*1 282 it legal
sеeks the writ and unless is clear the plaintfif has not act; duty to and will lie met her burden of showing both that she of officer coerce or legal right to control discretion the dis- has to a writ of mandate and trict court. Board of Commissioners of legal duty the district court had a to County Mayhew, Shoshone v. Idaho enter judgment. 5 McQuade, Freeman v. su 572, Woods, 411; Connolly 51 рra. P. 13 v. 591, Paxton, 573; Idaho 92 Olden P. v. The alternative writ of mandate im- 597, 40; 27 Idaho 150 P. Blackwell providently granted hereby and it 632, Lumber Co. Flynn, v. Idaho 27 150 quashed. Costs to defendant. 42; Monastery P. Saint Michael’s v. Steele, 609, 30 Idaho 349; 167 P. Brooks DONALDSON, J., McQUADE, C. Edgington, 432, 514; v. 40 Idaho 233 P. BAKES, JJ., McFADDEN concur.
Logan Carter, 393, v. 49 Idaho 288 P. 424; Aker, Aker 555, v. 8 P.2d
777; Vandenberg Welker, v. 508, 1029; Spaulding, Leuhrs v.
80 Idaho (Emphasis P.2d 582.” supplied) McQuade, Freeman v. Ida-
ho (1958); P.2d approval
cited with Smylie, in: Allen v. 92 Idaho Representative Ruby DUNFORD, B. that mandamus also clear will Hillman, Deceased, Estate of Alice orders inferior issue reverse Plaintiff-Appellant, acting when courts are within courts jurisdiction. will not be their Mandamus OMAHA, UNITED OF Defendant- permitted supplant the function of Respondent. appeal or a writ of review. Radermacher No. 10933. Sutphen, P.2d Supreme Court of Idaho. position regarding prompt en- March Plaintiff’s be- patently untenable try judgment prompt en- blocked plaintiff herself cause Drainage Dis- in Felton v.
try comply by failing to
trict #1 selection of a sur- regarding orders
court’s Herein, in the de- plaintiff, face of
veyor. survey by protest, obtained
fendant’s the court to Rudd then asked Furthermore, survey.
the results of that comply survey
Rudd’s failed explicit directions. case the district
In the instant sound discre acting
judge was within survey of the iands he ordered
tion when preparing him question assist fact and conclusions findings of
judgment, A writ 53(a), Rule I.R.C.P.
of law. control discretion lie to
mandate will not acting juris their within
ary acts of courts supra. McQuade,
diction. Freeman v. *2 Pocatello, McDevitt, for de-
McDevitt & fendant-respondent.
Reversed and remanded with direc-
tions. McQUADE, Justice. brought to re-
Alice Hillman an action cover on an individual life ¿Oil- husband, her Robert K. judgment, аfter man. From an adverse court, appealed. trial to the Alice Hillman During appeal, pendency of the Alice Dunford, died, repre- Ruby Hillman Hillman, has sentative of the estate of Alice appellant. been substituted as practicing at- Robert K. Hillman was a Sep- Anthony, torney in St. Idaho. conferred with tember agents representing two salеs United about life and Mutual of Omaha Omaha insur- health and accident insurance and applied for an this date Hillman ance. On policy in the face individual life insurance application $10,000. This amount of policy ap- and is the to United of Omaha other insur- dispute here. Two here, applications, in issue were September signed by Hillman on alsо company for A check to the insurance at the by Hillman was made out $65.00 applications were time the three insurance repre- $65.00, the total of made. Of monthly premium payments of sented two month question, and the remainder here At applications. for the other two made, Hill- applications were the time the old, sign- man, years forty-оne then authority to giving his bank ed documents they pay should become as due. pre-payment of the
In return for the premiums, “conditional Hillman received a agents. This premium receipt” from the receipt provided that the insurance would the date of be effective on any required medical examina- the date of tion, subject requirements on the receipt. verse side of the Two these Bloem, Albaugh, Pike, requirements finding by Smith & were a the com- Falls, for plaintiff-appellant. pany proposed insured was finding its rules for the “condi- under
surable exactly tional receipt” prevented an insur- plied for and issuance sixty days arising, from the ance contract the court’s within merely decision that the coun- date of binding ter-offer as a contract physical ex- complied *3 acceptance, insurance without and the in requirement was notified amination attorney court’s failure to award fees premium plan that service the bank October pellant. question principal to be de- The 2, 1967, acceptable. the November was On by appeal cided the life of this is whether which the Omaha office issued by Robert the K. Hillman was insured Unit- action, and sent appellant commenced this Company ed of on the Omaha Insurance application' agent The it to its in Pocatello. day he died. respects, changed in first had been changed from premium had been ratе general Two rules per and second- month to month construction favor ly, excluding any provision waiver a Appellant correctly general rule asserts the added. premiums upon was disablement or ambiguous that a contract which by factors changes caused such The were doubtful terms should construed be concerning company findings as strongly against party preparing most problem by by drinking Hillman a it.1 The here in issue was insurance contract forty-two Hillman had become fact that by company. Appel prepared the insurance made. years application old was since the in