the possibility of simi- 620, “other (1979); Idaho Fignani 603 P.2d 575 v. lar in situations which aggravating Lewiston, 196, and dire City of 94 Idaho 484 P.2d circumstances (1971); Eshelman, necessitate 1036 departure Warren v. 88 Idaho general 496, from the rule (1965); of dam- 401 exemplary P.2d 539 Checketts v. Bow- man, ages 463, in Cox v. 70 Idaho 220 Stolworthy.” (1950); We now take P.2d 682 the final Luther step overruling 416, v. First Bank of 64 discarding Troy, Idaho (1943). 133 P.2d 717 approach forcing Alternatively, Cox all fact a trial situa- judge may tions reduce an peremptorily into one of the three excessive categories set award, jury forth in order remittiturs of damages, Cox. to the trial in the overturn that law. Such is no novel appellate treatment of a damage issue. See 70 Idaho the case.” Boise judge or ages as opposed to another amount lies in inappropriately ently certainment their very Boise Dodge, (1901); an award of 908, 453 P.2d at 557. P.2d 786 P.2d at many-faceted strictly construed schemes or rules which plary damages should be left first Loan Ass’n v. measured Boise City Canal determination of the trier of the fact. A v. Stolworthy, supra, 94 Idaho at We overall held that hold that first instance a jury I.R.C.P. 687; We deem that an award for exem 463, (1970). by any precise appraisal nature court’s Prudential and cannot one amount of supra; Checketts v. fact 220 P.2d 682 should not be jury verdict as a matter of punitive Johnson, “[pjunitive 59(a)(5). require Co., Dodge, “Thus, patterns incapable authority of the circumstances of 7 Idaho damage awards are Federal supra, the true basis for standards.” Cox We have consist approach be into neat pigeon decision, damages (1950); hampered of definite as punitive 640, to modify or governed forcing Savings Bowman, 65 P. 145 Idaho at 688, Horn v. subject to the to the dam with 496 & 562 acceptance of an additur or remittitur. or condition a denial of new trial on the trust granted Nichols v. 516, roads, damages. and discretion in the matter of punitive ages, it awards in the area of compensatory dam- man, P.2d 682 100 Idaho Since quoting Mendenhall v. MacGregor Triangle Checketts v. Co., Co., reasonably justify. whole and not allow a verdict to stand for a “Practically, greater amount nal.) rests duty (1966); “The 286 98 Idaho 83 Idaho to the trial supra. % trial 159 Cal. it is to largely P.2d responsibility wide discretion in (1950); Sonneman, 620, 624, entirely appropriate remedy As McCandless judges ^[*] 334 Bowman, Cf. carefully weigh the trial court must bear the stated with the trial 392, (1955); and Bond v. judge Ryals sfc 603 P.2d than the evidence will for excessive verdicts 113 P. 366 358 565 P.2d 982 91 Idaho (Emphasis v. a similar authority v. Broadbent Dinneen v. traditionally every Checketts Bow- ^[*] Kramer, P.2d 860 Idaho reviewing 575, judge, 199, (1911): United the evidence that we en- case.” % 579 76 Idaho 418 P.2d (1961); (1977). (1979), Finch, whose origi- Rail- been Dev. jury holes or compartments. deference Such While no concrete formula for control, to the trial court is consistent with the punitive damages an award of will appellate compensatory judge overview of dam the discretion of the trial will contin judge It that a trial exercises ages. general is clear ue to be exercised within the advis awards of laid down this Court in authority jury compensatory ory guidelines by over substantially puni as a thir the of damages by acting past. purpose the Mindful of awards, Thompkins, they v. 93 tive we note that are juror. damage teenth Deshazer

905 not favored in the law and therefore should pause much more and con- very likely to be awarded in the only most unusual consequences pay sider the if have to compelling circumstances. to be They are by more the actual loss suffered an than awarded cautiously and within narrow lim plaintiff. individual An occasional award its. Hatfield v. Max Rouse & North Sons compensatory against of such damages west, supra; Jolley Puregro, v. supra. See would have little parties deterrent effect. Service, Inc., also Yacht supra; Club Sales & judgment simply compensatory A for Linscott, Jolley, supra; supra; Cox, supra, would offender damages require the to do behind, as holding that the policy punitive than money no more return the which he damages is deterrence punish rather than from plaintiff. had taken the In the punitive ment. An of damages award will expected profits, calculation of his the be appeal sustained on only when is is wrongdoer likely to allow for a certain shown that the a defendant acted in man amount of will have money which to be ner that was “an extreme from deviation object returned to those who victims too conduct, reasonable of standards and that and he vigorously, perfectly will be con- the act was performed by the defendant bear litiga- tent to the additional cost of with an understanding of or for disregard price tion continuing as for his illicit its likely v. consequences.” Hatfield Max business. It stands to reason that Northwest, Rouse & Sons Idaho supra, 100 of deterring chances him are materially 851, at 606 Linscott, P.2d at 955. supra. See by subjecting pay- increased him to the justification punitive for must damages of punitive damages.” ment Boise be that the defendant acted with an ex 909, Dodge, supra, 92 Idaho 453 P.2d at at tremely mind, harmful state of whether 558. that state “malice, be termed oppression, we Since hold that issue of an gross fraud or negligence” (Morrison v. alleged punitive excessive award of dam Produce, Inc., 448, Quality 92 444 Idaho ages largely within the discretion of the P.2d (1968)); “malice, 409 oppression, wan judge, trial we now whether examine (Klam 171, 118 Koppel, tonness” v. 63 Idaho discretion was in properly exercised P.2d (1941)); 729 or simply “deliberate or case, stant wherein judge the trial refused (White willful” 217, Doney, v. 82 351 Idaho grant judgment to or a new n.o.v. trial. P.2d (1960)). Linscott, 380 See generally, We hold that sufficient was placed evidence supra, 858, 962; 100 at Idaho 606 P.2d jury before the questions raise the of Dalton, 788, Thompson malice defendants’ and of whether (1974). P.2d punitive would serve damages award of as Although Dodge, Boise supra, involved a a deterrent similar future conduct. The “far-flung scheme, fraudulent systematical- have jury reasonably could determined that ly profit,” conducted language for wantonly maliciously deprived Florance Shelton, therein quoted from Walker v. lien their on the cat Cheneys possessory N.Y.2d 223 N.Y.S.2d 179 N.E.2d tle,'in disregard of rights Che (1961), highly in a appears appropriate unjustly and in order to be enriched neys by case such at bar: as the one Cheneys’ labor. The could have damages “Exemplary likely are more deliberately concluded that Florance purpose deterring serve their desired fraudulently misrepresented Cheney case, in a similar conduct fraud such as payment had been made. us, that before than in area of any other alleged error the trial hate, Cheneys tort. acts out of anger One who or court’s refusal to admit evidence of other instance, or committing assault li- bel, contractual of defendants- likely private dealings to be is not deterred which damages. appellants, they argue fear of the other evidence punitive On hand, help satisfy category would them to one deliberately cooly those who Cox, scheme, far-flung requirements supra. two engage category fraudulent herein, profit, conducted for In of our decision we find it systematically view 906 We

unnecessary to resolve that acclaim question. any According my elsewhere. to other defendants-appellants’ citations, examined Shepard’s volume of no other assertions of error and to be find them court in of the other 49 states has ever without merit. doctrine, adopted mentioned let alone ' Stolworthy given it. v. was a footnote Cox judgment The of the trial court is af- Michigan mention in a 1976 Law Review firmed. respondents. Costs to No attor- damages, p. Vol. 74 at punitive article fees neys’ allowed. damages are con widely

1286: “Punitive HUNTLEY, JJ., BISTLINE and concur. wrongdo to be in preventing sidered useful from for the malefac ing being profitable DONALDSON, Justice, specially Chief See, e.g., v. 94 Idaho Stolworthy, tor. Cox concurring. 683, 691, 496 682, (1972)(‘Clearly 690 in P.2d has awarding punitive damages of damages of punitive such cases award been a troublesome area of law for this re making should aim at the cost of such consistency. Court with any consider uneconomical’).” anti-social conduct petitive However, majority opinion only will single has Unfortunately, if statement following succeed occurs: applied not cases before the coming been First, if court in using the trial its discre- it, court uttered of which Hat- very which majority’s tion heeds the admonitions that Rainier, field, Club, and Massey-Fer- Yacht (1) in law punitive damages are favored Peterson, v. 102 Corporation Credit guson should most only and be awarded in the 111, (1980), prime 626 Idaho P.2d 767 circumstances, (2) and compelling unusual examples. punitive only are to be damages considered wrongdoer as a and other deterrent to the Service, v. The Yacht Club and Inc. Sales as punishment, similar offenders and not Idaho, First Bank of North Idaho National (3) the mal- complained act involves (1980), 464 was the 101 Idaho 623 P.2d ice, oppression fraud. opinions three string in a 1980 third judgments court Second, which reversed district findings if or court jury damages. These three by awarding punitive record supported complete a detailed First Dis- by so from the Judicial adequate as allow an review cases emanated appellate presided court. which were trict in contested trials outstanding three of Idaho’s district over Third, if refrains from appellate court service both on distinguished judges —with acting as a finder and from substitut- fact totalling this bench the district bench and that of trial court ing judgment its v. Max Rouse & fifty years. over Hatfield proper in the exercise of its discretion. P.2d Northwest, Idaho 606 100 Sons caveats, these I concur Having expressed opin- denied without (1980), rehearing 944 in the majority opinion. 17, 1980, too, case jury was a ion March Club, court, Yacht where the trial Justice, concurring. BISTLINE, specially new on a motion for reviewed record practicing attorneys As with other error, and, upheld the finding no trial 1972,1 being an ardent admir- was far from Life v. Rainier National verdict. Linscott cases, v. those Stol- companion er of Cox P.2d Insurance Company, the ensu- Puregro. v. In worthy Jolley opin- denied (1980), rehearing without cases disposition of ing appellate years 17, 1980, tried the court was ion March awarded damages had been punitive where jury. without my disen- greatly served to enhance only this ab- In Yacht Club I mentioned v. Stol- The doctrine Cox chantment. genesis law had its change in the rupt un- Puregro, totally v. worthy Jolley P.2d Idaho out, Stolworthy, 94 Shepard Cox points as Justice workable opinion of that (1972). The author jurispru- plaguing has Idaho while it been Club, Hatfield, and Yacht met with the author of has not also years, for over ten dence process Linscott. promulga- Unlike the in v. which rule was then Stolworthy,” Cox tion of of procedure, rules where commit- defendant, less than a week old. The how- tees of attorneys participate in discussion ever, only exemplary knew that the dam- drafting, and Cox v. Stolworthy’s drastic $5,000 ages of were left The standing. change in the law was made with absolutely truly no purpose decision served whatever input no whatever from litigants the there but to advance the of v. doctrine Cox Stol- involved, bar, public. from the or from the worthy. readily of apparent Not because no There was clamor for the Court’s activ- repetitious heavy merely verbage the lifted appellant ism. The in v. Stolworthy, Cox Stolworthy, from Cox v. the thus Court 94 Idaho (1972), 496 P.2d 682 com- $5,000 punitive dam- up affirming ended plained only judge that the district there ages compensatory damages and of $150. jury had affirmed a imposed verdict which $5,000 punitive damages for the willful and Hatfield, Linscott, Club, In Yacht bulldozing private malicious out aof access Massey-Ferguson, also in four able most roadway. Issuing a lengthy opinion which judges punitive damages trial held allowa- completely punitive the rewrote law of jury ble and either affirmed a award as to assessment, damages, the the Court lowered amount, or set the amount. Each was re- $2,000 but failed to explain figure how its versed, occurring with in every reversal $5,000 was more appropriate than the dam- opinion authored one or of by the other the ages upheld by assessed the the Stolworthy authors of v. and Jolley Cox v. trial court. It was a little case. But as Puregro. A review of those cases—as dis- Chief Justice Burger remarked in address- tinguished from a of the opinions review in ing the American Law Institute in Wash- those cases—discloses that those trial 10,1980, ington, D.C. June in “[cjhanges the correct, judges only entirely were not but and, law silently, come like a glacier, the attempted comply with what movement almost imperceptible, often thought of v. Stolworthy the authors Cox first in emerging goes an obscure case that Puregro v. in Jolley unnoticed.” had mind. In Club, Yacht it is true the that award of Co., Jolley Puregro v. punitive damages was a challenge main (1972), P.2d was released but seven days and, although appeal, the award did not after the release Stolworthy, of Cox v. assault, come under Court’s direct point of time considerably before the remit- majority titur bare of gone managed had down in the Court find the latter. error in of underlying the award com- Jolley Puregro In v. another able trial pensatory damages, which was to ne- said judge $5,000 assessed punitive damages as on punitive damages cessitate a new trial as for the conversion equipment. of farm The well. findings trial court’s of malicious conduct

