*1 SHEPARD, Justiсe, dissenting: below, my judgment, In the court and the here, majority making reward the lessor for I concur much of the separate opinion a demand for monies to which the court Bistline, J., regarding adoption decided the lessor was not enti- ultimately by new rule the majority here. Further I below, Conversely, tled. the court and the believe it more than passing strange that in here, majority penalizes the lessee for his an a summary judgment, charges of the lessor’s resistance unfounded majority in affirming that summary judg- terminating the and for- by tenancy lessee’s ment, continually refers to the feiting his interest which he had accumulat- by fact the trial court. The record is un- equipment. ed in the restaurant That re- exactly clear as to how the trial court be- submit, sult, I stands both law and reason lieved itself the finder of fact since original- I, therefore, heads, and respective on their had ly appellant moved for a jury trial. dissent. my judgment, the facts have been obfuscated, they but really quite are simple. partiеs occupied position of a lessor agreement
and a lessee. Their lease con- provisions
tained for lessee paying a set rent
monthly together with charges other repairs.
for taxes and
agreement
lease
provided for
further
payment
additional
or. Based lessee’s pay failure to percentage rent,
demanded lessor made for-
mal written demand therefor and ultimate- brought
ly the action to terminate the lease
based on failure of the lessee pay
demanded percentage rent.
By the time the matter was submitted to
the trial court on the various motions for
summary judgment, all disputes between settled, parties had been and all monies paid,
due had been save and except
alleged percentage rent. The trial court
held that lessor was not entitled to the rent,
alleged percentage thereby holding in
favor of the lessee in the only then remain-
ing dispute. Nevertheless, area of the trial
court terminated lessee’s lease. *2 Sudweeks, May, May, D.
Jay Sudweeks Falls, Shindurling, claimant-ap- Twin for & pellant. Jr., Elam, Burke, M. Tyler,
Robert Koontz, Evans, Boise, Boyd & for defend- ant-respondent.
DONALDSON, Justice. Iverson, was appellаnt, Martin W. 15, 1975, injured on December indus- an arising during the course of trial accident employment as a truck driver for the respondent, Farming. Gordon Because payment over the of the claim dispute application with the son filed February Industrial Commission October, 1976, attorney en- Iverson’s stipulation into a Farm- tered the claim before the ing that prejudice be dismissed “with fully reason that the same has been for the stipulation and settled.” The compromised preliminary determina- was basеd agricul- a result of injury was tion that ex- that would turally-oriented employment require- from the empt carrying Compensation Workmen’s ment of stipulation was not entered Insurance. payment, in an the basis that into on However, claim, disability.” partial to settle the had been made nent the ref- attempt Iverson’s attorney to Iverson. later testi- further determined that there was “no eree that he in an affidavit entered into the fied making in the record sufficient for evidence misinterpreting аfter a conver- stipulation of Claimant’s a determination had with sation he Iverson. wage purposes computing weekly *3 Compensa- the Workmen’s benefits under stipulation, although Pursuant to the concluded, prejudice,” the referee stating Finally, “with the Industrial tion Law.” dismissed the claim on however, Commission October “that Defendant’s Motion Dis- 22, An action was brought by then for the reason that granted miss should be theory Iverson district court the on injustice pursu- has been shown no manifest negligence but this suit was dismissed be- Code, 72-719(3).” The Idaho ant to Section jurisdiction. lack of cause of then entered its or- Industrial Commission
Following dismissal, Iverson, through this the claim the dismissing der based counsel, filed a reopen new motion to the ap- referee’s memorandum decision. This the case before Commission peal followed. 72-719(3)1 March under I.C. § claiming required reopening that the case I. injustice. order to correct a manifest The Industrial Commission referee recom- Iverson, The that appellаnt, argues mended to Industrial Commission that dismissing erred in the Commission Thereafter, granted. the motion be hearing after a on the basis that he claim granted the reopen motion to to show manifest because failed application and a second for hearing was initially reopened his claim by then filed Iverson on September correct a manifest in order to 1978. After several continuances the mat- respondent, Farming, argues hearing. ter was set for reopen the motion to the case should that At the a Farming made granted. even have been Iverson also to dismiss motion the case at the close of finding that the claims Commission erred in testimony. 29, 1980, On February was insufficient evidence to de dismissing the order claim was by entered average wage attorney termine and that the Industrial Commission. The referee de- granted. should be fees termined that Iverson “suffered an indus- persuaded by We are not Gordon Farm- accident, arising trial out of during argument the case should not ing’s course of his as a truck driver (1) reopened have been it had ini- 15, 1975,” for defendant on December (2) dismissed with tially prejudice, been Farming’s and that Gordon “trucking oper- long filing delay rehearing for had exempt ation is not from the Workmen’s prejudiced respondent. even Firstly, Compensation pursuant Law agricul- to the though parties stipulated that the case exemption.” tural The referee also found “may prejudice,” be dismissed with that, consequence of his industrial “[a]s only order Commission’s stated accident, Claimant period “[i]t suffered a of to- ordered that hereby above-entitled temporary disability,” “[b]y tal reason of his claim, being No. I.C. 142350 is accident, dismissed.” industrial Claimant incurred cer- Therefore, because the order expenses,” tain medical did not dismiss a conse- “[a]s quence prejudice industrial the claim with we need accident of Decem- not con- 15, 1975, ber Claimant suffers perma- some first appellant’s argument. sider 72-719(3) “(3) commission, 1. I.C. reads as follows: оn its own at motion (5) years within five of the date of time agree- “72-719. Modification of awards causing injury the accident or date of ments —Grounds—Time within occupational first manifestation of an dis- made.— ease, may review case order to correct a injustice.” manifest concerning long delay, pra, specific findings this and to make in order Secondly, reopened within review the five-year properly case was time this Court can 72-719(3). set forth in I.C. period We issue. that the time within which a motion to
hold
III.
