Killinger v. Iest

Cf. Clark solely by accident. the second Co., supra; Andrus v. Boise

Brennan Const. Company, supra; Lind

Fruit Produce & Mines, Inc., supra.

skog v. Rosebud respondent’s

Thirdly, third because ef by the residual

surgery was necessitated in prior surgeries, which

fects two until build-up tissue of scar

volved Board symptomatic, the

tissue itself became liability for apportioning in error was not

medical, expenses hospital kindred temporary

compensation benefits for total respondent’s successive

disability between period July

employments for the Post Compare Beard v. hearing.

date

Co., 939. P.2d award, apportionment

Under Guaranty Na

appellants Log Tavern prejudice because of claim

tional cannot until of the second accident

lack notice 15, 1965,

July cannot be and their 72-405; precluded ground. on this I.C. § Brown, 754.

Long 128 P.2d Inc., Forests, Ansbaugh

See Potlatch 442. Board

Award of Industrial Accident respondent. Costs to

affirmed. SMITH, TAYLOR, Mc- J., and C.

QUADE McFADDEN, JJ., concur. P.2d 490 KILLINGER, Killinger Electric, dba

Gale Plaintiff-Appellant, A. W. Defend IEST and

Case ants-Respondents.

No. 9619.

Supreme Court of Idaho.

May 31, 1967.

572‘

SMITH, Justice. appealed judgment from involuntary of his di- or- against respondents, rected and from an Ap- denying der his for a new motion trial. repair pellant operates appliance an electric shop Respondent re- in Twin lest Falls. Parma; a sides he owns farm situated Shoshone, north of herein referred to as Respondent farm. was Shoshone Tadlock tenant under an oral lease of farm. Shoshone Appellant complaint alleged in his that Tadlock, and “en- tenant gaged” appellant furnish and an to install irrigation pump electric Shoshone farm; capa- personal that in his Tadlock city promised that pay pump; for the also to appellant performed obligations contract; respondents, oral and that them, wrongfully and each to refused pay price agreed pump, for the related materials, and installation services. The cause tried to the district court was Appellant’s sitting jury. without a case-in- chief, upon testimony appel- based assistant, lant, respondents, and Ralph Taylor, revealed the circumstances surrounding the to fol- transaction be as lows: May 21, 1963, telephone

On Tadlock requested appellant repair electric pump irrigating used for the Shoshone Appellant Ralph Taylor drove farm. and farm, in- to the and met with spected pump. The malfunctioning repair, pump appeared require extensive his appellant so loaded the machine into transported Twin At truck and it to Falls. appellant lest that time unaware that was Tad- farm and that the Shoshone owned merely lock was Iest’s tenant. 22nd, day, May went next Tadlock inspect pump. The shaft Twin Falls to generally pump was broken much poor felt that too condition. Tadlock Kramer, Walker, Pope Plankey, & Twin be elapse pump could time would before Falls, for new, restored, more efficient Boyd Downen, Caldwell, ir- Gigray, immediately pump & should be installed respondents. appel- rigate crops. According ap- testified, testimony, Tadlock then informed under oral lease. Tadlock