were in opinion upheld. the Court’s That In Massey-Ferguson another able trial it, should have been the of end but it was judge punitive damages. awarded modest not, and the case served as a vehicle to Club, Again, as in Yacht the trial court was newly espoused endorse the of doctrine Cox reversed the punitive damages again with Stolworthy, notwithstanding v. falling gener- with the of along reversal in Jolley Puregro Court did not reduce damage premise al The main award. punitive damages the award Judge which opinion Court’s was that court trial Dunlap properly as appropriate. had fixed to perceive Massey-Ferguson failed Fi- Court, upon The without evidence right nance Co. at all times had act, which to of a apparently pulled out hat default, possession upon collateral $2,500 the sum of as fees and attorney legal wrong and therefore could do no $2,500 allocated the other as not unrea- breaking padlock helping itself to corpo- sonable deterrent for the defendant Peterson, collateral the title to which was in taking This, said, ways. ration’s was permissible being “under the do so. general trespassing rule even majority simply Massey-Ferguson policies was totally unjustified; and, Notwithstanding

retried that issue. that it second, that proved even had it did hold Peterson to nominal com- entitled Laurelie had she epilepsy and that had (the pensatory damages compensatory $150 application not disclosed this on the nominal), v. damages Jolley Puregro in was forms, attempted go it to still further it the wiped punitive damages. out by claiming than it could have to rescind the policies. suggests This evidence that Shepard, authoring today’s

Justice in opinion Court, acting the insurance was in company for the that the bad mentions There is in the punitive Court in Linscott “reduced” the faith. merit observation the damages. Again was authored opinion by counsel the Linscotts in their brief v. by proponent the author and of the Cox company everything that has ‘[t]he Shepard doctrine. did Stolworthy Justice gain by fighting fight a bad and nothing (nor Donald- not sit on the case did Justices just obligation.’ to lose but interest on its son, Bakes, reason to myself) or and has no judge these Under facts the trial was Lin- just how that comprehend untenable punitive in of justified making an award was, did, reluctant- opinion although scott damages.” ly, punitive to the come conclusion that 861, (empha- 100 Idaho at 606 P.2d at 965 allowable, were nevertheless damages but added). sis away. washed the assessment Notwith- however, Cogswell’s Judge findings, were standing Judge that had allowed Cogswell considerably stronger Supreme than the $1,800 attorney’s provi- in fees under the of finding “suggestion of a bad Court’s beyond being sions of I.C. 41—1839—it § His to his facts applied faith. conclusions the entitled to dispute that Linscotts were modest award of clearly justified rather not, on appeal, fees—Rainier did attorney’s that he damages, and demonstrate punitive $1,800 attor- error the assign as award of guidelines Jolley of v. Pu- acted within the So, factu- being fees. such the actual ney’s v. Stolworthy: and Cox regro affairs, Supreme al state of did the and then away Court do but take them TO v. ENTITLED in of Cox “ARE PLAINTIFFS

reinstate the same the name Linscott, 100 Idaho DAMAGES Stolworthy punitives! PUNITIVE 862, at It was said that at 606 P.2d 966. vs. Jolley Puregro of “The Idaho case as $1,800 should have been awarded “the 702, P.2d in- 94 Ida. Company, 939] [496 I.C. damages rather than under punitive by agent of the defendant volved acts ” This on the ludi- 41-1849 .... borders § repossessing in cer- company wrongfully not even asked Had the Linscotts crous. plaintiff. to the machinery belonging tain entitled absolutely were for punitives, re-examined Supreme Court The Idaho Adding fees. insult attorney’s their damages Idaho and punitive law in that held had Judge Cogswell injury, after pronouncements following made punitive damages be assessed should Rainier action. to this pertinent which are that described exactly of conduct because “ the rule of exem- we understand ‘As 857, Linscott, quoting at there 100 Idaho damages, they cannot punitive or plary Libert, P. Idaho Unfried shows the evidence recovered unless be authored (1911), opinion wrong- that the action clearly an award agreed McFadden Justice malicious, wanton, gross is doer justified: was facts are such or where the outrageous, justi- was the trier of “In this case fact oppression, in malice and imply toas had concluding that the Linscotts fied in the court the law authorizes which case to make Rainier Life’s refusal shown that punishment as money a sum of to allow totally unjustified.” was payments injury done. wrongdoer for to the “ at 964. at 606 P.2d first, introduced shows, the evidence ‘From

“The evidence therefore bar, appel- it manifest honor the Life’s refusal case Rainier lant’s typified oppressive conduct the conscious anee contract respondent’s wilful of disregard grossly outrageous. rights justifies which the imposition of

an exemplary damages award. The “AMOUNT PUNITIVE OF DAMAGES district specifically ap- court found that Puregro (supra) vs. “Again Jolley pellant’s agents’ deliberate, acts our Court re-examined Supreme Idaho willful, malicious, and intentional and punitive purpose damages the main for the sole purpose harassing re- and commented follows: spondent. The court further observed “ noted in vs. ‘As this court Cox Stol- that appellant ignored explicit instruc- authorities worthy, supra, recog- other tions not to take equipment belong- purpose nize that predominant ing to respondent. These findings damages is to deter exemplary the de- by competent evidence, substantiated fendant similarly and others situated and will not be appeal.’ disturbed on comparable from in indulging conduct “It is the finding of Court that Any in venge- the future. vindictive or defendant acted in a conscious willful punishment aspect ful of an exemplary disregard plaintiffs’ rights of and that damages de-emphasized by award is their action was gross outrageous authority. this line of Cox v. Stolwor- justifying the awarding punitive Court in Morris, thy, supra; C. Punitive See damages. Cases, Damages in Tort 44 Harv.L.R. “The evidence is without conflict that: (1931). prefer We to accentuate “1. The sold the policies defendant of purpose those eases which define the of insurance to Laurelie Linscott for a valu- exemplary damages as a deterrent able consideration. the and others from engag- defendant “2. Laurelie Linscott made misrep- no. ing in similar conduct in the future. resentations in policy application the con- We any exemplary concede that dam- cerning her health. ages assessed a defendant will against “3. represented The policy was to the punishment. be appear to him to How- plaintiffs and to by Laurelie the defend- ever, we the feel that courts in these agent ant’s covering as a policy pre- all civil be primari- cases should motivated existing conditions six months after is- ly a of by purpose deterrence and not suance. be a purpose punishment. of In other

“4. words, After the by claims filed exemplary the assessment of plaintiffs, the defendant payment refused damages prompted by should be alleging misrepresentation by assure, Laurelie court’s desire to jury’s or to the Linscott. The refusal continued even in possible imposition extent via the the face of all of the medical monetary penalty, advice in that similar conduct this case that Laurelie Linscott was not does not occur in future. Punish- suffering se, ment, se, from epilepsy per and that be left to the per should crim- Hodel, she had accurately reflected her health inal “ at supra, law. D. 178-82. in application. condition the insurance public purpose mindful of the ‘Being “5. complete There is a lack by exemplary of evi- to be served an award of decide, dence in the case that would in any damages, necessary man- it is in justify award, ner position monetary defendant’s terms of a how best nonpayment of implement purposes. these claims. or advance such It necessary is to determine what size

“6. only The that the conclusion Court accomplish pur- award will best can make in complete view of the void in poses and to some extent of deterrence evidence supporting defendant’s posi- punishment.’ is that tion conduct defendant’s was a conscious, Jolley again willful “The examined disregard and deliberate Court in plaintiffs’ under the vs. Ida. P.2d rights Stolworthy, insur- Cox [496 as to standards that should be used ascertain harkens back fifty years can