correctly lant that in cases asserts form, acknowledging the A ratification lan volving contrаcts, where Hill- changes, sent with the was meanings, guage may given be one of two signature. man’s allowing recovery forbid one and the other it, ding killed the contract should be construed Hillman was November favor the insured.2 was return- a car accident. respondent’s general ed to after Omaha “tempo- Appellant heavily relies on the Hillman’s agent in Pocatello learned rary theory” set forth contract of insurance death; and the then cancelled. Farm this Court Toevs v. Western delivery There had been no theory That Bureau Insurance Co.3 signed had not the ratifica- Hillman circumstances holds under certain agents ten- Respondent’s then tion form. premium receipt a tem- conditionаl creates tender dered return of the subject to a porary contract of insurance widow, Alice Hill- was refused Hillman’s condition, rejection of the man. company.4 of the cir- the insurance Some tempo- leading of the cumstances to use policy of district court held no rary theory in Toevs included un- Hillman was life insurance on the lifе of power, complex and am- equal bargaining force on the of his death. court date contract, use of biguous phrasing in the up-rated premium was a ma- ruled that the receipt.5 a conditional application, mak- terial deviation from the re- ing the altered a counter-offer premium re Since conditional accеptance by quiring Hillman. insur ceipt this case stated Although are dis- several of fact date of ance would be effective assigns error to puted, appellant principally any required application or the date of Big Ranch, Grasmick, 1. (1971). Butte Inc. 3. 94 Idaho Id., 4. at 686. 2. See O’Neil New York Life Ins. Id. 722, 152 P.2d 707 Wat kins v. Federal Life Ins. 29 P.2d appli rejection of the examination, require- There was a subject here, but receipt, cation on the reverse side of the ments rejection was not of the insurance was notice poli pertinent the insured. effect. The two most When materially differing cy be quirements that Hillman is issued here were policy applied be is a counter found insurable and sixty days. general rule оf con for within offer under the applicat rejection unless of the therefore tracts amounts to covered different company properly rejected issued was ion.8 Here the thus received policy applied before his death. from the Since application.9 any rejection original no notice of lived, terms not hаve been had he could death, pre contract’of insurance forced to *4 application.10 was still valid and force. his miums than set forth on company’s ratification form showed necessary in order in this case Notice the issued realization temporarily applicant to who is allow an really change in a counter-offer. еlsewhere, es- covered to obtain insurance monthly premium from to complied pecially applicant here since the ap thus a material difference between the of him the with all However, policy. and the issued company. paid two surance counter-offer, which since notice of the no premiums, signed months’ an authоrization temporary rejection amounted to a of the to the insurance honor checks drawn contract, to insurance was communicated bank, company on his took a medical death, temporary Hillman before jurisdic- examination. true that some in effect. of insurance still give tions have held that a failure to notice аrgues attorney Appellant fees temporary of termination does not leave provided should be awarded in this case as view, insurance force.6 We are of for Code.11 under 41-1839 § however, given that notice must be where urges two-year Respondent that the statute temporary there is a of life insur- attorney of of limitations bars the awаrd ance. Termination of Contrary respond fees in this case.12 to fire, against requires loss wind or hail attorney argument, any fees in ent’s proper notice of such may be part of the relief which are apply insured.7 same rule should in an action accorded a claimant life where a valid contract, governed which is breached Thus, five-year is in force. statute of limitations.13 any indemnity ty, guaranty 6. See kind or Leube v. Prudential or of whatsoever, Ohio 2 A.L.R.2d 72 N.E.2d nature which shall fail (1947) Eyring City thirty days proof period Life Ins. of v. Kansas of after Mo.App. 328, provided in loss has been furnished as S.W.2d contract, policy, to certificate pay person entitled thereto to the Annot., 7. cases set forth 14 A.L.R.3d See justly pоlicy, cer- due under such amount 11. § any contract, action tificate or shall Annot., 8. brought against A.L.R.2d the insurer thereafter recovery any under court in this state for (Anderson) 9. See 1 Couch on Insurance 2d policy, the terms of the certificate or (2d 1959). ed. § 7:20 tract, pay such further as the amount (Ander- 10. See 1 Couch on Insurance 2d adjudge court shall attor- reаsonable as son) 12:2, (2d 1959). § 12:4 ed. ney’s fees such action.” provides perti- 11. § Idaho Code 41-1839 5-219(2). 