lant’s tion finally, pump irrigation pellant lest the farm and that that he used the owned he, Tadlock, purposes throughout crop Tadlock Iest’s tenant. the 1963 season. authority from further asserted that he had then called landlord, lest, his make extensive “to customarily who testified that he ordered repair improvement place,” that paid work and himself. lest added bills re- “he had from his landlord to unprecedented that Tadlock’s conduct was pair purchase pump,” and definitely powers beyond and du- price. Ap- pay agreed that lest would ties as Iest’s lessee. pellant admitted on cros-examination evidence, At re- the close of con- attempt he made contact lest for no spondent lest moved for an order of invol- authority, firmation of Tadlock’s asserted untary pursuant 41(b), dismissal to I.R.C.P. solely upon hut relied Tadlock’s statements. grounds on evidence was that Moreover, contrary allegations his to the of prove liability on the insufficient to Iest’s complaint, appellant that he never testified alleged parol Respondent Tad- contract. requested party a to Tadlock to become dismissal, involuntary lock also moved for contract, his oral nor did Tadlock volunteer contending upon that the evidence and personal liability purchase agreed on the law was not he liable to price. granted The trial motions court both Appellant pump installed the new on separate judgments, thereafter entered one premises item- Iest’s An on 1963. dismissing respondent June as action to amounting $2,047.89, bill, ized cover- other, as to dismissing and the the action ing machinery, material and installation granting respon- Tadlock. In charges, some- was mailed to lest in Parma dismissal, dents’ motions for the district during time This the second week of appellant June. failed to court took the view that appellant was Iest’s first had notice introduce substantial evidence to show pump farm and installed a on the Shoshone theory or that agency, on a Iest’s of expected Shortly pay. that lest aft- par- appellant a Tadlock was indebted to as bill, er appellant lest tele- received ty parol agreement. phoned requested payment. lest lest disposition trial court’s unequivocal refused and terms denied thereof action constituted a determination any that Tadlock authority had to bind lest Haynes, on the merits. Grieser v. purchase pump. irrigation ; (1965) Strat 404 P.2d 333 Stratton v. Appellant sought to establish Tadlock’s ton, (1964). P.2d 340 On rights agree- his oral lease duties under appeal, district court the failure of the ment an ad- with lest. called as sepa specially and to find the facts state by law, required rately 43(b), verse witness under I.R.C.P. testi- conclusions 52(a), assigned error. I.R.C.P. is not by appellant’s fied on cross-examination counsel Iest’s tenant had duties as that “The asserts simply farm the farm. Shoshone granting defendants’ court erred [re- utility di- The costs of seed and were bills respective for involun- spondents’] motions A ma- vided between landlord and tenant. ** tary I.R.C.P. Under jor expenditure con- for installation of a proper only where 41(b), the dismissal is pipeline personally crete ordered “upon plaintiff and the law facts occasion, lest. On Tadlock had a brok- one right to relief.” has shown no repaired, Tad- en shaft on Iest’s tractor but district conclude that We paid lock himself bill consult- without for dis properly granted the motion cash, ing lest. There was no evidence that respon against missal portion crops, con- of Tadlock’s or other any Appellant failed to advance dent lest. passed sideration to lest as the considera- competent no tending alleged agency, to establish that so that evidence tive Tadlock’s express whereby any lest had invested Tadlock such state- foundation existed implied authority fur- to contract for the ments Tadlock could to corrobo- serve nishing irrigation alleged rate and installation of an or define extent of his Appellant, agency. on the Shoshone farm. showing by any in- how lest benefited tenancy The fact of yield crops, creased if of Tadlock’s such in property on not constitute would was, there al- also failed to establish Iest’s dependent agency. Unless evidence of leged liability theory on a of ratification. by specific agreement, made so tenant And, finally, appellant’s contention that lest any pur not the of his landlord estopped deny liability should be must be Rumry, pose. Tramway Corp. Denver rejected, clearly since the evidence shows (1935); 98 Colo. 52 P.2d 396 Shaver having never held his tenant out as Bell, (1964); 74 N.M. P.2d 723 major improve- to contract for Esau, (Okl.1963); Coe v. ments Shoshone farm. Agency 2.§ C.J.S. Appellant assigns as error the district ex appellant, on direct Counsel rulings several court’s the admissi- ques appellant, proposed amination of bility testimony appellant sought which tion: against respondent to introduce lest. * * * “Now, getting back to this con- Appellant first that the contends Mr. lest and versation the on ranch erroneously trial court ruled that Tadlock’s * * *, you that time do Mr. Tadlock at scope declarations as to the existence and of any recall or not Mr. lest made whether lest, authority his binding would not be on indicating statements that Mr. Tadlock the alleged principal. ruling That was authority you he had the that he told proper. The alleged declarations of an had?” agent, standing alone, are to insufficient question obviously suggests The wit- to the prove grant power by the of him exercised appellant’s counsel ness the answer which principal and bind parties. to his to third correctly desired. The trial court sustained Appellant’s testimony decla as to Tadlock’s respondents’ objection ground that assumptions rations and hearsay question phrased, leading sug- the or against inadmissible principal prove the to gestive. See I.C. R9-1203. § the existence alleged agency. of Tadlock’s Appellant’s counsel on further cross- Co., 193, Brunette v. Idaho Veneer 86 Idaho as an ad- Tadlock, examination of called ; (1963) 384 P.2d 233 Chamberlain Amal v. attempted question him party, on verse gated Co., Sugar 604, 42 247 12 Idaho P. authority as subject alleged the his Iest’s of (1926); 466, Cupples Stanfield, agent. According appellant’s argument ; (1922) 207 P. 326 Cox v. Crane Creek appeal, interrogation this was intended Co., ; Sheep 327, 34 (1921) Idaho 200 P. 678 of his for the acts establish Iest’s Restatement (Second), Agency 285 § alleged agent. trial sustained The (1958). objections by of counsel to certain The alleged agent, statements the of questions proposed. Counsel asked those scope to the authority, of are possessed admissi Tadlock, first, Tadlock whether if, ble at the time pump the statements are offered a on Iest’s authority to install new evidence, in the agency second, existence of and lest property; whether Tadlock proven by Hay independent agreement evidence. Tadlock’s an as to had reached Yost, ward v. 72 purchases 242 P.2d 971 the mainte- power make ; (1952) Lightner Pugh property; Lumber improvement v. Russell & nance and ., ; third, Co 52 (1932) and, P.2d or 17 349 Tadlock understood whether Seavey, Agency prior in- (1964). Appellant 105B felt that he had to contact lest § independent proba- assigns as any expenses. Appellant introduced curring no evidence 576 prove rulings excluding any way

