*1 intеrpret agreement unjust an to mean some- would attorney be to award fees on thing not the contract does itself con- appeal, attorney and also that the award (Citations omitted.) tain.” 82 Idaho at improper. fees trial court below was 109-110, 350 214. P.2d at The judgment by striking below is modified fees, the award of Here, attorney therefrom reasonability reading require- a as into modified is affirmed. non-assignment ment clause of this contract, the has reworded Court the con- respondent. Costs on contrary Simplot tract. This is v. Rehearing denied. Chambers, supra, which Court neither respects all Court adheres distinguishes, overrules nor but merely ig- 15, prior opinions its 1984. issued October nores. majority suggests that bilateral con- absolutely tracts which assignment forbid valid,
of the contract be ante at
1034, non-assignment but holds that a
clause conditioned on the consent of the implies reasonability
seller
requirement
a
subject
which is
approval
insert assignment. But complete restrictions Nov. 1984. validity majority opinion under Rehearing Dismissed 1985. Jan. up complete is still in the air. restrictions thing result only certain from this litigation be a lot of case is there will over buyers and sellers what the
between may think reasonable. this
courts is Since has set down standards as to
Court determining to be
what considered
reasonableness, such all determinations necessity ad hoc
must decisions. litigation every
This will no doubt assure requires
case. Such rule of law dispute
litigation every to settle does not
have much to commend it.
I dissent.
ON DENIAL OF PETITION ON
REHEARING
PER CURIAM.
On consideration and denial of the Peti- Rehearing now that it
tion we conclude
DONALDSON, Justice. Chief by plaintiff involves a claim This for against Mortensen defendant Chevron potato crop. damages to Mortensen’s 1979 following facts: arose under the potato During planted Mortensen irrigated sprinkler in five different seed from potato fields. The seed was obtained (1) from Morten- three different sources: (2) potato crop, from a sen’s own 1978 (3) grower, from Ferrell seed Canadian Black Ranches. purchased “Clean-Crop Cap-
Mortensen (a potato pro- Fungicide” tan 7.5 Dust seed tectant) retailer, Blair M. Geisler applied Supply. Farm Mortensen the fun- planted gicide to all of the sеed except that obtained from Ferrell Black. dry fungicide, which comes dust to the cut form that adheres pieces, applied planting. to the seed at was commenced his 1979 When Mortensen planting, atmospheric temperature was essentially plant- as the normal. continued, ing temperature increased dramatically. Shortly planting, after Mor- unsatisfactory plant emer- tensen noticed untreat- gence. planted The acres with the decay Black seed showed less ed Ferrell than the rest of the fields. purchased the Supply Farm had Geisler by Mortensen from the fungicide used Company. Snake Snake River Chemical “Clean-Crop Captan River formulated the under a Fungicide” Dust which is sold 7.5 The fun- Company label. Platte Chemical ingredients— mixture of three gicide was a earth), (fir (diatomaceous Silvacon Frianite dust), Concentrate bark purchased from Chevron. River Snake marketed and sold concentrated Chevron the name “Orthocide 80 Con- Captan under centrate.” Hawley, Babbitt, John T. Gary D. Kurtz, Jr., Troxell, F. Hawley,
John Ennis accepted common name for Captan is the Boise, Hawley, & for defendant-appellant, fungicide (trichloromethyl) organic N-[ crоss-respondent. thio]-4-cyclohexene-l, 2-dicarboximide. It Wood, Clair, Hiller, Theodore A.R. Kittleson and his St. was discovered Wood & McGrath, Chartered, Falls, Laboratories, plain- Idaho Chemi- for associates of ESSO Division, tiff-respondent, cross-appellant. Development cals Standard Oil Jersey. We first address Chevron’s asser Company of New Chevron produce, develop and granted denying a license to tion that the district court erred in the “Orothocide” distribute under judgment notwith Chevron’s motion and industri- agricultural trademark “A n.o.v. standing the verdict. al fields. there is no sub should be when support the competent stantial evidence to River, *3 originally sued Snake Mortensen jury.” Corpora verdict of Brand S. Platte, Mortensen and Chevron. Geisler 731, 732, King, 102 Idaho 639 P.2d tion except pri- parties Chevron settled with all (1981); Safeway see Mann v. against Mortensen’s claims or to trial. Stores, Inc., 95 Idaho 518 P.2d jury on Chevron were tried before (1974). liability, negligence only presented cause of action theories of strict trial, At Mor- gross negligence liability and fraud. the al jury to the was strict contended, expert wit- through his tensen design product Cap- leged defective fusarium, ness, fungal organism, that a against All other claims Chevron and tan. caused his primary pathogen was the have either been settled or parties fungicide “to- loss. He contended that the verdicts, Mor by directed eliminated rot in tally prevent failed to or reduce not raised on the correct tensen has and, potato pieces to the Plaintiff’s seed Therefore, directed verdicts. ness of those contrary, directly po- Plaintiff’s said caused we must examine is issue which pieces decay to rot and tato seed support jury will whether the evidence damage to caused serious and irreversible de liability strict for defective verdict оf crop.” Plaintiff’s 1979 sign. chief, At the of Mortensen’s case close there is some con- Initially we note that directed verdict on all Chevron moved for a a defective this case is fusion as to whether court of Mortensen’s claims. The district argument both design case at all. At oral negli- granted respect the motion with defective that this is not a parties stated fraud, gence, gross negligence and support of his effort to design case. liability upon failure to warn. strict based grant of a new reverse the trial court’s Thereafter, submitted the the district court trial, counsel stated: Mortensen’s rеmaining jury case to the on the allegation in Mortensen’s “There is no theory, liability based defective strict defectively de- complaint anybody design.1 returned a verdict in signed Captan. Mortensen. favor of entered, judgment After Chevron “ ‘[Captan]’ by a cou- was discovered ... judgment motions for not- filed alternative ____ verdict, ple It was not de- trial. of biochemists withstanding the or a new signed [by plant from a into a the motion for a court denied The district Chevron] molecule, notwithstanding organic fungi- verdict. As synthesized judgment trial, the district motion for a new cide. solely and exclu- granted a new trial court liability. The trial the issue of sively on “Now, again submit that the case is we concluding that the new trial design defect case because Chevron not a “unreasonably dangerous” element design didn’t it.” liability case for strict prima facie stated: Similarly, counsel for Chevron judged design defective must based nothing in the just “There’s record standard, “risk/utility” on which the by a truly indicate that this is— that would jury. instructed the Chevron court had not design. that there is a defective That’s the denial of not- appeals tough analyze why it’s a because
withstanding the Mortensen cross- verdict. design defect case.” trial. it’s not of a new appeals from on defective manufacture. based claim of strict never asserted 1. Mortensen in which it was Captan change indicates that was dis- the condition The evidence sold.” Oil Laboratories covered Standard way “designed” and that no Chevron DEFECTIVE CONDITION fungicide involved this case. presented at There was no evidence general three Regardless of which of the sold trial of the condition liability a case falls categories of strict Morten ultimately reached Chevron defect, design de- manufacturing under — did concedes that Chevron sen. Mortensen fect, to warn—there are certаin or failure Cap- design the chemical structure must be met. 2 L. Frumer elements which question con tan and that the § Friedman, Liability & M. Products 16A[4] accepted chemical structure formed to the (1984); Prosser, W. Handbook of f[i] product. Proof of malfunction of that § (4th 1971). Law of Torts Ed. Section injury causing direct (Second) Torts, 402A of Restatement could, circumstances, pieces under certain *4 adopted by
which was
this Court Shields
evidence of the defect
be circumstantial
674,
Co.,
v. Morton
95 Idaho
518
Chemical
product
at the time of sale. Farmer
(1974),
P.2d 857
states these elements as
Co., 97 Idaho
International Harvester
follows:
742,
(1976).
P.2d 1306
Liability
Sрecial
“402A.
of
of
Seller
rule that evidence of malfunction
Farmer
Physical
Product
for
Harm to User or
is circumstantial evidence of a “defective
Consumer
plaintiff’s
only applies
condition”
where the
“(1)
any product in a de-
One who sells
proof
possibility
other
has excluded
unreasonably dangerous
fective condition
likely
“reasonably
causes.” Id. at
proper-
the user
or consumer or to his
case,
present
P.2d at 1313.
