*1 plain- car sentation was new. The knowledge
tiff’s own evidence indicates part plaintiff car that the was sus-
not new. Plaintiff’s evidence did not convincing
tain her clear and burden of
proof of all the elements of fraud. involuntary
granting dismissal was proper
therefore and is affirmed. attempted the time also
Plaintiff a motion
of the motion to make dismiss proof. pleadings conform the Apparently
This motion was denied. implied
requested amendment was to be
warranty. aforesaid, there was As
showing attempted plaintiff was, repaired damage, if there
have warranty though she knew
under the even damage alleged during
warranty even effect. Therefore the invol amendment had allowed been
untary would dismissal nevertheless proper.
been of dismissal affirmed. respondent.
Costs McFADDEN,
McQUADE, J.,C. BAKES, JJ., concur.
DONALDSON al., Derryl
Rodney Plaintiffs- DAWSON et Appellants, High- Department of
Ronald T. OLSON and Idaho, ways, State of Defend- ants-Respondents, AUTOMOBILE
STATE FARM MUTUAL COMPANY, Inter- INSURANCE venor-Respondent.
No.
Supreme of Idaho. 8, 1972. March
Rehearing May Denied
Eberle, Berlin, Kading, Turnbow & Gil- Boise, lespie, plaintiffs-appellants. for Elam, Burke, Jeppesen, Boyd, Evans & Boise, respondent for Farm Mutual' State Automobile Insurance Co. Power, Boise, respondent
Kent B. for Ronald T. Olson. Park, Atty. Gen., Anthony and Faber
W. Tway, Boise, respondent F. Dept, Highways.
McQUADE, Chief Justice. death, wrongful This is an action accident which arose from traffic January All evening roads edge of dry at the eastern were bare and Caldwell, Highway 80 where Interstate passes overpass bearing traffic an beneath pickup driven A truck on Franklin Road. Dawson, by her accompanied by Hazel G. Dawson, turned husband, C. Nathaniel stopped behind from the Interstate ramp exit parked on the truck semi-trailer Franklin with leading to an pickup Road. Behind their truck another westbound lane of Franklin Road. The approached. car the semi-trailer were pickup When Dawsons killed when their move, began again truck ve- was occupants three struck broadside. Two proceeded up the Mercury hides the remainder of died in the fire which en- *3 ramp gulfed driver, Only toward the that car. its Ronald T. Olson, motorist, an uninsured survived the time, At the mile east on same one Subsequent accident. alterations Road, Franklin a was westbound driver overpass provided interchange and the oc- approached by Mercury a the from disagreement casion for concerning some passed speed rear apparent at an speed the limit in at the force the time of ninety Mercury per pro- miles hour. The engineer accident. An who examined the point ceeded toward the where Franklin Department Highways’ records testified passes over Interstate 80. that overpass those records showed the posted intersection, per at At the 35 miles hour. of the the semi-trailer One truck Dawsons’ stopped again compliance stop signs in sons said he saw the the with a sign. night twenty photograph of the A There was a feet accident. taken line beyond intersection, after edge at the week the accident showed one of the sign facing signal flashing ramp a traffic How- red eastbound traffic. ever, traversing traffic and amber Olson’s mother testified that she to vehicles slowed, day following Franklin drove Franklin the the Road. As he the truck Road accident, signs. vantage point from and saw no such in the cab She see, they beyond claimed were installed later. Absent overpass could the crest the left, per signs, applicable the lights Mercury ap- to his 35 miles hour the the of the speed per limit been 50 miles proaching on Franklin Road. he would have When hour. entered the intersection and turned left on Road, vehicles, trailing
Franklin the which September the Dawson On him, stopped began had for- behind ease brought wrongful heirs death action ward. against Farm Mutual Auto- Olson. State Company petitioned mobile Insurance The driver of the last vehicle saw the because, insurer intervene as the Dawsons’ pickup proceed slowly ahead of him toward policy containing under motor- uninsured the stopping intersection without coverage, ist it had a interest vital stop sign line. He noticed that the liability, any. determination of Olson’s guard along steel rails Road re- Franklin parties stipulated that Farm The State light Mercury’s oncoming flected from the intervene, petitition and the was could headlights, while that car was still hidden trial, granted. was set for After the case overpass. behind the crest opinion in issued its Smith driver of semi-trailer truck had com- State,1 sovereign abolishing prospectively pleted his turn on Franklin Road and was on immunity actions based as a defense to crossing overpass. At political or a tortious conduct of State Mercury passed opposite direction at capaci- proprietary acting in a subdivision per an estimated of 55 to 60 miles permitted ty. subsequently were Plaintiffs mirror, Glancing hour. into his rear-view adding the De- complaint, to amend