682] in there were arriving punitive damages only justices. when three ago which are ordered, ‘logically legally evaluated, and Shepard today’s opinion Justice also rationally judged.’ Hatfield v. Max for mentions Rouse & Sons punitive therein stated that proposition “In Stolworthy the anti-social conduct be sustained damages appeal only “will on involved a non-violent trespass on land that acted when it is shown the defendant affecting only two individuals. Attor- performed by manner that was in a fees, fees, neys expert witness and reim- understanding with an of or dis- defendant bursement to the plaintiff time lost one likely consequences.” for its No regard occasioned the defendant’s wrong statement, but on the question should were the main items considered in award- appeal .totally ignored Hatfield it was ing punitive damages. circumvented. “However, expanded the Court the cri- in Hatfield found that jury teria in assessing punitive damages where just type of conduct case there necessary profit to remove the mo- damages. Judge punitive and assessed prac- tive from the defendant’s business trial, passing at the and in presided Towles tice and to make it uneconomical for a motions stated “that the post-judgment similarly defendant and for others situat- with the verdict of the was in accord engage oppressive practices. ed to puni- amount of presented evidence and the (See Clark, Dodge Boise vs. 92 Ida. disproportionate tive is not to the damages P.2d 551]). [453 the Memo- damages by jury.” actual found “It the acts opinion is the Court’s that Order, R., p. 194. randum Decision and unjustifiably of the defendant in this case Thus, in jury it is seen that the Hatfield denying poli- on valid recovery insurance type the both found the of con- judge and category cies falls within the latter and Shepard today duct for which Justice cites that punitive damages an award of over Hatfield. and above those allowed under Cox vs. sitting McFadden Simply put, Justice Stolworthy justified. is who judges adopted with the four district opinion “It is the Court’s that the sum Linscott, differently. his views in “found” $20,000 of .... is awarded to the plain- IV, opinion The Hatfield in Part after punitive damages tiff as to deter the reciting Stolworthy Jolley the Cox v. and practices business of the in defendant set- littany, fairly does at least come Puregro tling insurance claims and in order to grounds the the stating upon close to which deter other insurance companies from assessed, judge upheld, and the trial jury similar conduct.” damages: punitive The trial bar has found it difficult indeed “In case respondent argues this that to understand how four respected district punitive of damages the award could judges who sat with Justice McFadden in based on one or all have been of three persuaded Linscott were their es- (1) of conduct: Rouse’s failure to courses judge teemed brother district did not know instructions Koyle’s follow that David’s doing. might what he was One surmise not to be sold for less than skidders perhaps it was because the four district $25,000; (2) Koyle its advice to that he of the judges opinion relied on the author to price the minimum assure himself should it is true peruse the record. And that the son-in-law bid on the having his skid- three require only copies Court rules still of ders; actions of (3) the Rouse’s attor- and appeal the record —all of which are ordinar- proceeds of the sale in issuing the ney in kept here in the Court build- ily Supreme with check release en- multiple-payee a ing. photocopy In this of versatile the effect day pitting had of which dorsement son, reason for longer forcing machines there is no the David to against father compromising three so far as his own requiring only copies choose between —which A the history. jury his fater’s who saw and heard delaying receipt claim of thought the due him.” A district funds witnesses otherwise. judge who saw and heard the witnesses 606 P.2d at 956. Idaho otherwise. thought is above ex- significance Of extreme clincher, which Then one comes cerpt’s omission to note that from the time all time for should demonstrate of February the sale in of 1975 until after creates a doctrine and undoubt- person who entry against and the of judgment trial it, may become obsessed edly believes it, money Max Rouse held a11of the & Sons opin- of no recall. The point with it to the Zimmerly which it had received from breach goes say: ion to “Nor does the on David Hatfield’s wrongfully sold skidder. reck- appear have been intentional or to Obviously it been must have deemed no was for less.” or not was so Whether moment in the Hatfield court’s view that an instance, determine in the first jury to agent withholding was wrongfully money and the the second —but judge district to belonging principal. his conduct Such appellate not for an court review. would in the most be people minds of outra- rule it is the who geous. always jury In some amount has been that minds would embezzlement, will a Here believe disbelieve witness. but the Hatfield court was Rouse, who was Harold a man impressed give any mention witness enough Here none of Hatfield ever saw. gross such of a court principal conduct his relieving said in fiduciary. Only jury’s after the verdict what the Hatfield court entry after Max judgment did Max Rouse Rouse & Sons from assessment & $12,- punitive damages: Sons hand over to David Hatfield the (less commission) wrongfully which it appear “Nor does the breach to have And, year. detained for over one whether reckless. Harold been intentional or not, embezzlement or evidence presented to that he Rouse testified that he believed power showed day that from the had to refuse to no auctioneer accept trial, verdict, sale until after judgment, bid stated which was below a minimum, Max Rouse & Sons withheld David Hat- that his testified standard operating procedure money field’s leverage as to force him to to to was refuse sell forego his claim against it selling for below items which a minimum bid was set. on his price reserved people most That believed auction sales were is. he his —which reason would see outrageous as conduct. all and once a ‘without reserve.’ that legitimate so Having some, stated but item, not that bid bound was received he was of the Max Rouse & Sons conduct which to un- operating accent it. He was thus both provoked and lawsuit, necessitated the der a mistake of law. But is no there proceeds: the opinion intentionally evidence that he acted question “The remains the plain- whether the purpose causing a loss David to injured a tiff was as result of an ‘extreme Hatfield —the to the evidence fact is deviation from reasonable standards of contrary. He testified that the sale of conduct’ which is performed lots intentionally was done requiring very rapidly, recklessly. 100 split-second Id. Idaho at everyone decisions. And P.2d at 962. A at cases glance agreed dis- that John Poysky was ‘nice’ after above it immediately cussed makes clear the sale and tried to convince Zimmerly that breach was not not sufficiently skidder, this a to take the despite his clear right extreme deviation from reasonable stan- so. do I.C. 28-2-328(2). § Carl Wright, dards conduct merit an award of another Rouse employee, also punitive damages.” tried to ‘sweet talk’ Zimmerly.” 852-53, (empha- 100 Idaho at 606 P.2d at 956 Idaho 606 P.2d at 956-57 added). (footnote omitted) sis (emphasis added). That court “glance” which Hatfield Harold said a lot of Rouse things and the glance took was without doubt the shortest jury him. didn’t believe Apparently court, Hatfield who never saw the man or auction sales reserve,’ were all ‘without and heard him testify, thought he a mighty was that a legitimate once bid was received he fine man $26,000 who accidentally sold a was to accept bound it.” The author of the $12,000 skidder for immediately after a like Hatfield opinion only could imagine $13,500 skidder offered at did not receive such person, thought a but that it had the any bid and was withdrawn by Harold right testimony, believe such even Rouse’s use of an “air” bid. Above under- though jury obviously did not. Would lined is the of a testimony professional auc- anyone? The Hatfield court also read the tioneer and the main owner of the defend- record carelessly. opinion reads: ant corporation Sons, Max Rouse & North- “As a result a place conversation took western, also, corporation, Nevada sale, about fifteen minutes before the shows, the record the owner of other auc- which the skidders were Koyle discussed. companies. tion strange It is not that the son-in-law, Hanks, and his Frank who jury might not have the testimony believed business, was logging Poy- also which the Hatfield court utilized in order to sky and Harold Rouse took part. explain throwing its out punitive dam- actually “What was said during ages. That did not believe Harold disputed parties conversation was by Rouse is not surprising where the Hatfield at trial. Koyle maintains that he told (buried footnote) court in a provide does Harold Rouse and that he re- Poysky this illuminating statement: quired a minimum all four price on doubt, then, “There can be no $30,000 on each of his own and skidders — reserve, sale with and that Rouse $26,000 each According of David’s. could have assured that David’s skidder Koyle, John assured him Poysky did not sell below the stated minimum by there were bidders who would offer as it at time withdrawing any before com- $32,000 much as for the skidders. Both its sale.” pleting Poysky Harold Rouse and John testified n. 606 P.2d at Idaho at 853 967 n. 7. Koyle expressed concern about the How court can concede that appellate market, skidder and was worried about footnote, opinion, admission in its albeit price. the skidders’ testified Poysky sale then to exonerate the auction- proceed Koyle pro- that he advised that he should judgment court’s as to appellate eer on the by having tect his his son-in-law skidders reason, simply beyond credibility his Hanks bid on them for him until moreover, frightening. The same footnote price. reached the minimum sale Neither the Max Rouse & also admits that Sons Poysky Harold Rouse nor testified that being brochure advertised the sale as one Koyle explicitly agreed to such a scheme goes with reserve. The footnote even so say they understood after the but both 28-2-328(2) far as to point to I.C. which § conversation that this method would be reads as follows: “ by Koyle protect used to his skidders.” sale is with reserve unless ‘[An auction] at 606 P.2d 946. goods explicit are in terms put up

without reserve. In an auction with re- conversation, There was indeed a but the serve the auctioneer withdraw may court remained to the Hatfield oblivious goods at any time until he announces any dispute against fact that was resolved ” completion of the sale.’ Sons, -Max and the was the Rouse & 100 Idaho at 853 n. 606 P.2d at 957 n. 7. credibility of the of the witnesses. A judge Hatfield, in an law, strong This witness for David just is not Idaho but Idaho law manner, Labowe, U.C.C.; was Ronald B. which is indirect part my of the recollection it, company for the auction forty-nine adopted corporate is that counsel states have Koyle With Hatfield on the imagine pro- and it would be defendant. difficult to stand, fessional the witness were asked and these questions auctioneer who on these stand can his that “he believed honestly say given: answers

“Q. Mr. Hatfield I am hand ting price, minimum reserve but the exhibit, you Plaintiffs Exhibit changed nothing cross-examination as to read, and ask you read aloud these what Hatfield Koyle being testified as to lines, first three which is a sen- complete the pre-auction conversation alluded to in tence? excerpt opinion from the above Court’s “A. ‘Prior to the auction Koyle and set Koyle forth. Hatfield was returned to David Hatfield told my client that certain the stand after the defendant corporation pieces of equipment should not be sold had put on its case. On rebuttal he testi- unless received a certain minimum fied: bid from the parties.’ outside “Q. Mr. only brought Hatfield “Q. All right. question, Mr. Hat- back you stand in connection with is, field, letter, that’s Mr. Labowe’s his thing brought one that was up by statement, is his statement true? defendants in their case and that’s this “A. Yes. matter of their testimony Poy- that John “Q. Is any part says in error where it sky you said that were there when they from Koyle and David? you told that you should have Frank Well, “A. I acted in David’s behalf. Hanks, shill, speak, so to to shill the sale? “Q. you And are the one that had the object “MR. REED: I to the use of the conversation? word shill when the testimony of the “A. Yes.” witness was protect. Exhibit letter from Mr. Labowe. “Q. Protect. Protect bidding It would beyond seem any dispute that the whatever want to call it. I’ll use the corporation officers were advised of mini- Now, protect. my word question. Let prices

mum bid on the four Koyle skidders. First, me again. do it over we know you Hatfield told the jury prices on which had conversation where talked about he instructed the auction corporation: the minimum bid and we are not going “Q. And what is the instruction that Now, back into that. this new matter Mr. Labowe talking about there on the they brought up that we covered skidders, four what did tell them? with Frank Hanks but didn’t cover with “A. I told them then and several you, they saying, they were both other times— there and John Poysky talked to “Q. See, Just then. don’t want bid, having about Frank just use the to volunteer because that makes Mr. bid, word on the skidders that were com- Reed have to object. You have to fix David’s, ing up, yours and that’s what I’m places times and Mr. Hatfield and we are asking you My question now. is simply just talking about this time right now? this, happen did that ? “A. I told him then I was worried No, “A. it did not.” about the skidders and that I—

“Q. I didn’t ask you being about wor- Keeping in mind that opinion Court’s later, ried. ask may you that but I pre-auction stated that conversation want you question, to answer my Hatfield, Hanks, amongst Koyle Frank did tell him prices the minimum Rouse, Poysky having John and Harold on those four skidders? just Hatfield flat-out con- Koyle seen that I price

“A. told him the minimum on tradicted the testimony Poysky $30,000 my two skidders was and the having Rouse1 as to the latter two been $26,000.” minimum prices on David’s was “protect” advised that Frank Hanks should skidders, testify did Frank Hanks was Such on direct examination. On cross- of the con- testimony examination it was that there to—no mention of his suggested had been more conversation than the set- appearing opinion: versation in the Hatfield portions testimony Poysky appended. 1. Pertinent of the of Rouse “Q. When you go did to the auction “A. Yes.

sale, Hanks, Mr. and how did you go? “Q. right. All Did Koyle Hatfield Well,

“A. I by myself went that give you any direction or instruction or morning pickup, a the one I drove request to bid in for him anything at that down there. I can’t even remember what sale?

the date was for sure. No, “A. he didn’t. He didn’t even

“Q. When you got you there did see realize that I had bought skidders any of the Hatfields? over, until the sale was about I don’t believe. Yeah,

“A. Koyle was there. It was a pretty morning, cold and he was starting “Q. you How did know that? Where the equipment, and I went around and was he when this sale was on? helped rigs. him start some of the Well, remember, “A. as I he was driv-

“Q. you Did meet any person- ing the pickup that the auctioneer was Sons, nel for Max Rouse and Northwest auctioning from. morning?

that “Q. Here’s Hatfield in the Koyle cab “A. only thing truck, that I can driving this and where is the auc- tioneer, recall is that when I Koyle and went in Mr. Rouse? my the office and I had letter of credit “A. He’s in the pickup. back of the said, and Koyle my ‘This here is son-in- “Q. On the bed?