brought
governed
can be
by
review
Next,
five-year period
prej-
and not
a claim of
argues
prejudice
finding
If
were used as the stan-
Commission’s
udice.
the Industrial
suffi
might
a case
never be re-
is no evidence in the record
“[tjhere
dard for review
making
imagine
since it is difficult
a determination
Claim
opened
cient
party
average weekly wage
purposes
in which the other
would
situation
ant’s
in some manner.
benefits under the Workmen’s
prejudiced
computing
not be
Law” is inсorrect. Gordon
Compensation
order
uphold
We
Commission’s initial
argues
finding
that this
should be
the case.
Iverson’s motion was
*4
the claimant had only
because
upheld
attorney’s
stating
affidavit
supported
a
time
Farming
for Gordon
short
worked
stipulation
he entered into the
that
because
trips
no discussion of further
there was
and
misunderstanding with Iverson. Be-
of a
We disa
with the claimant.
to be made
unauthorized
stipulation
of this
cause
Where,
of the shortness of
because
gree.
right
hearing
denied his
to a
before
son was
injured
employment,
the
claimant’s
time of
Commission, and this
the Industrial
was
the
employment,
the nature of
or from
to establish a viable claim of
sufficient
average weekly earnings cannot be
rate
injustice which substantiated the
manifest
determined, method for com
practicably
grant
hearing,
Sines v.
Commission’s
provided by I.C.
72-419.2
putation is
§
(1982),
531 Justice, fore, BISTLINE, concurring in rever- to consider this evidence in we decline sal, proceed- to of further scope but as 72-212(2). light of I.C. §
ings.
IV. I. Finally, argues that because it reverses opinion, insofar as The Court’s reversal, writ- carry soundly failed to Workmen’s explains I ten, agreement. I am in From there Compensation Insurance attorney fees that on remand the would direct Commis- be awarded to him. Gordon Farm should again examine the issue of benefits due sion ing argues good it made a faith at Iverson, opinion as the but provides, Court’s tempt procure the insurance. For us to wisdom, logic, necessity I do not see attorney award fees at this time would be further consideration of asking However, premature. this Court has Appel, v. 103 Sines manifest stated in Heese v. A recently Trucking, & T (1982), pointed 331 I out 644 P.2d Idaho that, Idaho (1981) P.2d 962 concurring opinion legisla- my apparent the legislature in “[i]t 72-719(3) enacting conferred ture compliance strict provi tended with those equitable pow- broad requiring sions employer obtain by the district possessed to those ers akin security payment of the compensation amplify it is in order to Today courts. employees, injured and that it intended comparison procedures of district court *5 penalties for non-compliance. substantial trials to those of the Com- new granting in mission in for manifest 72-210, “I.C. the specific section § in- by voked the commission to impose the 72-719(3) a of I.C. bears language The § case, in this penalty is It unambiguous. statutory provi- the strong resemblancе to no requires showing of bad faith scien- or granting the governed which in 1971 sions courts, prerequisite imposition ter as a to the and it is of trials in the district of new sponsors the of surcharge, readily the 10% believed attorney costs or well in 72-719(3) provisions had those § Id. at 635 fees.” P.2d at 964. could under the judge mind. A district Therefore, in the event the Industrial Com- new grant 10-608 a of I.C. provisions determines that mission Iverson is covered the applica- motion without on its own trial is directed to follow Heese. as party, upon as well of either tion of the The order the district party.1 a Where application of the claim reversed and is remanded for trial, granted a new its own motion court of proceedings conformity opinion. with this took place, the new trial absent an that there very much doubted it is to be appellant. Costs to which, at unreported case in or reported is a trial, second the district close of SHEPARD, JJ., McFADDEN and concur. retroactively retract purported cоurt the new trial.2 granted had So order which J., III, BISTLINE, I, concurs in Parts 72-719(3), under I.C. proceeding with a IV, separately and writes on Part II. reopened for reconsid- a case has been once J., tried, registered it (McFADDEN, prior formerly his vote of the issues eration if, of the law after 31, 1982.) anomaly on be an August retirement would to his provi- original promulgated This held that the identical its order. Court The 1. Court 59(d). rehearing grant jurisdiction judge sion in I.R.C.P. had no stated: clear intent the order and “[T]he Court, Spivey 219 In v. District 37 Idaho granting or an order either statutes is that case, (1923), district court tried the P. remedy only trial is final and new judgment a motion for a and denied entered by appeal.” at 204. Id. at 219 P. court, however, later entered an new trial. trial, effect, reversing granting a new order in, the evidence was during progress any specificity, made and indeed ordi- case, the of the Commission could reverse narily cannot be. Whether it is a sound projection and recant its order. Yet will stand or fall the outcome decision case, is what it has done in this most reopen- which flows from the because, likely not having the benefit of The Commission