their pickup roll truck driver observed the Idaho, as partment Highways, State of intersection, into the and witnessed a flam- negli- defendant, alleging party ing collision which took four lives. roadways overpass and gent design of the impairment visibili- police investigation dangerous established that created a acci- the fatal ty proximately caused impact, preceded skid which began on trial Octo- Mercury, marks of occurred in the dent. when 5, 1970, granted summary overruling all the court times ber decisions “discover” Department, ap- “true” law and take favor of retroactive effect ruling parently grounds prior because decisions lose their force.3 Utilizing yet power prospective Smith had become law.2 establish policy, upheld by Cardozo Great Justice Motions defendant and the inter- Ry. Northern Co. v. Refin Sunburst Oil & involuntary venor for under I.R. dismissal Co.,4 ing applied we nevertheless our hold C.P. Rule 41(b) or directed under ing litigants then at bar in order to plaintiffs’ 50(a), at the close of case and against balance the reliance interest of the evidence, at the close of all were denied. State in sovereign immunity defense5 *4 jury plaintiffs, The returned a plaintiffs’ legitimate in com interest pensation awarding $75,000. undertaking in- after the effort and them Defendant and expense bringing of us.6 issue before tervenor moved for n.o.v. or new Appellants present argue that plaintiffs’ case 50(b)-, trial under Rule while their pending action was compel to below when counsel to the intervenor moved decided, similarly Smith 27, 1970, situating them pay attorney fees. November On plaintiffs requiring Smith granted judgment de- the court n.o.v. and they be accorded the same treatment. attorney fees. nied the motion believe, we with Chief Justice gave prospective Illinois, When person Schaefer of that “the who- State, holding in effect we successfully challenges existing legal Smith doc departed be, been, from the traditional that at view regarded trine can and has holding recognize many 2. The Smith was framed take to 6.We instances sixty days adjournment may unnecessary effect after of it to reward the suc Forty- Regular litigant the First Session of the jnovide cessful to an incentive Legislature legisla- appeal existing application First unless to of an but sovereign immunity tive action on were discredited doctrine. Even if an over 20, ruling entirely prospective taken in that session. March On decision were 1971, effect, the Idaho Tort Claims Act became in remain, however, “[s]uffieient incentive would seq. litigants law. 6-901 et to those who- question conduct a business in which the g. See, Blackstone, e. Commentaries on likely again to be decided is to arise England, pp. I, 83, of Vol. Laws in the And a future. chance for a fa (Jones ed., 1915). appeal vorable decision on would exist 358, 145, 4. 287 U.S. 53 L.Ed. possibility S.Ct. 77 360 wherever vincing there was of con language Cardozo’s removed appellate facts court that from constitutional concern the issues re- particular pro in the case did not merit lating prospective application to of over- spective application of the decision.” ruling subsequent- decisions. Those issues Note, Prospective Operation of Decisions ly “judicial questions poli- have become Holding of Statutes Unconstitutional cy judicial power.” rather than of See Overruling Decisions, Prior 60 Harv.L. generally, Annotation, Prospective or Ret- 437, area, Rev. In the torts 440 Application Overruling troactive Deci- injured party the likelihood that an will sion, 1371, 10 A.L.R.3d costly litigation undertake extended and hope compensation, simply without to Department Highways 5. Failure of the doctrine, slight establish a new unless liability procure insurance until Smith injury recurring nature. Smith was decided evidenced its actual reliance single incident, arose from a an automo degrees vigor on the with doctrine. bridge bile accident on a maintained investigated which accidents were or of Only Department Highways. pre the care with which evidence was applying plaintiffs the decision to the may served also have reliance reflected legitimate bar could their interest in com immunity Spanel to suit. Cf. pensation, trying appealing after Mounts View School Dist. No. issue, have been satisfied. (Minn. Minn. 118 N.W.2d 1962). tributory apart.”7 negligence proxi himself In a unless it was having thereby set context, injury.12 Da mate cause of the Professor different somewhat noted that: has vid Currie appears that Mrs. Dawson was may bit intellec- argument be a “[This] negligent per failing inse as re may the best untidy, but it offer tually by statute,13 quired and it be contended paralysis on judicial alternative to negligent per that she was also se in vio hand, frustration and wholesome lating closely statutory duty related other.”8 expectations on the
legitimate
right
way.14 Appellants
admit
negligence
failing
stop,
argue
prospec
overruling
practice of
it
proximately
did not
cause the accident.