law, buy he wants to a skidder and he has “A. Yes. this letter of credit what with you do do “Q. buyers, And where are all the got that?’ And he took the letter and I prospective buyers? signed up got and I number and my Well, gathered “A. around the front that’s all that I can recall. equip- of the auctioneer and around the “Q. Now, what about the events of ment. that sale. You have told the already skidders, you the two the two bought “Q. You went to an auction sale. You tell Koyle day. you skidders that Can us were hoping buy equipment some if just happened how that recollect you is that price right, correct? it? “A. That’s right. one buy “A. had in mind skidder “Q. And that if you expected you when I went to the sale and that’s about bidder, were take the successful I obtained. I didn’t care financing all the right? is that equipment, bought whether I one of David’s skidders Yeah, right. “A. that’s Koyle’s or skidders were Koyle’s. one of “Q. you And felt that when I felt like I a little bit newer skidders and two bought you got these skidders one was the best buy would whichever were worth what bargain, they buy. paying for them? Yeah, good price. “A. I felt it was a “Q. You were here when Mr. Reed Now, have “Q. any did conversa- of Mr. testimony Poysky. read the Koyle tion before the sale with Hatfield asking .that? I was Did hear he wanted about minimum bid that reading and Mr. Reed was an- questions those two skidders? swers for Mr. Poysky? No, didn’t, not the sale. “A. before “A. Yes. back, in the “Q. you, sitting And did one then —let’s “Q. you bought Now my question, to direct attention a con- minute. Did up back where Mr. part hear that about

did morning Poysky with Mr. versation talking you buying about Poysky was Wright? Mr. something in or bidding back or them far as I know. “A. Not as Hatfield? Koyle Rouse, “Q. procure Harold bids.”). However, How about with Koyle and Frank Hanks auctioneer? denied the advice was ever given. “A. No. There was never a more clear-cut case of “Q. quite You are sure? an appellate court’s rewriting creating and “A. Yes. facts in order to overturn a jury verdict. Now, “Q. if specifically, do recall And all done in the name of Cox v. Stolwor- here, can stretch recollection thy Jolley and v. Puregro, and all done by coming place to the where the auction the author of Cox v. Stolworthy. It is not office, conducted, was then being then, surprising, co-proponent of Hatfield and stepping Koyle outside with the doctrine of says those cases in dissent and dis- Poysky Harold Rouse and John Cox, overruling majority “[i]n skidders, at all like cussing anything punitive abandons the damages standards that? successfully utilized consistently by No, “A. I don’t. I can’t even remem- Court for more than ten years in favor of a like, to tell Poysky ber what Mr. looked system which employs guidelines no what- truth, today. until came here soever.” I have underlined “successfully.” How success is to be determined lies in the “Q. testimony Your is that don’t eyes of the beholder. may One be certain recall conversation? the trial bench and bar would be No, “A. I don’t.” have, delighted today’s to from sole dissent- Tr., pp. 123-36. er, further discourse of the successful utili- Again, it is difficult to how an comprehend Stolworthy Jolley zation of Cox v. v. appellate court, court, any appellate can Puregro opinions in the illstarred of Lin- with equanimity say that “Rouse’s advice scott and Hatfield. that he own Koyle procure bids his [to behalf that the Court to- price complains to assure a minimum for the dissent the rules skidders], followed, had it been ... throws out might day “gratuitously damages avoided the loss of which relating punitive David’s skidder.” 100 ” Stolworthy .... Idaho at at in Cox v. (emphasis P.2d established original). The Those rules jury liberty simple. was at to believe The answer to that they gratu- even as came obviously go gratuitously did believe Frank Hanks and ashes; As I Hatfield when dust to dust. Koyle itously. testified that no Ashes out, such rules” given. well-pointed advice was Which is not hard to have “those hope Rouse, nothing in cases where responsive understand when Harold on offer- came ing skidder, got absolutely juries judges David’s first no had done district court bid, but declared it sold to the amounts. very assessing No. a non- well in bidder, $13,500, existent and in that contrary, quote On the and as a of coun- manner protected the skidder from argument sel from oral in the dissent indi- $26,000 for less than the price. reserve cates, continuing v. validity Cox Stol- understand, actuality What is hard to was In worthy partic- discussed counsel. unbelievable, is an court overturn- appellate ular, I singularly impressed was that nei- ing premise verdict on the that ad- ther counsel was aware Justice vice to violate the law—which had it been case, McQuade’s in that and re- dissent have contravened the given clearly would voiced in If Justice Jolley Puregro. fraudulent, 28-2-328(4) put law as I.C. § — McQuade correct, say and I that he the onus on the Hatfields for a loss suffered was, Stolworthy the Cox v. rule was exposed when the auctioneer for sale a skid- usurpation authority unconstitutional der for which it was then known there were legislature. to the strictly belonging no bidders and sold it to one of mer- his change Moreover, chant sale followers for less than such itself was forewarning price! half the reserved that the doctrine would or should be short- (“We 606 P.2d at 957 If the dissenting opinions do not of course in Yacht lived. condone Rouse’s Club and in Koyle Massey-Ferguson advice to that he were not fur- ther adequate forewarning, “Q. then the schol- Was that blind number you arly law by Judge review article Kramer in have?

the Idaho surely Law Review was. Fore- “A. Yes. warning usually signals change in ease “Q. And there were no bidders? law, although is, forewarning perhaps, not absolute, as witnessed recently in Chand- “A. No bidders I can recall. Boise, ler v. City 480, “Q. why proceeded Do know he P.2d 1323 (1983). sell it instead there saying was no sale? APPENDIX Well, “A. sale if you’re an auction OF JOHN EXAMINATION POYSKY get any something you just bids on “Q. What on the first of the happened as well it you’ve go act like sold on to there, four skidders as recall? piece. the next All will do is create suspicion bought everybody’s

“A. Mr. the first mind that Hanks two. kill it whole sale is fixed and for the rest of “Q. bought He the first two. There has it. been that these testimony bought here were at a certain these price. Are reflected here .“Q. on the happened What next one? plaintiff’s exhibit lot number put “A. The it up auctioneer for bids. which first bought would be the one was “Q. put Do recall what he it for up $27,500? for bid act? “A. Yes. $10,000. “A. I think it was “Q. That’s recollection of what “Q. All was there right. And another happened? bid? “A. Yes. Yes, “A. there was.

“Q. up there That number that’s his “Q. number? What was that? Yes,

“A. it is. $12,000. “A. “Q. All right. Then second one was “Q. And what then? happened $27,000? sold for $12,- Zimmerly “A. He sold it to Mr. “A. That’s true. 000. “Q. competitive Was bidding there “Q. You at the time and present there, as you recall? immediately these after the two occurred had

“A. there was. been sold to Mr. Hanks? Apparently “Q. right. All third one shown “A. Yes. down which is here is number the first “Q. present? Was Mr. Hanks

of David’s the serial number and this Yes, “A. he was. $13,500? was sold for “Q. present? Was David “A. Yes. that. “A. I can’t answer Now,

“Q. you recall of that sale what do heard happened as it it? “Q. Hatfield? Koyle How about I can “A. as near as recall Yes, driving pickup. “A. he was apparently for sale and put up auctioneer happened then. “Q. right. All What it, bid on so nobody the course of events I presume? items You sold the rest of the we he sold it to we have call a blind “A. Yes. have one in number. It’s a number —we every sale. stop come to a at “Q. The sale didn’t point? shown here as 827? “Q. This number . “A. No.

“A. Yes. “Q. aware time Were of that “Q. And these are before? items that go through

number 30 and would it say be that fair-to skidders, on those no. “A. Not two the major items of equipment, except for “Q. you anything ever told Had been skidders, those came after that? any money owing? about “A. Yes. Yes, Koyle told me that he “A. owed “Q. Now, the sale was completed. Do money some at the bank. you recall proceeds the total of the sale? “Q. the whole? On “A. neighborhood In the 200,000. “A. Yes. “Q. And what happened then? “Q. But in terms of two skidders those “A. Immediately after the sale? you aware? “Q. Yeah, after the sale was over and aware, was not “A. I no. completed, in connection with these two “Q. Zimmerly? went to skidders? In You Mr. connection with these happened? “A. Yes. “A. Koyle came up to me and that said back “Q. you Koyle. And then came

the skidders were encumbered at bank get again? ahold of you Koyle Did and if we didn’t receive enough money out Yes, Koyle I came and— “A. back of them we couldn’t sell them so that’s discussion any there further “Q. when I Was explained to him that the third that was owed skidder passed money and been amount of no about the because of bid time that one that fourth had been two sold but that I on those skidders — try would about? talking to unsell it. one, that’s all we are guess “Q. you Did know who it time he Yes, had been sold that think at “A. Yes. to by then?. because,’ ‘Well, apparently said, that’s fine meantime and to David in the he had talked Yes, “A. I did. $20,000 there was in excess said that “Q. Who was that? owing. “A. Paul Zimmerly. you recall? “Q. Any specific figure that “Q. you What did do? “A. No. “A. went Paul and I Zimmerly testimony here about “Q. There some asked if he wouldn’t void the sale in view of $26,000? the problem we had owing with the at the bank. particular recall that “A. I don’t

“Q. get that, Before you mentioned. Koyle figure when was came to you tell what did he tell about No, nothing knew “Q. right. All owing say he anything owing about —did at that time? about that the bank? No. “A. Yes, “A. he said that there a mort- gage on the two skidders at bank. there was If had known “Q. Okay. $20,000 owed, they have would more than “Q. Did he tell how much? to the auction? gone “A. I think he mentioned the fact that there was received, more than they yes. Well, point if at that I had known “A. through go would have had to “Q. Was there further discussion have probably something auction but would up ended with a specific figure? been done. had to have

“A. I don’t recall. now, time? “Q. to that prior But “Q. In any event it was more than what price was? “A. No. “A. Yes. “Q. Would include it?

“A. When I first met Paul he was a contractor and we a sale for “A. had him. No. “Q. “Q. Why say My not? I know that. Let me this. question good sorry. wasn’t and I’m very “A. in my own opinion I wasn’t sale, Wright At the time of the after Mr. sure they were worth that much money. left, said he could have it and had but “Q. Now, you came back and told Koyle 22nd, just saying day February I’m Hatfield what? you for one at least knew that he was a “A. That I had talked to Mr. Zimmerly equipment? dealer in this kind of and Mr. Zimmerly agreed had to void the sir, “A. To be honest with I did very you sale and I thought I had the problem solved. buying not. I he was that machine thought “Q. And what happened then? for his own use. “A. I left with another customer that “Q. doing know what he was You didn’t wanted to talk to me about having an auc- really? then tion sale and apparently Mr. Zimmerly went “A. No. and talked to his partner and they decided they weren’t going give “Q. to If he dealer on the up the skidder is a books so they went in and paid for it. your company, you records of don’t have a tax you? obtain sales from him do

“Q. But you had no further discussion with Mr. Zimmerly after that? “A. That’s right.