should ing. given Appel, supra, v. Sines and two members of power this broad and then fettered with a the Commission not likely aware of the 1971 rule that require justi- court would them to statutory provisions governing district court exercise of it. I fear the fy an Court’s trials, the new Commission felt insecure inadvertently and unwit- opinion perhaps power the exercise of the new conferred go in that direction. tingly tends upon it. grants When a trial court a new trial in II. there miscarriage the belief that has been a referee, Implicit in the justice, it is not upon encumbent Commission, is adopted by were judge of that court to make any findings of Iverson suffered an industrial accident fact which are based the conclusion to working employed for and by while Moreover, a new in the federal grant trial. Farming. The found that as a referee also system right appeal. there is no In in- result his industrial аccident Iverson Idaho, although appeal may be taken expenses. Although curred certain medical order, such an challenge is most finding referee did make a as to the denied, and the result is a generally only incurred expenses of medical amount delay in the second trial. Iverson, the record reveals that as result The second trial not be indic- may may incurred medical of the accident Iverson of the trial court’s initial ative belief $1,800 $2,400. To of between еxpenses justice. was indeed a miscarriage woman, working man or this only gauge of the earlier accuracy fact, significant. is no doubt sum second, is the of that per- belief result case, the record shows that has is, haps point even a third trial. The how- filing bankruptcy if his claim considered ever, trial, ordered, that the new once does *6 unsuccessful, Farming is against Gordon and neither that trial or place, during take his medical way pay he has no other to since any after does trial court have authori- Iverson can Regardless whether bills. halt to call a and reverse its own order ty compute a means which to establish (If there the trial. is such author- granting nothing fact that he received wages, the having unaware of its ever been ity, I am clearly he was entitled to at least when exercised.) trial, If the second whether to $1,800, that equal clarity demonstrates moment, jury being pro- of no the court claim re- original dismissal of Iverson’s other, same as the duces thе result injustice and the in manifest Com- sulted it that there was not appears likely certain justified reopening was case. mission miscarriage justice which the court injustice a case of manifest is this was That But it is a call perceived. judgment earlier of Iverson’s so since dismissal especially made, than for an immedi- and once other attorney’s from his unau- resulted claim reconsideration, it governs motion for ate Thus, agree while I stipulation. thorized trial, At ensuing procedure. the second remanded to the case should be that to, are should parties required nor ex- to determine the in order Commission of the attempt litigate to issue they, compensated, is to be which Iverson tent to en- of the order which has been propriety find- that the Commission also hold I would of func- relegated It is to the status tered. issue of manifest on the ings tus officio. attempt to sub- post mortem to a amount to original order Commission’s reopening order with a Commission stantiate
So аre not at all neces- injustice. Again, reopen findings this is a for manifest — call, sary. and one that need judgment the com- why one reason This probably will be some occasions where the is There injustice.” no “manifest may reopen found Commission second mission hearing produces the same result as the strongly indicates The evidence hearing. This prima first would be facie was Farming by Gordon son’s there may not have been evidence that he had testified casual. Iverson very event, injustiсe. manifest In either where residing who was living with a woman been reopens, re- subsequent Au- the farm since residence on in a small appropriate- sult will tend to establish the for Gordon He first worked of 1975. gust inappropriateness ness Farming days for two October interest, purely order —which academic hay. baling beans and some rows of discing grants as where a district court a new trial. for those compensation that his He testified Sines, however, In it was not an academic pound was “a half of work days two because question such relief had been de- casual, em- being to addition pot.” a constant basis this applies nied. On Court agri- it was exempt because was ployment differentiating a distinction in be- such 72-212(8). cultural the standards appeals tween used in clean hired Iverson to Farming next order new trial and the stan- to they which used semitruck up Gordon’s appeals used in from an order grant- dards the warehouse. crops to haul their ing a new trial. fifty about hours spent that he testified David Gor- paid was job $200.00. BAKES, Justice, dissenting: Chief Iverson, testi- don, who hired partner majority opinion merely seems to be three or four spent about that Iverson fied remanding this case to require the commis- was working on the truck. That work days specific to make more on the sion com- done so that Gordon could issue of manifest While such a to