12. See Idaho § Code part nent as follows: Any any “(1) issuing policy, insurer See I.C. 5-216. § insurance, certificate or contract sure- attorney application together reasonable be fees will awarded with the medical re- appellant. port, following examination, rej Also, ected the Appellant $10,000 is awarded the sum of alleged that it made day interest thereon from 5th a counteroffer to Hillman on different November, 1967, at the rate of an- 6% terms and at a different rate num, $1,000 sum of for rea- which could become ac- effective until attorney sonable fees The trial cepted writing by during attorney cоurt shall fix a reasonable fee lifetime. trial the action. Following sitting trial with- to the court Judgment reversed and remanded di- jury, out conclusions rections judgment render in favor law and were entered in favor pellant determine reasonable attor- company. summary, defendant ney fees for trial of the action. Costs found court that Hillman had apрellant. year in the a five term $10,000; DONALDSON, SHEPARD, applica- face amount of J.,C. tion Hillman stand- J., was for insurance at concur. premium computed ard terms with at stand- (concurring BAKES, specially) : plan; ard monthly payment risk rates on a Justice monthly pay- paid Hillman had accept- the fact that this has Given Court advance; ments in that he received ed the “tеmporary contract of insurance” *5 ceipt premium paid for the con- theory Farm in Toevs v. Western Bureau the requirements alia for tained inter Co., Insurance effective, applied insurance for to become by 682 (1971), the conclusion reached Jus- e., McQuade opinion, tice in majority his i. by proposed insured is determined “[t]he that the of insurance Company office the the home at policy continues until the new which consti- insurable, Omaha, in ac- Nebraska, the the tutes counter-offer is or com- delivered prac- and cordance with usual rules its insured, reasonably municated to the fol- ap- tices, on the and for the basis I in the result lows. therefore concur the plied of on the date effective majority opinion. reached in the any application or of medical the date Company, by examination the McFADDEN, (dissenting). Justice later; is whichever my opinion the It that the of exactly as policy The issued court should be This affirmed. the of days the date for within from theory appel- was tried on the out the set application.” complaint respondent lant’s that insur- the Omaha, Hill- found that company, on No- trial court further United of The examination; that physical vember issued insurance man took the for- insuring was report life the examiner the of Robert K. $10,000; subsequent company on the sum to the October of that warded 1967; policy, examina- issuance Hillman was killed based on the medical that tion, company was beneficiary, appellant and the named determined Hillman, for acceptable Alice face a risk but was was to the non-standard entitled rate; attorney’s at an plus amount of the fees. insurance increased in- by respondent company its determined Hillman was and rules any with its answеr denied that surable accordance there was valid on basis practices on issued the life applied. The trial court alleged ap- Robert K. Hillman. that an 2, 1967, policy that on for such found November been made monthly premium at a and that after the had received respond- theory that the rate was issued and forwarded decedеnt had effect at Pocatello, Idaho, agent “temporary at with condi- the time of his ent’s death above, delivery procure pointed Hill- instructions to As this tional insurance.” out acceptance consistently and Court has man’s written held it not con- will good free sider interjected appeal; that he was in health new issues certification on change injury had no in health therefore this issue should not be consid- application. ered on since the date of provided that if there were structions also However, assuming “temporary that the re- of health theory insurance” this
turned. consideration, court for here record Hill- trial court further found that fails to establish such a contract. When man died on November Mr. Hillman filled out paid issued ratification form were proposed policy, by company’s agent on received Novem- he was receipt properly filled out ber court also found 1967. The trial which had been attached to the materially court, As found receipt the trial this different basis than reason requirements tained two for the insurance the extra and was never effective, proposed become i. e. that the effect it was a counteroffer insured is found the home office to be quiring acceptance communications and insurable on policy applied the basis of the during the lifetime of which was for and exactly that a issue aсcomplished. plied days. for within 60 The trial examining receipt, nothing are In of fact I find fully ambiguous sustained terminology, record. At no time found as was presented there ever to that court Toevs v. Western Farm Bureau Life theory that Mr. Hillman was covered any temporary contract of insurance. heavily While relies on Toevs appellant objected to the introduc- v. Western Farm Bureau Life Ins. tion in evidence of defendant’s exhibit C *6 supra, authority position, for her which had attached to it the blank form of opinion (to give which dissented) can but I the “Receipt” being which is argued now case, little aid here. Unlike this this Court by appellant as the basis for the so-called ambiguities held that Toevs because of temporary contract of insurance. in forms and documents submitted long
It has
been
company temporary
the rule of this
Court
that it will not
appeal
consider on
issues
Here the case was tried
arose.
originally raised in the trial
policy
court.
unde-
Weath-
basis of a
issued but
erby Weatherby
Co.,
v.
Lumber
94 Idaho
livered. Here the deceаsed’s
504,
;
(1972)