then at bar
litigants
tively except as to the
They
yield,
also
admit failure
immunity
sovereign
adopted
has been
cause,
necessarily
proximate
was a
but of
and Wisc
Illinois
cases
the courts of
explanation
fer an
it
show that was
in this
that course
onsin.10 We follow
applicable
a violation of the
Be
statute.
insensitivity
plain
appeal, not out
reviewing
arguments
fore
ac
these
we
loss,
must
tragic
but because a line
tiffs’
knowledge at the
that we are enter
outset
body
somewhere,
public
drawn
*5
may
ing
province
jury and
of the
ex
legitimately relied on the
here involved
uphold
unless the facts
n.o.v.
special
Absent
isting
the law.
state of
undisputed
only
reason
permit
are
plain
may
to a
extend
consideration which
in
able conclusion
reached after all
to be
in
reform
successful
pioneers a
tiff who
appellants.15
ferences
are drawn
favor
pro
be
interest will
law,
reliance
tected.
Daw
Appellants argue that Mrs.
ability
Road
son’s
to see down Franklin
contributory
general
issue
by
design of
was limited to 475 feet
more nar
turns on
in this case
negligence
approaching
overpass,
while Olson was
per
negligence
se
questions
row
velocity
to 60
at a
somewhere between 55
motor vehicle
a
proximate cause. When
second)
per
per
miles
hour
to 88 feet
(81
specified cir
under
provides that
statute
sec
per
(132
per
feet
hour
90 miles
or shall not
acts shall
certain
cumstances
the re
Though
seen
ond).
she
have
motorists,
done,
protection of other
guard rail
headlights
flections of
on
from which
conduct
it fixes a standard of
away, she
ings
farther
when Olson was
dis
per
deviate without
negligence
gauged
se to
from them
it is
could not have
appel
facts
speed.
or
From these
tance
violation
justifiable excuse.11
conclude, first,
had Mrs.
that even
lants
to con
recovery due
not bar
a statute does
See,
Toetly,
Rosenberg
g.,
93
11.
v.
Schaefer,
e.
of “Sunbursts”:
7.
The Control
Riley
;
(1969)
135,
Overruling,
Prospective
Techniques
P.2d 779
Idaho
456
831,
Larson,
775
Benjamin
432 P.2d
v.
91 Idaho
Lec-
N.
24th Annual
Cardozo
Perryman,
(1967) ;
Idaho
reprinted
Bale
85
ture, 1967,
42
N.Y.U.L.Rev.
(1963).
435,
631,
(1967).
380
501
638
198,
193,
Carlson,
270
12. Bell v.
75 Idaho
Currie,
in the
Divorce
Con-
8.
Suitcase
(1954).
26,
Laws,
P.2d 420
62
flicts of
34 U.Chi.L.Rev.
(1966).
(d).
13. See I.C.
49-751
§
Community Unit
Molitor v. Kaneland
9.
See
§
49-729.
I.C.
302,
11,
89
Ill.2d
163 N.B.2d
Dist. No.
18
(1959),
denied,
968, 80
362 U.S.
cert.
g.,
Bollinger,
15. E.
90
Loosli v.
(1959).