and was hauling mence beans California view, unnecessary I would my remand performed couple of weeks before great objection have no to such a remand 17,1975. December trip fateful except for the ambiguous discussion of the it was point during period, At some the majority engages issues that in with accompany Iverson would agreed agree. I cannot co-driver to a load David Gordon as haul majority asserts that of an payment Iverson’s was beans California. stipulation “unauthorized Iverson was de- per seven mile. expenses plus cents to be right to a hearing nied his before the Indus- asked tеstified that Iverson was this is sufficient trial along trip on the because Iverson colorable manifest in- claim of establish area Gor- familiar with California thereby requiring the Commission justice stated, pretty “It’s don was not. Gordon *7 hearing.” simple With that state- grant same map read a at the hard to drive and agree, ment I could were it not for been in that area before time and he had questioning in then majority of action just getting a deal to work out and it was finding injus- that no manifest the referee’s testifed that going.” the truck existed, after the tice referee had conducted only the one California agreement covered hearing and taken evidence on the issue. trip. me that there are at least It is clear to for Gordon employment total in contained in the evidence Iverson’s two reasons thus, exempt days two of was upon which the referee could record 1975, October, which he work finding his of a lack of manifest farm have based three or pound pоt”; of “a half employ- paid reason is that was injustice. One the truck for which working on days of Farming was four of Iverson ment 1975; December, early paid 72- was $200 at best. Under I.C. he only § casual the truck on trip driving of one part have been 212(2), Iverson’s claim could not mile, during 17, 1975, paid by was “casual.” December employment if granted 534
which the relevant accident any occurred. The employment trip. further after the one commission would have justified been in Consequently, upon there was no evidence finding that Iverson’s employment was which the commission could determine that “ ‘merely occasional, incidental and without the claimant Iverson would have driven regularity and for a limited and temporary miles in order to determine what his future purpose regular and was not recurring em average weekly wage might have been. which was ployment customary and to be The existence of a method of calculation anticipated regularity,’ and hence the of satisfy does not need for evidence was compensable.” accident Dawson v. history wages agree- either a of or of an Co., Joe Jester Artificial Limb 62 Idaho ment, of express implied, continued fu- P.2d 494 (1941); see Bigley v. Smith, statutory 64 Idaho ture The method of (1942). P.2d 658 Thus, the finding commission’s of no “mani creates the need for evidence of calculation injustice” is supported by fest this eviden employee’s wages an so tiary which record discloses that the em calculated. In this weekly wage mаy be was ployment “casual” and thus not cover upon no evidence which to base case there is employment, 72-212(2), I.C. and the ed § average weekly wage finding should be affirmed on that commission ba Iverson, and therefore the commission However, majority appears sis. to want justified in denying would have been fact, more detailed and thus this original they claim. Because would son’s to the Industrial Commission re remand claim, justified have been sults. of evidence would have lack been a such reason, record, clear from this The other reason for the commission to sufficient the commission could have found lack petition reopen Iverson’s based on a deny injustice” lies in the fact a “manifest of manifest lack there is insufficient evidence upon in the majority opinion, As asserted to base a calculation of Iverson’s justified Iv- permitting commission was average weekly wage under 72-419. I.C. § However, his case. reopen erson majority indicates thаt “a method for mean that Iverson’s claim must does not provided computation by I.C. 72-419.” § automatically granted. Upon re- then majority equating here is the existence justified in calculating average method of mand the commission would be weekly necessary with the evidence wages apply either finding a lack of manifest method calculation. The two are employment merely Iverson’s separate, entirely majority’s merger and the thus not covered under casual and confusing. of the two 72-212(2), or that there is a lack of evi- wages paid, either to be or the dence of calculating average The method of week- wages expected, under I.C. 72—419 work which could be ly requires ei- amount of history wages partic- ther a earned in the which to base an award. where, case, employment or as in this ular was no wage history, agreed then an customary wage rate together with some of the amount
evidence could reasonably expected.
claimant have case,
Thus, in this where there was no histo- *8 truck, wages driving the claim-
ry prove agreed both that he had an
ant had to rate, customary wage coupled with the of continued future
prospect rate, i.e., agreed wage there was an
Here mile per plus expenses, cents but
seven was no evidence that there would be