“A. No. “Q. you Are with the fact acquainted that he was not tax be- charged any sales “Q. There has been some mention here dealer, cause he was a did know that? you guess about —I Mr. Zimmerly mentioned about prior some work. Had company Yes, “A. I saw that bill. ever handled a sale for Mr. Zimmerly? “Q. You saw that today? here Yes, “A. we did. “A. Yes. “Q. And has Mr. Zimmerly appeared and bid on other items other affairs that “Q. right, All Now, thank

you’ve you. gotwe had? skidder, Zimmerly Mr. the second the one “A. sales, Other yes. you. He got. put question Mr. Reed “Q. And you left with another buyer I wrote it down you language, asked in this you had no further contact with any of here, say another bid and you got —I these people? bid, another Harold got mean Harold “A. No.” ‘Yes, bid, said, Rouse, got another $12,000 Zimmerly,’ Mr. he bid from got CROSS-EXAMINATION OF Now, was that were another bid. though JOHN POYSKY choice of words just inopportune “Q. Mr. Poysky, you realize and I prior was there a bid? discussed a lot of this over in Seattle ten days ago because in really and that was in “A. I can’t answer that your deposition we always read floor I don’t see yesterday? my position on the on, people for looking what is I’m

“A. Yes. bid. “Q. You don’t mind if I ask a few more questions because of some Mr. things mean that’s that. “Q. appreciate brought up, Reed do you? can so asking question I’m why fast. it went it, maybe because clarify “A. Fine. You bid. of another in terms question “Q. thing. One You knew that this Mr. bid? prior awas say there really can’t dealer, Zimmerly was a what we would call “A. No. a dealer? item, withdraw auctioneer can

“Q. a bid. accept When Mr. would come Rouse to the doesn’t have to skidder, second one Mr. Zimmerly there. says right “A. It so got not an you’re realize auctioneer are —I essence, Poysky, Mr. “Q. Isn’t that you? have on David’s done what Mr. Rouse must “A. No. In the item. withdraw first skidder was was withdrawn? that, it essence he did “Q. you’ve quite But been around a few auctions now? guess no bids so I he received “A. that’s with- guess withdrawing if that’s

“A. Yes. it. drawing “Q. You understand auction- does, eer he asks for bids? Now, along and “Q. moved as this sale “A. Yes. first skidder they came to David’s “Q. And be the way would this he would bidder, way no think that there was

do it and did he it that way do this day, withdraw rather than it was handled ‘We’re now here Clark to this skidder such it, it to Mr. explained way you and such and I’m asking a bid and went Reed, auctioneer Mr. Rouse as $10,000? act as put on the through the motions and “A. That’s what he probably did. said, for he ‘Sold though had bid 13,5.’? “Q. And be could it that Mr. Zimmerly being maybe operator just said, a good ‘I’ll “A. That’s true. 12,’ bid because the other one hadn’t been “Q. really happened? Isn’t that what

sold, be, had you think, it? could it do So that Mr. Zimmerly only made bid and Well, right. that’s “A. I believe said, ‘I’ll bid 12.’? “Q. you I mean know at didn’t the time “A. possible. That’s you, did that there being is on the floor as it, you call I can’t you mean see “Q. everything. Now, I when and discussed you this He could have had a bid really you as far as ten days ago we didn’t have some Seattle know? we, this with evidence there us did like the terms of the sale? “A. possible. It’s

“A. No. “Q. very Well I likely mean couldn’t he? “Q. And you thinking day had been that “A. Yes. was,

that reserve, this sale was a without “Q. The doesn’t say auctioneer who he had you not? sold it to does he? “A. Yes. “A. just gives He the number. “Q. you And since then seem to think “Q. That’s what I wondered. every On items 10 of the and 12 terms of sale item, say kind of Hanks bought when those reserve, show that it was you with see that two did the auctioneer did the auctioneer you? it, don’t haven’t Maybe you looked out, call ‘Sold to bidder number 829.’? I don’t know. want you Do to look at it? Yes, “A. he does. Yes, please. “A. “Q. 829. Okay. Sold to bidder When it “Q. I to be don’t want unfair. You’ve up came on David’s first skidder knew always got been nice to me. You’ve it right then, you actually knew he didn’t have here. a bonafide knew right bidder. You there spot? on the Oh, Okay,

“A. here it 10 and 12 you is. “A. right. believe that’s

wanted? “Q. to, Because would “Q. Yes, look at those and see if there wouldn’t you? think, isn’t something on saying that

Q. your all He is the auctioneer at auc- tions? Well, yeah, you “A. would use 827. A.

“Q. You’ve been here for Yes. around four years, up, know when 827 comes it’s no Q. Now what was said as best recall sale? at that time? number, “A. No that’s not the standard well, Koyle A. Well said I intro- that — every sale. isn’t the number on duced him to Harold first the conversa- “Q. You kind of shift it around? tion to the that Koyle came around fact was worried about the four with skidders

“A. sometimes start the auc- all way market the was and and he tion, one, there, he has I think over we said that buy his son-in-law was desirous to particular started with sale number one? 801, it and we number here started there, them from so we

registering used Q. one? buy To 827. The next time use 201 we as the may conversation, yes, buy A. one. That’s the starting number and will be the maybe And, said, “Well, fine, you’re that’s more number. always than welcome to bid we are looking “Q. just You have terms had the And, bidders.” then he wanted know sale in is your place hand. There no on happen with rest of might them there that tell your buying pub- said, Hatfield, long your and so I “Mr. as bidder, lic that do have this blank do son-in-law is here and he to be you? agree- And that’s auction bidding on one the four skidders and if Hatfield, ment with Mr. is it? you wanted to have some protection on “A. No. them, man he’s the to do it.” “Q. And and Mr. Hatfield never Q. Hatfield, time, Did at that Koyle tell your life, discussed the blank bidder ever you anything prices? about Did he say you? did anything about dollar amounts? “A. No. A. I don’t recall. “Q. nothing There was then really Now, was Q. present and Mr. Rouse stop knocking Mr. Rouse from off David’s there at that time? second skidder to was number there? A. Yes. pulled He could have out of a bid the air and sold it? Q. any bidding Hatfield have Koyle Did have, number?

“A. I he guess yes. could “Q. right. All But he didn’t? I A. know of. Not that “A. No.” Q. David? And did Tr., pp. 273-90. I know of either. A. Not that

EXAMINATION OF JOHN POYSKY Q. right. any All Was there other con- tact —this take place, presume, didn’t in 30 as Defendant’s witness seconds, it was a little than longer that? Q. right. All present Who else was at discus- A. five or ten minute Probably the time conversation? sion on it. Rouse, A. Hatfield, Harold Koylé Frank myself. Hanks and Q. And there was else anything said that you can recall concerning you said Q. Let me back up Why a minute. was — that Koyle was concerned the price, about there, Harold Rouse what function did he market? serve? A. A. Yes. He was auctioneer.

Q. did follow the order Incidentally, here as listed? Q. And was there else said anything concerning how this should be done or what Yes, we did. A. should be done or anything like that? are rather Q. I notice the initial items Q. that, Only as I explained, thought small, would why there some reason those is son-in-law, that his if desiring to set-up be first? get a certain amount of money out Yes, a sale with a normally A. we start skidders, that he bidding should do the somebody is Maybe number of small items. them. It wouldn’t look good to have very gives to be late to the sale and this David or himself do it. arrive on time and we them a chance to Q. Now, was there any mention of the maybe selling 30 to 45 minutes small spend minimum bid?. term items. A. I don’t recall. Q. belonged Koyle The skidders that Q. recall, Now are saying don’t Hatfield are lots numbered 27 and you don’t recall whether there was or was that correct? any there mention at all of it? A. Yes. A. I don’t was, recall there no. two, Q. All Then the next which right. Q. Now, All right. was there fur- David, belonged are the ones that ther discussion at that time? numbered 29 and 30? lots A. No.

Q. And again no—were any written in- structions DEPOSITION TESTIMONY OF provided? JOHN POYSKY

A. No. Q. What your function at this auc- which was read to the tion? original evidence Well, A. particular this sale what “Q. Poysky, Mr. would state your we call worked the floor. name, address, your occupation full Q. What does that mean? profession? A. the auctioneer is up on the My Poysky, “A. name is John Garland block, auction which happens to be a pickup Crockett, Seattle, and I live at 2417 West instance, in I’m down on the floor and Washington, and I’m affiliated with an auc- we’ve got a bid you crowd around and quite tioneering company appraiser and auc- often the auctioneer might not see some- tion, I would call a man that guess you it body that wants to bid or trying to bid and Kind of a appraises signs up auctions. and we have him, floor men help make, description gener- hard but that’s this was my particular function that day. what it is. ally

Q. Did bid at that auction? “Q. summary me a little you give Could A. No. of the structure this Rouse Auction Com- way? That be the shortest pany? might Q. youDo ever? business, I since guess, “A. been A. No. business, auctioneering about strictly Q. Was there anyone else as a floor man equip- industrial and construction plants, there? ment, equipment, anything logging A. guess don’t there was. We don’t mess that can be auctioned. Now, Q. belonged the skidders that rugs, around with furniture and Persian Koyle put up for sale I presume? His things like that. the indus- Generally two skidders were auctioned off the nor- father, Max, trial of it. Harold’s heavy end mal course of events? He’s dead now. The company. started the that, sale, is that day get if want to A. Yes. “A. Secretary-Treasurer. think I’m mean, what you generally happens “Q. being Are a Director besides day the sale? Secretary-Treasurer? “Q. Well, that, get before we down to “A. Yes. you mentioned Harold Rouse being there. “Q. just Are there the three Directors? He’s the son of Max Rouse? “A. Yes. “A. And he owns the company. “Q. I didn’t ever ask who is President. “Q. Who are some of the other sons? Who is President? “A. There are none. presume “A. it must be Harold.” “Q. Harold, he’s the main stockholder? “A. Harold had a cousin that was con- EXAMINATION OF HAROLD ROUSE son, now, sidered a who is dead so Harold lock, stock, owns thing and barrel. Q. name, your Would state sir? “Q. And it’s probably something you A. Harold Rouse. may know, or may gather but as I it Q. Where do live? wrote, from Mr. Reed in some letter he Angeles, A. Los California. has more than one corporate entity? Q. your occupation? And what’s

“A. Right. A. Auctioneer. “Q. Max Rouse Northwest and— Q. And what with? company guess “A. And I they’ve got couple too, down in Angeles, Los also. A. Max Rouse and Sons.

“Q. Now, Q. Behind it all is Harold Rouse? who was Max Rouse? “A. Yes. A. He was father. my “Q. Q. of the information which fil- long Some How have Max Rouse and Sons corporation tered down to me on the came been business?

from a Roland or Ronald LaBeau. A. about 1920. Since LaBeau,

“A. Ron yes. Q. pass And when did father “Q. You know him? away? Yes, passed

“A. Ido. A. He about —he had been away before, years retired for almost 15 he “Q. officer, corporate corpo- Is he a like years ago. about four passed away rate attorney, corporate counsel? Q. He had been retired. Who else in Well, I you. “A. can’t answer that for company you? business with attorney corporation, yes, He’s for the but time. rephrase question. My A. brother-in-law also at that now— passed away. He also “Q. Who are some of the other officers Northwest, Q. in Max Rouse Harold? And Max Rouse and Sons & Sons besides is a separate company? Well, see, Northwest, “A. let’s which, course, with, I’m involved is Carl A. Yes.

Wright myself. and in that Q. you And have an interest

“Q. Wright, company? How do W—R— you spell Yes, “A. What the struc- A. I do. W-R-I-G-H-T. corporations

ture is of the I have no idea. Q. long actually been you And how “Q. What’s status here with in the auction business? Carl’s Northwest? years. A. 28 or nine

“A. He’s Vice President. auc- Q. you And where have conducted “Q. yours? What’s tions? was Well, I believe the conversation

A. about all the equipment, we talked mainly Well, in A. most parts of the United believe, mainly about the skidders but and States Canada. was that Mr. before Hatfield indicated Q. And what kind of do you business do? them. nervous about type A. What you equipment mean? that, Now, you get before in talk- Q. Yes, Q. uh-huh. equipment were there discus- ing about Large equipment, A. earth moving and value of these items? sions about the logging and then down to machine shops Normally go through when we A. things of that nature. equipment there is a discussion look at the Q. These major are equipment? items of people think the things as to what sale, part auction that was worth at an A. Pardon? the conversation. Q. Major items of equipment? Q. This was conversation had— A. Yes. to all the apply equipment? did this Q. And in recent years, five, last say the Yes, just A. talked about more than we how many auctions a year your compa- has particular the skidders time. ny been involved in? Q. con- And would this have been the IA. would say from 50 55 or so a prices on equip- versation about all of the year. ment? Q. Now precise function do just we we A. Well discussed what serve this company? worth thought might it was and what A. I’m the auctioneer. bring. Q. You personally call the auctions? Q. this happen Does in other auctions? A. Yes. every go A. auction I go Most to we through bring, discuss what it might we sometimes discuss it with ourselves Q. All right. Now, was this conver- the owner. sation we have talked about before?