In the
ty
subject
physical
harm plaintiff’s evidence did not exclude other
thereby caused to
ultimate
user or
likely
reasonably
causes.
consumer,
property,
or to
if
his
pri
Plaintiff’s evidence consisted
“(a)
engaged
the seller is
in the business
marily
expert
testimony
of the
of Dr.
selling
product,
such a
Douglas,
opinion
who testified that
his
“(b)
expected
it is
to and does reach the
product
applied
which was
to Morten
or consumer
user
without substantial
potato
pieces
sen’s
inhibited the suber
change in the condition in which it is
potato
process
ization
seed. This
sold.
opinion
upon any experi
based
was not
“(2)
(1) ap-
The rule stated in Subsection
by
Douglas
or studies conducted Dr.
ments
plies although
suberization,
Captan
on the effects of
“(a)
possible
the seller has exercised all
upon any
nor was it based
other evidence
preparation
care in the
and sale of his
tending
Captan
harms the
show
product, and
Dr.
process.
suberization
The basis for
“(b)
Douglas’ opinion
right side of
was that the
the user or consumer has not
one of Mortensen’s fields which had not
bought
product
or entered
into
Captan
was not
been treated with
7.5%
any contractual relation with the seller.”
any
degree,
measurable
while
infected to
case,
Applying the above
to this
elements
using
portion
seeds which had been so
we hоld that Mortensen has failed to show
infected.
treated was
(1)
by
that the
sold
Chevron was
Farmer,
prima
unreasonably
a “defective condition
dan-
Under
“[a]
facie
sale,
proved by direct or circumstantial
gerous
may
to the user” at
time
(2)
product
expected
that the
and did
of a malfunction of the
evidence
of evidence of abnormal
reach Mortensen “without
substantial
and the absence
naturally
entry
foreign
process
inhibit the
2. "Suberization" is a natural
in which
tends to
organisms.
harden,
dry
cut
seeds
and heal over
portion
cut
seed. Suberization
had
and the absence of evidence of reason- was there
evidence that Chevron
use
secondary causes which would elimi-
any product
able
or sold
contain
ever marketed
liability of the defendant.” 97 Idaho
nate
competent and
ing fir bark. There was no
case,
The evidence established design or nothing either with the circumstantial a defective evidence of “defective product. How- the manufacturer condition” and that it did not exclude the establish, ever, the evidence did and “reasonably likely possibility of other caus- found, temperature under certain that premise majority es”. From that con- conditions, product would and moisture Douglas’ testimony cludes that Dr. provide fungicidal pro- not fail to pre- product, under the climatic conditions tection, pieces cause the seed but would vailing, inhibited the suberization of the decay and rot. pieces proof not of the cause of was pieces. Certainly of the seed failure Therefore, the issue should have been testimony totally proper and the negligently failed to whether Chevron jury’s findings, with that testi- consistent neg- сonsequences or warn of such adverse mony, necessarily possible ruled out other “system” ligently failed to test total not causes. This Court should overturn varying temperature field and conditions jury’s finding upon of fact which is based moisture. competent substantial evidence. pleading Mortensen’s initial included object reasoning causes of action for failure to warn and for While negligence. The trial court Chev- majority opinion and of law ex- statement ron’s motion for a directed verdict at the therein, I pressed must concur result grounds close of Mortensen’s case on the prеviously for the reasons stated. fraud, negligence, gross negligence, and liability strict based failure to warn. Justice, BISTLINE, dissenting from the Mortensen did not opin- majority concurring part precluded therefore is achieving relief Huntley, ion of J. appeal. on this Products cases are without doubt The trial court submitted the case to the complex judges for the trial difficult jury instructing theory on the of defective them, attorneys who first deal with design. Although this is defective appellate courts and no less difficult case, design jury may have reached the considerably though blessed *6 evidence, right result based on the the in- that more time in which to reconsider notwithstanding. structions transpired Certainly, as which has below. disagree majority with the when it at- task, prior opinions, I have remarked in our tempts by to exonerate Chevron erroneous- difficult, though pressured is not as no less ly asserting that it merely produced and rulings judge a trial has to make on as the marketed a chemical for use in a vacuum. Yet, spot. spacious the even in the amount prod- The fact is that Chevron markets its has our atten- of time this case commanded part “system.” uct for use as of a For tion, been able to the five of us have nоt years products it has followed its agreement. jury reached a come to an through agricultural field contracts with The district in favor of Mortensen. verdict experiment stations and observation of ac- however, that the case judge, concluded applications. majority tual farm For the to failure in- because of should be retried premise its in this case the “risk-utility” jury the on a standard. struct understanding that the manufacture and ruling was correct or incor- Whether marketing system of Vsof the is attrib- rect, that in we all know the time which has to Chevron is to be blind to what utable had, gone by a retrial could have been and place developing, real takes world of been, likely trial the second would have testing, marketing, applying agricultur- and beast, of the nature of the more because products. al tried, quickly smoothly perhaps and and And, majority error-free. we all know that under cites Farmer v. Interna- Harvester, 742, system right the federal there exists no tional 97 Idaho 553 P.2d (1976) trial; proposition appeal grant from the of a new 1306 hence 842 fettered, place, agree takes that we are so and
the retrial once
If not immediate-
ordinarily
particular
guided by
in short order.