955,
terms of hazard: attorney ment of their fees the interve- proceed directed to “Except when nor, Mutual, State Farm under I.C. 41- signal, police officer traffic control 1839.17 That statute has been construed approaching of a every driver apply to claims under uninsured motorist sign indicated scope coverage,18 application its re- required by stop as section shall cently was limited Carter v. Cascade In- having stopped and after shall surance In Co.19 Carter this Court estab- way has right of vehicle which lished general, two rules: In *6 another the entered intersection from amount “justly is due” from insurer the roadway approaching is so or which until substantially facts indicative of the on said as constitute closely roadway to liability uninsured motorist’s are shown the hazard, an immediate but said insurer, or, facts, the in absence such of yielded may the proceed so and having until liability the uninsured is motorist’s approaching of other vehicles drivers all judicially admitted or declared. Where right the of intersection shall the the attorney insurer sued is for fees in- way proceeding.” the vehicle so separate curred in a successful action (Emphasis supplied). against motorist, the uninsured the insurer obligated pay only men evaluate these ar Reasonable attorney the fees guments differently. problems if pay The factual its initial refusal to the claim were speed and created Olson’s excessive unreasonable. range
Mrs. do Dawson’s limited of vision facilely single, present case, appears lend themselves In the it from of the reasonable conclusion. The conflict first rule no amount could provides, any brought 16. “tliat in action thereafter whenever shall support against any is substantial in in there evidence to the insurer court this recovery the same a verdict shall not be set aside.” under the terms the state for of contract, pay policy, or certificate such “Any issuing any adjudge policy, 17. insurer as the court shall certifi- amount further guar- attorney’s insurance, surety, of cate or contract fees in such reasonable as ac- indemnity anty (Emphasis supplied). nature of kind or tion.” whatsoever, period which shall for a fail Exchange, thirty (30) days proof Halliday has after loss Farmers Insurance provided policy, been furnished as in 8 per- contract, pay certificate or justly due son entitled thereto the amount contract, policy, 438 P.2d under such certificate or the uncontroverted facts this case “justly due” unless or until district and a applicable appel- the judgment misconstruction of law. court otherwise enters is pend- trial lants. The motion new undisputed. clear Certain facts are and attorney ing, fees and no allowance stopped pick-up her Mrs. Dawson behind compensation may prior made to final large semi-trailer truck which had compel, judgment. The statute does sign. stopped The semi-trailer require, pay- “further” nor does Carter sixty-five truck was than feet more appellants’ ac- attorney ment of fees placed length, which the Daw- would requires no tion fails. The second rule son vehicle some additional distance back gov- it further discussion because does not stop sign. from the The driver of the single against insurer and ern a action roadway truck-trailer observed uninsured motorist. clear, left, proceeded en- it and saw was summary judgment granting The order ter and make turn affirmed; granting the order below but left, prior to clearing the intersection Cause is re- n.o.v. is vacated. approached. time the Olson proceedings manded for further consistent Contemporaneously movement of with the opinion. respondent De- with this Costs to truck-trailer, commenced Mrs. Dawson partment appellants. Highways large to follow vehicle. The driver stopped
the car which had behind Daw- son did pick-up testified that at SHEPARD, JJ., DONALDSON brakes, apply Mrs. Dawson her concur. pick-up’s would have shown from lights,
brake that the Dawson vehicle just high- proceeded through out onto the McFADDEN, Justice, joined SCOG- way. While this movement of truck- part GIN, Judge (concurring District progress, trailer was in with the Dawson dissenting part). pick-up Mercury following, the Olson se- majority portion concur I westerly. Appellants dan proceeding summary judg- opinion which sustains the crown claimed that reason of the defendant favor of the granted ment view, overpass, and to her obstructions *7 of Idaho. Highways, Department of State Dawson could not have seen this ve- Mrs. portion of I from that dissent approached. hicle as it That have or- vacating court’s opinion the district the during stages of early been true the Mrs. notwithstanding the granting judgment der the intersec- Dawson’s movement towards verdict. tion, in- approached the this closer she tersection, vehicle the closer the Olson that recognizes majority opinion The point impact. By the came to of the in fail- per se negligent Dawson was Mrs. pick-up of truck that the front end the required stop-sign line as ing to at the necessity the stop-line, of crossed over the tacitly, at statute, and by 49-751(d), I.C. § within the Olson vehicle had to be well least, in violation recognizes was also she range of Mrs. view. Dawson’s major- in the 49-729(b), of set forth I.C. § failing yield. ity opinion, supra, ac- the vehicles after the Examination of lip giving majority opinion, while the struck cident shows that Olson vehicle is statutory requirements, pick-up service left the Dawson behind the front appellants’ wheel, con- reflects that the ac- accept and the record able to the somehow happened proxi- the bound lane stop did cident west that tention failure simply that Mrs. that failure traffic. This means and mately cause the accident relatively only negligence. proceeded had Dawson yield under the facts was length of contrary than this short distance —less half my It conclusion is “stop it ment of sign” “right way” vehicle into the intersection —before her by hit For this ac- statutes such the Olson vehicle. as I.C. 49-751 and was 49-729. § § necessity very the The happened, purpose cident to have statutes is to on, provide vehicle, lights in the progress was highway. with its safe on a Olson is, the time That vicinity person at a through highway near it. The driv- shall right into Mrs. Dawson drove out to assume that others acci- entering he saw the highway only of the truck stated that do so er when the mirror, clear, happen roadway and, in his rear-view dent it is not clear that they pass his will oncoming that he observed the wait until Olson traffic is straightened through out—-which just as he truck In Stucki v. Loveland, testimony according to his was west of
overpass
appellants’
from the
(1969),
itself —about 150 feet
occupied
decedent
a car
places the
vehicle which
stop sign
intersection. This
Olson
ran a
by
and was hit
re-
spondent’s
position
such a
Dawson had
appellants
that Mrs.