A. Yes. happened in this instance Q. And that Koyle? with Q. All right. me, Can tell was this about minutes before the auction? A. Yes. A. Yes. Q. believe his was And son-in-law Q. And who present in that conver- along? sation? Yes, positive long. he was A. I’m A. Mr. Poysky, Koyle Hatfield and I Now, can tell us what Q. All right. his believe son-in-law. particu- conversation with was said in that Q. That’s Frank Hanks? to the skidders? lar reference Frank, A. yes. indication, was an there A. Q. Were you introduced to him at that they thought what Mr. Hatfield guess, as to time? was, know, he worried worth and Yes, I A. was. bring they might of what price about the Q. logging Was he business at identified as I guess the son-in-law? because he and in the conversation time was down Yes. A. what would be done wanted to know Q. He had a bidding number? bring if didn’t to see more or less A. Yes. Well, my function as money. enough a we’ve been in business auctioneer, Q. Now, All right. what was con- time, to sell the equipment is you long versation as recall it? So, Q. you declared it sold to number— highest bidder and I indicated that to him Yes, which we designated A. had before and I guess got as he more nervous John as the number we would use at sales him, told it had been mentioned that his where this could happen. son-in-law was going to bid on a skidder and that if he protect Q. wanted to That is himself 827? good man to do this protecting would Right. Okay, A. in this instance it was. be his son-in-law. When we left that little

particular group of conversation I was un- time, Q. That was the number at that der the impression that if there was any right? protecting to be done that the son-in-law A. Yes. would do it. Q. Okay. When the second one came Q. Now, did the son-in-law or the son- now these are all consecutive? up, in-law Koyle Hatfield indicate to that he wanted buy one of the skidders? and I happened, All What right. A. at clearly this instance because remember A. I heard mentioned that there was think what’s time had to particular this one skidder that the son-in-law did want to selling we were very fast. When buy, yes. one, I I mean the third one which that first Q. Now, Koyle did say Hatfield any- in and nobody 5 and came opened up thing to you about minimum bid? in I I thought Mr. Hanks didn’t come then A. There was never a mention of a min- of the fact big had made a mistake because imum bid. he would have bid bigger that I went than Q. Are absolutely sure? keep on it if wanted to it. now they So one, really I hadn’t here I hadn’t sold A. I’m positive of that. maybe, it because now I sold and worse the Hatfields would be mad at me figured Q. one, When you got to the third I sold it and wanted to because hadn’t happened there? because Mr. Hanks didn’t bid on it. sell it A. When gone this had for around 27 I So, up when the next one came instead figured that one go, know, would some- 13, 5, $10,000 I it at starting it at started near, wheres 20,000 maybe in the range or I realized I had made a mistake and because so, because it So, was a little older. I said finally, more bids and what’s his I asked for “13, 5” and at that point I get tried to more name, 12,000 came in at and then Zimmerly, money and nobody came in so I sold it to a for more and then Mr. Hanks didn’t I asked number that we had designated just before thought mind I I had better my bid so for that occasion. Sometimes when go it, I At that sell because what could do. to an auction sale you make a mistake and bid, I on the other point legitimate had you open things high too and it belongs to didn’t, I so I sold it. one you. stuck, I was just I couldn’t back Q. Now you knew that when Mr. Zim- down. If I backed down I would lose face merly legitimate bid that he was a bidder? and lose the crowd and all the rest of the equipment that would have possibly to sell Yes, bid, A. well if anyone else had would have brought a lot money less be- just happened to be that it was Mr. Zim- cause people would think there was some- merly. thing going wrong. I So could not afford Q. And this anybody? would be to lose face with the crowd. So when A. Yes. opened at that particular point, which had mistake, made a which I had done before it Q. It didn’t matter. Then no bid came time, wouldn’t be the first but the indica- from Mr. Hanks? tion was that the other ones went for that A. No. money kind of I thought they go, would Q. anybody Or else? know, $20,000. in some range above 2,500. “111 give person A can sound out his own bid can’t he? A. No.

A. I hear what you didn’t said? Q. A person, buyer can sound out his CROSS-EXAMINATION OF you? own bid to HAROLD ROUSE supposed A. He’s to. Q. Now on this one proposition on Q. up You call for a bid and he holds his the —I don’t know if we got ever an answer hand? question to this this second skidder —on A. Yes. that Mr. Zimmerly got, you we' know didn’t cry virtues, did you ask for a bid? Q. But he can also Okay. say say you — got “I’ve this nice skidder here and I’m say, A. Normally I don’t ask for a bid. I bids, just open any- for who will start it “$10,000,” say, or whatever I think the can, Anybody get up where.” I can and say opening bid should be. 5,000, go I’ll can’t I? to Q. You can’t yourself bid you? can A. Yes. No, A. I but start it off. Q. That’s a bid isn’t it? Q. You said by asking $10,- for a bid of A. Yes. 000? Q. And supposing— A. Yes. A. That’s why trywe to start it at a

Q. These people— just reasonable amount so thing won’t A. $10,000 I don’t ask I say and then if happen, you’re saying. tryWe to the people you have to realize you’re — avoid that. dealing with psychology. If I think the thing is worth 17 or 18 and I opened it for Q. right. All Now supposing he did 10 there’s a lot a room go up, to but we can 2,000 start at like you said and then Mr. make mistakes at times. So when I sold Zimmerly called out a increase and $500 one, the first the next opened one I you 2,500 here have a bid of you 10. That is the function talking of an about said, auctioneer. that and you “That I have to make that decision at would be a bad the time. situation.” That would be 2,000 If I had bad wouldn’t said at it? that time Mr. maybe Zimmerly $500, would only bid another I' A. Yes. don’t know. But it’s the func- auctioneer’s Q. bids, you get any If don’t more as I get much, tion to that’s what we are it, you going take to strike it off to Why hired for. did Mr. Hatfield call us and him? hire us in the place, first because he must have thought we knew what doing we were “sold.” going say, I’m to A. good job. therefore, could do a So about say terms of sale Q. your What do said, “$10,000,” and the next bid was withdraw? right to assume, here and I get tried to more and for the custom- terms of sale are My A. nobody come in. Do you think that it does auction, not in the to an ers- that comes me good get to less money. get paid a come terms of sale if agreement. commission on brings, whatever it whoevei the— up to buys it. I am trying get money as much that, ask I’m Q. I didn’t as I can for an item. interrupt now— Q. Rouse, You said one thing, Mr. there apply of the sale do A. The terms while were explaining that. You cus- auctioneer, are for the me as an upon you might touched situation where sign I never this. sign. tomers $2,000, have started the bidding Mr. are bound say Zimmerly only up Q. went think You don’t know, floor, he called out from the terms of sale?

A. Okay, now we understand —I under- you stand what are saying. A. The customer is. Q. you And did put out or Q. cause to You don’t be think your seller is bound put out advertising for the sale?

by the terms of the sale? A. Yes. A. You mean me? Q. Now, in all years these you know Q. just You work for him. You’re not what it is to pick up a newspaper and see a seller, you auctioneer, are the aren’t big ad that says auction sale that says no

you? limit, reserve, no you know that? A. Yes. A. Yes. Q. Who are you working for? Q. All right. It reserve, means without A. You’re right we are working for the doesn’t it? people that hire us. A. Yes. Q. And that’s the seller? Q. means, And that you so can tell the A. Yes. here, jury that means that you, when you Q. Kind of hard to remember that some- once calling start out get bid, 'bids and a times, it? working isn’t You’re for the sell- you would have to see it out wouldn’t you? er, right? You would have to sell it?

A. Yes. A. I know you’re getting at— Q. Now before we there I disgressed trying you to ask and I think you Q. my question, Just answer don’t try to answered, 2,500 If maybe. you had a bid guess what I’m at? getting Now, that you would strike it off. I’m Yes, A. yes. this, me, asking you this is where you left Q. A people lot of have failed at that— was asking you your to look at terms of sale A. Yes.

there. This was an with auction advertised reserve. You have the right accept not to Q. right. All It’s without reserve and it wanted, any bid if didn’t you you? you on the block and have a bid and gets

A. It wasn’t advertised without reserve. ahead and it? you go have to sell auction, This was the date We sir. A. Yes. have another brochure we send out to ad- can, Q. you And if it’s without reserve advertising vertise. This is not material. get you until a bid and until the auc- you give This we the customer at the auction at seller, until ac- acting tioneer the auction sale. that bid can withdraw the item cept Q. sale, It’s the terms of isn’t it? can’t you? A. Yes. A. Yes. Q. up they’ll Hold it to the so know Q. And, right. All if you’ve got a man talking what we are about. That slick fold- sale that’s a got machine that er there is the terms sale? $20,000 obviously $18,000 worth or even you get. A. This is the one $12,000 $2,500 you get bid and your sale, Q. governs That’s what isn’t it? duty and your obligation to the guy that

A. you, you Yes. hired to withdraw that you. Maybe you’re aren’t' not but that’s Q. advertising but do out Okay, put do, what you should isn’t it? people’s fancy? to catch advertising A. We out cus- put get No, A. because when the man once tomers to the sale. And this isn’t one of says and he price makes bid certain things public. that we mail to the his bid. I accepted then I’ve have to sell it high is the to him. He bidder.

Q. No. Q. Just answer me— Q. Are the law is telling us May A. this— say if a man got makes a bid he’s it? Q. No, I wan’t do this? I accept got A. If he’s it. bid A. What? Q. That’s if the bid? accept Q. get I don’t want in a shouting A. Yes. with you. match there, But Q. you’re up standing you’re A. What? guy the head and you’re charge and Q. question. Just answer my on the you’re back of truck you get low, ruinous, a ridiculously sacrificial bid A. I don’t realize what— you’re working guy for this that’s driv- Q. got good You’ve lawyer a real here— ing the truck you, you and he hired don’t A. All right. Go ahead. to accept bid, that you? do Q. And he a get will chance to help You A. know I’m to have to disa- you— you ruinous, with gree bid, about sacrificial Now, A. trying when I’m to answer you publish your because an auction— making You’re question. difficult I’d like Q. you— me. You’ve got A. the bidders here at the Well, Q. just I’m trying my job. do auction. You’ve advertised. That is the That’s what piece bid. that of equipment Well, is A. Okay. I’d like to answer it. worth at that particular date. why So do Q. was, My question you’re the auction- tell me you something that was ruinous and eer and you get an offer and some guy sacrificial. That’s what it’s worth. up holds his finger or whatever he does to Q. just Now my use question. My ques- say he will offer a bid at a stated level— is, tion under items 10 and 12 of the terms A. Yes. of sale— Q. All right. You don’t sale, have a do Let me A. look at and 12 here. I you, until you, auctioneer, says that bid them, have to look at do you want me is accepted? to— A. I say, “sold,” I don’t say, “accepted,”

Q. We’re going to have a little educa- say, “sold.” tional course here. Read and 12. Read them outloud? Q. All right. And that’s you how accept is, Ten “The auctioneers have the A- byit saying, “sold.” right to consolidate or down lots or to break no, minute, Well, wait a A. Yes. if as a complete single offer lot. facility that, it goes another bid after on. there’s right Auctioneer reserves to ac- “sold,” that means it’s say, When I that knowledge or which is mere- accept any bid sold, right. may say something But ask — the preceding a fractional advance over ly further? the right, auctioneer retains with- bid. notice, lot or prior Q. to withdraw lots you question? out No. Not unless ask lots.” sale said lot or right. A. All Go ahead. sold until Q. right. you All It isn’t ac- Q. forget you’ve got Don’t Mr. the bid is it? cept your here he’s side. Reed Well, here is— A. A. Okay. Q. question. Answer that Q. interest in the out- Just as to you What did say? A. told Mr. Reed that of this lawsuit come in Max have an interest Rouse and until you, An item isn’t sold auc- Q. Northwest? Sons tioneer, bid? accept offered A. Yes. Well, of semantics— it’s a matter A.