error trial court’s in an- from benefited questions. pump. swers to of those Tadlock’s use The benefits directly principal must accrue as the agency an While relation cannot proximate result trans- of unauthorized proved by he extra-judicial statements in order to constitute ratification purporting of declarations one to act as principal. Bankers Life Ins. Protective agent, agency, the fact of it when rests Addison, Co. (Tex.Civ. 237 S.W.2d 694 parol may agreement, be established at App.1951); Agency § Am.Jur.2d testimony agent himself. (1962). Exclusion of evidence agent’s extra-judicial The are statements pump quality enhanced mere hearsay, agent’s but at trial the testi crops, proof in the an in- absence mony relationship concerns his to the al yield directly creased benefited leged principal. relationship The being prejudice appel- theory did not subject issue the witness being to cross- lant’s case. examination, agent’s testimony cannot Although appellant’s ac- dismissal of hearsay. Williams, Daly be termed proper, against tion lest was (1955); Ariz. Jameson against respondent of the action Tadlock Co., First Savings Bank & Trust 40 N.M. Appellant’s upon grounds. stands different 1492 (1936); A.L.R. evidence, particularly testi- own Agency (1962). § Am.Jur.2d repre- mony, established that Tadlock had however, alleged agent, had “to sented he lest’s testify should as to the existence of facts repair improve- make this extensive or conditions which establish ultimate ment,” repair purchase “to the- agency. Apellant’s questions, fact of es pur- agreed pump,” bind lest and to sentially inquiring as to whether lest dele testimony Ralph Tay- price. The chase gated authority to call for in lor, assistant, ap- corroborated admissible conclusion the witness. Park pellant’s testimony, re- and evidence Otis, 322, 571, er v. 130 Cal. 62 P. 927 through exam- mained uncontradicted the ; 158, (1900) Hutchings Cobble, v. 30 Okl. respondents, the and Tad- ination of lest (1911); 120 P. 1013 19 Evidence Cal.Jur.2d lock. 318; Wigmore, 7 Evidence (3d 1960 § § 1940). ed. party entering A into contract capacity agent, in as his self-assumed Appellant adopted position the at purported authority no actual from the that, originally even if Tadlock lacked au existing au principal, in or excess of thority purchasing to act as in thority, personally con is liable to other pump, subsequently lest ratified good tracting party in faith who acted by accepting retaining transaction ben representations. in reliance on the false resulting efits from Tadlock’s use of the only purport if terminates The pump. Smith, Cal.App. See Tomasini v. 26 deny principal estopped ed the author is 227, ; McNary, 146 (1914) P. 691 Stout v. ity subsequently the transaction. or ratifies 99, 75 (1954); 267 P.2d 625 Restate Davis, 49 Clinic Lois Grunow Memorial ment (Second) Agency (1958). Ap 99§ (1937); 277, Ariz. 66 Moore P.2d 238 pellant irrigated established that Tadlock 572, Maddock, 420, 64 251 167 N.E. N.Y. crops the 1963 pump, ap with the new but ; (1929) (Second) 1189 Restatement A.L.R. pellant’s quality evidence as Agency (1958). 330 §§ 1963 harvest was excluded the trial ruling court. assigned The is as error. liability for The issue