alleged
truck. The
duty
exceeding
absolute
ve-
Olson
truck was
the safe and rea-
closely
which,
so
approaching
speed
appellants contended,
hicle “which
sonable
[was]
roadway
question
an imme-
raised
on said
as to constitute
jury
of fact for a
as to
In other who
49-729(b).
negligent.
diate hazard.”
was
opinion
This Court’s
words,
under the facts
indeed
as a matter of law
stated
time of the ac-
“[a]t
case,
this
at the time the Dawson vehi-
cident the roads in the area were snow
line,
point
cle was at the
Nevertheless,
covered and slick.”
the dis-
constitute an
Olson car was so close
trict court’s
granting summary
order
judg-
immediate
cannot be said that ment
respondent
hazard.
It
in favor of the
truck
any
person
unanimously
reasonable
would have failed to
was
affirmed
this
place.
see this vehicle
time and
reasoning
Court. The
of this Court is in-
headlights
car
of the Olson
were on
structive.
nothing
the air
There is
clear.
“Appellants additionally contend that
bring
the record to
Mrs. Dawson within
traveling
even if
only
Hahn was
exceptions
one of the
of Bale v. Per
per
miles
hour
existing
under the
road
ryman,
P.2d 501 (1963).1
conditions the reasonableness of such
is difficult
presented
to understand how
an
issue
fact for res-
concludes there are substantial facts
olution
jury
pro-
reason of the
support
jury
this case
might
visions of I.C.
There
49-701.
purpose
when
considers the
of enact-
more merit to
contention
if the in-
My
generally
examination
record
shows that
in four
classified
cate-
jury
gories
Anything
was not
accordance
instructed
:
that would make
*8
Perryman,
compliance
impossible;
with Bale v.
a ease which sets
statute
with the
(2) Anything
out
which a
four excuses
driver
over
mandatory
duty
statutory
places
who violates a
his
has no control which
ear
may
contributory neg-
charge
position
statute;
avoid the
a
violative
ligence.
(3)
emergency
The rule
that case reads as
An
not of the driver’s
making by
follows:
own
reason of which he fails
generally
obey
statute;
“It
is
held
civil
to
An excuse
injury
damages,
specifically provided
actions
where
oc-
statute
[cita-
proximate
442-443,
curs as a
result of a
tion].”
viola-
tersection
speed
Cadil
contend that Olson’s
on which the
an
the road
essential
one where
by a
factor which
traveling
would obviate the
was controlled
failure to
lac was
stop;
is,
they
places
argue
sign.
(d)
if
'stop’
through
ap
going
had
duty upon
vehicle
been
the driver of
vehicle
reason
stop
able and
stop sign
before
safe
there
proaching
to
would have been
clearly
no
crash.
entering
controlled
Court
adopted
a con
the rule that
approaching such
the driver of the car
vehicles
Other
rely
failing
stop
explain
to
had
justify
entitled
to
trolled intersection are
mandatory
stop
justification
of that
provisions
were
upon the
failure
565,
then,
law,
Thomas,
offered
as matter of
“the
statute. Foster v.
Bates,
;
proximate cause of the
Salcido v.
accident could
(1963)
anything
(Tex.Civ.App.1968);
attributed to
other than the
assume drivers will violate Thomas, statutory duty.
tory Foster v. Hickox, Coughran 82
supra; v. P.2d 724 348 a direct there was
“In this case where mandatory provisions of the violation 105 496 P.2d justifi explanation or and no the statute violation, OF IDAHO JURISDICTION NORTH for such cation offered CHURCHES, INC., EPISCOPAL could of the accident proximate cause Plaintiff-Respondent, than anything other attributed to not be v. Loveland of the driver the failure through COUNTY, by its KOOTENAI sign before Sub- Commissioners, Political Board of See through the intersection. proceeding Idaho, Defendant- State of division of the 44 Sparks, F.2d Corp. Greyhound Appellant. Brooks 1960); Davis (5th Cir. No. 10466. Co., F.Supp. (D.C.Del. Transp. Supreme of Idaho. Cusick, 209 Md. ; Co. v. 1960) Sun Cab April 24, 1972. *9 Annot. A. (1956); A.2d 188 May 8, Rehearing Denied 47-48, pp. 450-461. 180 at
L.R.3d §§ no ac that there were conclusion is our Hahn respondent part
tions on the proximate aas considered
that could be accident.”
cause at 392.