A. gets auctioneer the idea from them. Q. And very interest is close to 100% is it not? Q. That’s Iwhat mean. No,

A. it’s 49%. A. Yes. Q. You only have 49. Mr. Wright has Q. you go Then ahead and act for the big portion? the other corporation do the actual crying of the sale? He A. has I think 26 and John Poysky A. I cry has 25. the sale. Q. And you told Mr. Reed that

Q. they’ve So all got substantial interest disagree owner, sometimes with the then? have your own idea? A. Yes. A. Yes. Q. All right. got And you’ve interest in some other Corporations? Max Rouse Q. And your recollection were there when John Poysky sug- made a A. Yes. gestion to both Frank Hanks and Koyle Q. just I have one other note here that I Hatfield that Franks puff should shill or give you will to say a chance something bidding sale if the get didn’t where up it, I about. As just understood and I’m they wanted it? telling you what I think I heard today, here time, this when particular A. this At you told Mr. your Reed on direct examina- on, may I really, I going was discussion tion that in your conversation Koyle with really I don’t know who but have said John where Hatfield looked at you some of the this, you hearing it, I’ve been said but that equipment you that he say you gave witness, sugges- but I know the know, as a his idea what these items were worth? Now, Koyle it was whether made. tion was A. Yes. it was I that John, know. assume I don’t or Q. And I you gave assume him your he did that John mentioned because John idea, auctioneer, as an as to what they buy to do not like owners We suggest' it. bring? would hurts it auction because at an stuff back we are and as far as they do auction if My A. function auctioneer —what re- or any want limit don’t we concerned does, John or Carl they give me the idea as auction, may you although serve on to what it’s really worth. I don’t have—I that it thing in it out this brought have an idea but they experts are the as far as every auction it, we feel that but say does equipment what the is worth. or reserve without limit is that we have Well, Q. now, you said here something our way we conduct is the this because your too on examination you get direct have devel- we way this is business the owner’s idea? buy People come reputation. a oped A. Yes. from us. Q. And before start the auction a little— was So, time I particular this at your have own idea? Koyle or this to —or John said when John Well, Carl, I get A. that from John or I wasn’t this suggested was whoever it up whoever had the deal. signed nervous But, being was so he it. favor of I go. it just I let time this particular So, Q. really auc- corporation it it if protect he was figured here, tion firm right? enough money. didn’t for go A. Yes. what, Mr. favor Q. weren’t You Q. gets And the corporation composite Rouse? corporate people, idea from other John have bid on as to what A. Mr. Hanks Wright, trying and Carl Of Poysky along go But I I would property equipment. should be worth? said A. I dont know that I heard Mr. Poy- with it at time sky, suggested. really because I I it was I can’t figured guess didn’t it. argue suggested just want with it recall who heard this in them about long court. It’s a time remember all because he pretty par- nervous at that those details. ticular time. Q. then other thing And said one Q. you generally But of hav- disapprove got I’ve out blocked here. You had

ing if somebody bid legitimate not sort as an practice your of a own auc- bidders? tioneer firm that start out A. Yes I would. you figure with what half the value? Q. In particular you thought case necessarily A. Not half. I make a deci- would be okay? sion may at that time. It be half it may A. I didn’t think it okay would be be, know, I don’t but I take value that but I went with along it. is considerably less than what I think the item is worth. Q. You man, head you could have stopped it? Q. And I’ve wondered one about other about, thing. You have talked go we’ll have, A. yes. could back to the air bid situation on David’s first Q. You heard Mr. Poysky tell both Hat- skidder, are talking we that one about now. fields, just Hanks, no one Hatfield and Mr. You called one as for open bids— Hatfield, one Koyle and Mr. Hanks that it maybe didn’t use open the words would be if better David and Koyle didn’t bid, said, “13,500”, but would that be bid. You hear Mr. Poysky say that? right? stand, A. I say heard him it on yes. the Yes, A. I now, would so yes. assume Q. You don’t remember said that he it Q. you How did do that? that day? say, “13,500, A. I just 13—” A. I remember, don’t but— Q. people How do know what’s for sale? Q. you But feel the way? same I 48 or what- say A. lot number Okay. problem A. The is that you well, yes. say I it’s a ever the lot number is and then — is, and then I skidder, model it whatever Q. It isn’t competitive fair bidding for open “who is say bidding say, the is—then I your buying public if your got owners have bids,” really says any- nobody for and if one or a half a dozen there people out “13,500,” I that and say, like thing then shilling the bid. That nice, isn’t is it? say certain do. I mean I do- that’s all I A. No. I exactly say I know things, don’t Q. That isn’t nice is it? is the time, sayI what the item and but lot number.

A. No. you’ve Q. you got said that but I knew Q. It’s kind of dishonest isn’t it. In a sometime, sale on this to close this item way it’s public? kind of dishonest to the 13, 5, say, you “going had to you’ve got why A. This is I object to it in the once?” beginning. Well, I to the number yes, and sold it A. suggested before. that we had Q. we leave it So can with This this. twice,” “13, 5, going say, had to Q. You shilling practice you is a don’t like? think that letting the people you it, A. I do not like no. 13, 5, you? bid at weren’t you had Q. But I happened that mean day, no is true. A. This it, it didn’t happen, you you but suggested said, Q. you then to number sir, And “Sold it, didn’t do no but you Poy- heard Mr. $13,500?” 827 for sky suggest it be done? Q. Doesn’t it say right there, isn’t the A. That’s true. word reserve right in 10 and 12? Yes,

A. the word reserve is in there but think are misconstruing it. Q. Rouse, Mr. your I thank time. I just have one question to sure make that I Q. be, I might but I don’t think so. understand right. We are in agree- this, Let’s say the auctioneer only is work- ment your obligation tois the man ing seller, for the owner, isn’t he? hires and that’s the seller? A. Yes. A. Uh-huh. Q. He doesn’t have any rights in Q. At the gather same time I that you world other than his also, gives him, are a contract have, man that feels that you do right? an public, obligation buying pub-

lic? A. law, If that’s the yes. obligation A. You have an to everybody, Q. Okay. And the contract creates the But really. your obligation get tois employment, it creates the relationship. most money end, for it that’s what And reserves, when the auctioneer this item you’re for, hired and if to put want there, 10 and 12 thing on reserves, when he obligation, obligation the first is to the reserving he’s for the seller right in the owner, is to the public. second auctioneer as the agent seller’s to with- Q. Somewhere in there there is an obli- draw, isn’t he? gation to the auctioneer? A. I do not know. I do not know the A. I don’t think there obligation law. You’ll have tell me. say that, You to the auctioneer. If he do a good doesn’t I don’t know. job you shouldn’t hire him. That’s what he is there to do. Q. You don’t know the auction law

Q. analysis In the final whether item then? should sell or shouldn’t sell at an auction really A. don’t know how to answer reserve, with Poysky Mr. said and think that. said, you think that lies with— decision Q. right. argue All I’m not A, I never really an auction with you. that with so I reserve don’t know. the I argue you, just A. I can’t law with really don’t know. Q. Now, Rouse, I Mr. often confused get Q. You don’t know the auction law? thought and I that looked at that a few argue A. do not how I know to ago it minutes and read and said this the me point telling of law that are the auction terms are with reserve? moment, I the I don’t. If knew the really think you A. I said that. I said we have you. answer I would tell never conducted an auction with reserve. Q. in attorney You have access to an Q. I don’t care how conduct it I’m not? Beverly Hills do about talking printed the terms out handed there? No, attorney my Beverly A. isn’t from Hills. printed say A. The terms doesn’t with

reserve. Q. Los Angeles? Or

Q. say You don’t 10 and 12 think that? A. Yes. No, I think say A. don’t it does with Q. Mr. Labowe? right. says you reserve. It have a It’s a A. Yes. thing different to advertise with reserve to sign Q. the out from him public they right when to have to You’ve never found just talking It’s we are about? reserve it. a difference. what

931 just assume that’s auction way should be. here says I he terms and And he that we should up A. think made have it on. I never that by conditions here. knew law we should it on to conduct an Q. Pardon? auction just sale. I assumed that that’s might up A. He have made terms And, an auction was. father felt my and conditions. that way too if you put because it on there Q. might up the auc- And he have made you now put public’s mind that there itself, too, mightn’t tion agreement he? are thing such a as a limit and reserve No, attorney A. a different made that auction. is why put This we don’t on. up We many years ago. years. haven’t for I don’t know how many brochures over years that we Q. up So Mr. Labowe made terms have had but there are none them. and conditions? of, A. really. might don’t I said he BAKES, Justice, dissenting: don’t I think composite know. are many and condi- probably of auction terms I dissent that portion from the majori tions the years that have evolved over ty opinion which affirms the award of puni then him go through we had check it and tive damages against the defendant Palos with it. Verdes, but nevertheless gratuitously, and dictum, by obiter throws out the rules relat Q. can a happy So we leave it on note ing punitive damages which were estab between each other whether it is or isn’t lished in Cox v. Stolworthy, 683, 94 Idaho with say, you reserve (1972), P.2d 682 law, question think that but which have is a as far as been consistently by followed Court you and when this until the auctioneer are concerned today. See, e.g., Yacht Club you’re down there at Lake Sales & Ser Hayden holding vice, Inc. v. First Natl. Bank auction it’s without reserve? of North Ida ho, 852, 101 Idaho (1980); P.2d 464 Lin A. Yes. scott v. Co., Rainier Natl. Life Ins. Q. the way answering? That’s you’re Idaho 606 P.2d 958 (1980); Hatfield v. A. Yes. Max Rouse Northwest, & Sons 100 Idaho (1980); 606 P.2d 944 Thompson v. Dal ton, 95 Idaho (1974); P.2d 240 Jol REDIRECT EXAMINATION OF ley Co., v. Puregro 496 P.2d HAROLD ROUSE 939 (1972). say gratuitously because the rule announced today Court just A. When we send out what he was with regard overruling know, Cox v. saying, you why Stolworthy, this is done. Over su pra, be, was not raised by when either years my party when father used their issues on business, appeal. This peo- he was active the auction Court has repeatedly stated that out an brochure that it will not ple put would auction consider issues not assigned as error. say would without limit or reserve. Well See Cox v. Mountain said, Vistas, Inc., one “This 714, he came to us time and isn’t 102 Idaho 639 P.2d 12 (1981); are to be without right, supposed auctions State ex rel. Berntsen, Haworth v. reserve, 539, 68 something peo- in Idaho why put (1948). limit or 200 P.2d 1007 there- ple’s minds that doesn’t exist.” So states that “Cox has

fore, majority of a connotation When the negative that’s kind unworka- In all been demonstrated be at best when see on a brochure. our 668, conduct, supposed impossible,” ble and at at auctions we worst ante surely ask in be, appellant if we the in case will doing, I don’t know now what I’m don’t, has it been petition rehearing, to the “Where do or after attor- listening we It was not know, But, this case?” I the demonstrated in ney, you don’t know. the trial because shown before the court put any that we never of our thing is It has not reserve. raised there. without limit or We issue never brochures 932 been demonstrated on appeal because the nipulative by vehicles which the review- parties did not assign that as error. In ing court can substitute its viscerally-dic-