Assuming misrepresentation some appellant’s of his is evi dence framed to the 1963 what at variance harvest should have with'the issues as Nevertheless, by appellant’s complaint. been admitted as relevant to the issue of ratification, emerged appellant appellant’s nevertheless failed to once the issue from proof, by express pal, offered submitted or im- or in existing authority, excess of an is plied parties, personally consent of the the district contracting liable other obligated party good to treat the issue of who acted faith and in reli misrepresentation respects representations. in all it had ance as if on the false Nowhere pleadings. court, e., in the pleadings raised I.R.C.P. 15 in the before the trial i. (b); Holley, plaintiff’s complaint, plaintiff’s McMinn 86 Idaho amended (1963); Brown, P.2d 229 of claim Morford v. notice of mechanic’s and material- lien, (1963). respective P.2d 45 man’s or in the answers of defendants, the two is this even re issue involuntary The motion for dis motely raised; deficiency but this is side appellant’s missal of the action should stepped by majority, recognizing after granted respondent have been lad- it, by holding “Nevertheless, once the is — lock, since, on the law the facts estab emerged appellant’s proof, sue from offered lished, appears appellant it had shown by express implied submitted or consent of right against respondent to relief Tadlock. parties, obligated the district court was Holtzoff, 41(b). 2B I.R.C.P. See Barron & misrepresentation to treat the issue Moore, (Rev. 1961); ed. Federal § respects all if it had been raised in the (2d 1966). Practice 41.13 ed. § pleadings,” citing 15(f), I.R.C.P. McMinn The judgment district court’s of dismissal ; Holley, (1963) 86 Idaho against respondent action Brown, Morford v. is affirmed. 45 (1963). judgment of dismissal of principle inapplicable the cause This against re- Tadlock is at Mc- First, hand for two reasons: in the versed and the cause is remanded for fur- specific Minn and Morford issues cases proceedings ther consonant with views decided the court were raised in expressed. herein parties, points briefs their both in appor- is allowed his costs arguments and authorities and in the con against respondent tioned Tadlock. in the tained in the briefs. This is not so Respondent against lest is allowed costs case before us. There is no mention what appellant ever in the briefs of either the respondent concerning personal re TAYLOR, J., McFADDEN, J., C. sponsibility of defendant Tadlock to concur. appellant theory advanced court, any is there mention of such is nor SPEAR, (concurring part in Justice presented the trial pleadings sue in the part). in dissenting long ruling this It been the of court. I portion majority pre concur that the it not consider issues court will opinion affirming judgment the this unless of invol- sented for the first time to court untary (actually grant- jurisdiction trial dismissal an order it be the issue of of the 179, Carter, ing non-suit) a motion court. Cantlin 88 Idaho 397 for as to defendant 57, 761; Miller, portion the Miller 88 Idaho lest, but I dissent from that P.2d 476; Spicer, opinion judgment 86 Idaho the of in- 396 P.2d Robinson v. which reverses 844; Mead, 138, voluntary granted P.2d Frost v. to defendant 834; Cox, 84 Idaho to the trial 383 P.2d Cox v. Tadlock remands court Shinn, 929; portion P.2d 82 Idaho proceed- Smith of the cause for further 348; Taylor, P.2d Wormward v. ings. 686; 450, 221 P.2d v. Pot Webster on the contract is 527; Forests, latch based, prin- majority opinion, the Donovan, 11 Idaho 83 P. 608. Miller v. ciple party entering that a into a contract in 15(b) provision Secondly, the of I.R.C.P. capacity agent, with no his self-assumed majority opinion upon in the princi- relied purported actual from the parties briefs, "When not for the in argu- follows: issues raised their written by express implied arguments pleading are ments or oral tried before the court. parties, they party opportunity Neither shall be treated has had an to be consent respects they in if had heard all been raised in on such issue in the trial court pleadings.” argue properly nor to The record in this case brief or it this before provision; bring it but court. does not within clearly plaintiff

instead did shows judgment court should rely upon theory, for advanced respects. be in affirmed all itself, supreme first time in lia- concluding personally that Tadlock was McQUADE, J., concurs with this dissent. shows, ble The record on appel- page transcript, 22 of when the cross-examined, being

lant follow-

ing testimony: today

“Q. up to You have never even pump, pay Mr.

asked Tadlock to for you?

have No,

“A. Sir. “Q. And did Mr. Tadlock in this con- JONES, Plaintiff-Respondent, Pauline E. say you anything give versation impression going pay he ? JONES, Defendant-Appellant. William T. No,

“A. Sir. No. 9634. "Q. your discuss- Then discussion was Supreme of Idaho. Court lest, ing a to Mr. the owner of the sale 6, 1967. property, is that correct? June Through Tadlock, yes. “A. Mr. fact,

“Q. way you In that is word

your complaint that Mr. Tadlock was an defendant is that correct?

“A. Yes”. my opinion quoted provisions

In only 15(b) applied be

I.R.C.P. should clearly shows the

cases where record

parties fully try issues not did fact court,

pleaded in the trial all issues presented

should be to the trial court first appeal

prior any recognition thereof

to this court. reasoning the con-

There is sound behind holding refusing to de-

sistent this sub-

cide which issues have first court, opposing

mitted to the trial pre- opportunity

counsel not had an judge.

sent case a trial Even before compelling reasoning behind the

more

rule its own court should not of of, cognizance

motion take and decide cases

upon, counsel issues not raised either

Case Details

Case Name: Killinger v. Iest

Court Name: Idaho Supreme Court

Date Published: May 31, 1967

Citation: 428 P.2d 490

Docket Number: 9619

Court Abbreviation: Idaho