fact, just to the contrary, appellant’s coun- tated judgment for that of the trier of sel stated at oral argument: generally fact. See Summerfield v. Prin- “I think that this Court owes it to liti- gle, 300, 65 Idaho 316 et seq., 144 P.2d gants and attorneys adopt alike to and be 214, (1943) (J. 222 et seq. Ailshie dissent- consistent on rules with respect puni- Note, ing); ‘Exemplary Damages in the tive damages. you’ve And done so— Torts,’ 517, Law of 70 Harv.L.R. 529-531 you’ve enunciated a rule —and whether (1957).” Co., v. Jolley Puregro supra, 94 agree with it or disagree with it is imma- 709, Idaho at 496 P.2d at 946. terial, me, it seems to in terms of the However, a careful reading of the quoted Now, context of question. you’re if portion from original the text opin- of the well, to ... say, this is a separate ion, context, taken in will disclose that in tort, else, and this is something and we words, using the “The difficulty with these one, should have a cubby hole for each standards,” the Court Jolley was not we’re back where we started before that referring to the standards of Cox v. Stol- started; line of decisions I think it would worthy, infers, majority but to the Court; be error of this I think it would be standards which prior existed to Cox v. state, a disservice to this to the people, Stolworthy. The in Jolley Puregro Court v. and to attorneys. And I say that upheld approved the Cox standards. know, sincerely, and you you, each one of Additionally, the majority

that I’m appears on the other side 99.9% of the rule, time. But we misread the facts in Jolley Puregro. need a rational v. Thus, Now, think you’ve majority Court, set one states that up. I don’t always agree with it —I say Jolley, “attempted can’t that. to fit various factual understand, But it’s something situations and it’s into one of the three delineated something I can apply, something and it’s categories or, ... often without success if law, I can tell my clients is the successful, and it’s as achieved in an unconvincing good as I can devise. I don’t know manner.” Further, Ante at ma- 667. how can better it. And I say states, jority “Although the case [Jolley v. ” sincerely.... (Emphasis added.) Puregro] clearly private involved a busi- we, dispute, ness for reasons which the un- Contrary assertion, to the majority’s convenience, kind or critical might record in this case call held “demonstrates” that the Cox the existence of an standards are element of consumer something can be understood, and fraud and classified the matter something ap- that can be under cate- plied. There nothing in the record of this one gory of the Cox scheme.” Ante at case to support majority’s However, statement 667. reading a careful of the that the Cox standards have “been demon- Jolley Puregro, facts in v. supra, will dis- strated to be at best unworkable and at close that not only plaintiff Jolley’s had worst impossible.” Ante at property misappropriated by 668. been the de- noted, Puregro, fendant but as the Court only attempt

The majority to “Apparently Puregro equip- also took the “demonstrate” the Cox standards to be un- farmers, ment of other at some of least workable results reading from erroneous whom reclaimed their from Pu- equipment Jolley decision of this Court in Co., 702, Puregro regro at their Mountain Home business lo- P.2d 939 (1972). cation.” at majority quotes part Supra from Idaho n. Idaho 496 P.2d 939 as follows: P.2d at n. 1. The Court found evidence “knowing of a ‘business practice’ taking difficulty “The with these standards is and, im- persons’ property other when not they provide objective no definable reclaimed,

guidelines mediately selling for the same and determining what is a rea- award; 711, 496 exemplary damages retaining Supra sonable funds.” appear merely standards to serve as ma- P.2d at 946. The Court then noted:

933 brings Co., “That this case enough 235, close to the RR. 62 Idaho 109 (1941) P.2d 874 Boise Dodge Dodge case Boise (if injury temporary, is value of premises [where turned back the odometers oí several original condition or diminution in market cars, used thereby perpetrating a fraud value recovery is limit of if smaller than purchasers several of those automo- restoration). cost of If the property is to- justify an award of additional biles] tally destroyed, the measure of damages is exemplary damages over and above those the value property of the at the time and additional damages allowable under the place of its destruction. Skaggs Drug Cen- general i.e., rule in Stolworthy, Cox v. ters, Falls, Inc. v. City 1, of Idaho 90 Idaho fees, reasonable attorney fees, witness 407 (1965). hand, P.2d 695 On the other if and other non-compensable litigation property partially is destroyed, (only costs including lost time and inconven- damages measure of is the difference be- ience.” Id. tween the reasonable market value of the Thus, the majority’s statement that “Cox property place at the of injury, immediately has been demonstrated to be at best un- before immediately or, after injury if workable and at impossible” worst finds no less, such sum be the reasonable cost of support in case, the record of this or in our repairs to restore the property previ- to its previous cases, particularly v. Jolley Pureg- Id; ous condition. see also C.C. Anderson ro. Stores Co. v. Boise Water Corp., 84 Idaho premise The other upon majori- which the 355, 372 (1962); P.2d 752 Thompson v. First ty relies in overruling Stolworthy Cox v. is Idaho, N.A., Security 259, Bank of 82 Idaho that the definitive standards set out in Cox (1960). 352 P.2d 243 Similarly', specific are “inconsistent with law as P -elates [the] rules regarding the measure of damages to ” to other damages .... Ante at 667. be for crop awarded loss have been devel- The majority again states that theme at oped. As stated in Eliopulos v. Kondo states, page 668 when it judge “A or jury Farms, Inc., 915, 919, 102 Idaho 643 P.2d should not hampered be strictly with con- 1085, (Ida.App.1982), “The measure of strued schemes or rules which inappropri- damages for crop loss is the difference be- ately require the forcing of many-faceted crops raised, tween the value of actually fact patterns into neat pigeonholes or com- crops the value of that would have been partments. Such deference to the trial raised under normal conditions.” Casey See court is consistent with the over- appellate Dist., Nampa v. & Meridian Irr. 85 Idaho However, view of compensatory damages.” 299, (1963) (less 379 P.2d 409 the cost of a review of the law as it compen- relates to maturing, harvesting and marketing). satory damages will disclose that the Cox v. Damages to be awarded in cases involv- Stolworthy standards are much less strict ing agreements sales are also to be deter- and give great deal more latitude to the specific guidelines. mined under In Snook factfinder than often do the rules and stan- Olinger, (1922), v. 36 Idaho 211 P. 559 relating dards to compensatory damages. this stated that damages Court to be example, For previously Court has awarded to a for a buyer seller’s failure to adopted specific formulas to be utilized contract, goods, deliver in breach of is the trial courts in computing an award of com- difference between the agreed purchase pensatory damages. The area of the law price goods price and the market involving injury to with property replete goods vicinity similar in the at the time instance, such formulas. For the measure should have been made. Bow- delivery See of damages temporary injury proper- Adams, 217, 261 P. 679 man v. 45 Idaho ty generally is the diminution in the rental (1927) (seller’s remedy). Upon buyer’s value of the property or the amount neces- acceptance, a seller is entitled to refusal of sary to restore it to its former condition. goods resell the and recover the difference Simpson, Bradford v. P.2d Idaho remand, price price after between the contract appeal (1975): Ingram, P.2d 149 see resale. Hisaw v. Alesko Union Pacific received on See 934 751,

94 Idaho 497 1052 (1972); P.2d consistently successfully by Ore-Ida this Court Products, Larsen, Potato v. Inc. 83 Idaho in for more than ten favor of a years sys- 290, 362 (1961). P.2d 384 no guidelines tem which whatsoev- employs places the decision of majority er. The This Court has the fixed measure of dam damages whether to and the punitive award ages to be awarded in other types of con award entirely amount of such an within tract cases as well. In a case involving the fact, the trier of which in contract, breach of discretion of the a construction the meas under the discre- subject ure of turn is to review damages to be awarded is the market of The hoc price punitive tion of the trial court. ad completing correcting the work. 850, Hazel, See Nelson v. Idaho damage 91 433 P.2d are sure to follow will awards that (1967); 120 Boise v. City Surety inconsistency and unpredictability National result Co., 455, 165 30 (1917). Idaho 1131 P. When Furthermore, in this area of law. the the a piece defective equipment of is installed will resulting inconsistency lead to ever- and full contract is not price paid, the meas awards, appeals punitive damage more of ure of damages breach for the of contract courts a requiring appellate to make is, in addition special damages, the dif determination of whether abuse of dis- ference between the amount actually paid punitive cretion in awarding damages by the owner and the reasonable value of shown, has been ad hoc another determina- the equipment received. See Rino v. State tion. Co., wide Plumbing Heating & 74 Idaho “general The so-called advisory guide- 374, 262 (1953). P.2d 1003 lines” which majority says now will be Finally, involving cases the transfer of applicable punitive damage awards are real property the of damages measure merely those prior rules that were in effect which a upon vendor is entitled buyer’s which, to our decision in Cox because of default is the difference between the con- their this uncertainty, adopt led Court to tract price and the market value of the Jolley standards enunciated therein. In premises at the time breach. of See Smith Puregro, v. Court said of supra, the those 331, v. King, 100 597 (1979) Idaho P.2d 217 pre-Cox standards: (damages usually by enhanced rental value “The with these difficulty [pre standards premises of during purchaser’s occupation); Cox v. Stolworthy] they provide Michel, 228, Anderson v. 398 P.2d objective guidelines no definable for de (1965) (unless parties otherwise termining exempla what is reasonable stipulated); Clinger, State ex rel. Robins v. award; ry damages appear the standards (1951). Idaho 238 P.2d Con- manipulative to serve merely vehicles versely, damages purchaser which a by reviewing which the court can substi land is the seller’s upon entitled breach of judgment tute its for viscerally-dictated contract is the between the difference actu- that of the trier of fact.” 94 Idaho at al value of the received property and the (citations omitted). 496 P.2d at 946 purchase price. Holmquist, 47 See Smith (1929). Idaho 277 P. 574 by Application of the “rules” advocated foregoing setting list of cases merely result in majority will one level damages standards for the measurement being by followed discretionary review this Court in review- previously applied by another, reviewing with court substi- each ing compensatory damages awards of is not tuting judgment previous its exhaustive. It illustrates that even merely will procedure reviewer. This not be unlike compensatory damages awards of must procedures by criticized Chief Justice comply with strict standards set v. Board of Cooper Donaldson Comm’rs Court and are within the unlimited 407, 411, of Ada Idaho 614 P.2d County, 101 discretion of the factfinder. will result in (1980), “govern- government by ment than by men rather Cox, majority In overruling abandons has opinion, law.” With the Court punitive today’s standards utilized damages abandoned a bring decade’s effort to some

rationality punitive damages, to the law of Cook,

Clyde pro se. McLaughlin, Michael County Elmore Home, Atty., plaintiff- Pros. Mountain respondent. P.2d 699 OLDS, Acting

Carol in her official PER CURIAM: capacity County as Treasurer for the Defendant appellant appealed from a de- Elmore, Plaintiff-Respondent, cision of the district court which dismissed judgment his from a default ren- appeal Clyde COOK, Defendant-Appellant. magistrate dered in the court on June Appellant’s appeal 1982. was filed on Au- No. 14871. 12,1982, gust sixty-two days some after the Supreme Court of Idaho. entry judgment magis- of the default in the trate court. The district court dismissed

June 1983. appeal by order filed on November se,

1982. Appellant, proceeding pro filed a notice of to this appeal Court on December 3, 1982, appealing from the order dis- missal entered the district court on No- vember 1982.

Respondent has moved to dismiss the appeal, asserting that since the appeal judgment from the magis entered in the trate court to the district court was not filed, timely this appeal should be dismissed. However, appellant’s appeal to this Court from the order of the district court dismiss ing his from the appeal magistrate court filed, timely and therefore the appeal dismissal, is subject this Court respondent’s motion to dismiss is denied.

Nevertheless, ap from the record it pears timely appeal uncontroverted no judgment was taken from the entered in 11, 1982, the magistrate court on June the district court’s order filed on November 8, 1982, dismissing appeal from Therefore, magistrate division was correct. According there is no merit to this appeal. ly, judgment of the district court I.A.R. 44. summarily affirmed. attorney

Affirmed. fees to Costs respondent.

Case Details

Case Name: Cheney v. Palos Verdes Investment Corp.

Court Name: Idaho Supreme Court

Date Published: Jun 15, 1983

Citation: 665 P.2d 661

Docket Number: 14003

Court Abbreviation: Idaho