thе statement of a
am
ly,
long
it
for certain be over
before
will
v.
unanimous Court
Archer
Shields
disgruntled party
gone through
has
Co.,
861, 868-69, 434
Lumber
91 Idaho
very complex
ing.
while thus
which Chevron has obtained.
court and counsel remained alert
fresh in the minds of the witnesses and the
while it
tion for
have done so
of the second trial while the matter was all
mediately proceed with the second trial
expected
new
has
trial,
rules is that Chevron can move for a new
time-consuming appellate process in at-
tempting
ron’s
der the rules
new trial.
I.A.R.
ron.
sen would
proceeding
plaintiff
appeal
obtained, put
trial,
be awarded a new
All of which
And it is
appeal
11(a)(4).
appeals
to overthrow the
where otherwise he
here was first taken
It
naturally cross-appeal.
delayed,
challenge
Mortensen of
appears
law which
promulgated by
with the
understandable that Morten-
favor of the lesser
from the denial of its mo-
The net result
recognized
n.o.v.,
brings
to be
Mortensen could be
controversy
all
new trial which
trial, and,
thereby depriving
granting
me to
had been
his
permissible
of course that
right
this Court.
Naturally,
by
say
expense
on hold
instead
study-
Chev-
Chev-
two
im-
un-
P.2d
jurisdictions. See Mclvor v. Mercer-Fra-
son, Inc.,
sеr
This
P.2d
Royal
(1952);
Brown Bros.
[91]
Idaho
249,
108 Utah
95; Boise Association
dence and the erroneous instructions.
where other evidence is abundant to
eration the
berg,
ify
that even
This
damages
mitted to a
Tarr v.
tions thereon have been
such errors will be held
79,
the verdict without
Company,
256 P.
principle
Idaho
28
192,
86-87
Insurance
Clawson
Oregon
Idaho
(1946);
have been
has
126 Mont.
though
93 P.
523,;
[199],
jury
(1967):
erroneously
is also
Co.,
ries—which discarded the trial 54(c) provides Rule that the trial ... Unfortunately, motion. court on Chevron’s grant court “shall the relief to which Huntley’s opinion, he does as read Justice party in whose favor it is rendered is that Mortensen’s verdict at the not believe entitled, party even if has not de- upheld can be because hands pleadings.” manded such relief in his prevailing Mortensen did not Thus, error, century trial after rulings keeping adverse in mind those — point arrived at the where at we have rulings those adverse did not hurt him required are least the trial courts jury’s right either with the view of his grant party the relief to which a is enti- recover, or the trial court’s view of his proved, he has by tled the facts which (Here, right to again keep recover. mind regardless may of how the matter have trial court’s of a new trial to pleadings. presented been solely Chevron was because the court peruse ... need the decen- [0]ne thought in fairness Chevron should Error, Appeal Key No. digests, nial had the “risk-utility have benefit of a stan- legions seq., 719 et to see the of cases instruction.) dard” appellate disposed and issues time From to time I have remindеd the merits, courts, not on their but members of precedent the Court of parties or their counsel failure my mind is superior far *8 procedural comply with some technical requiring rule cross-appeals Court’s nicety. things of the first which a One Furey, these situations. Rábido v. 33 appellate judge learns is how to new (1920), P. Idaho court which dispose of an issue or a case without promulgating rules dealt little but which confronting the actually issue on the long logic common sense and said on merits____ was taken from the this: “Since thereof, judgment, portion and not from a 54(c), ask, any appeal Rule and on aрpel- have the follow
Why, one judgment, proceed to evaluate the en- States adhered late courts of the United technical, situation, attempt up waiv- tire to come with tenaciously to such a so philosophy justice resorting type dispositional substantial instead of er-oriented exempli- foregoing quotations niceties.” “technical inertia____ course, reason, is fy? One my part, For and the least which would However, though pro- a new ... case, fraught in this with convolution do greater judicial ef- may require cedure court, progressing the district into con- cases, the in sоme resources fort and Court, regard in this and with due vulsions goal any judicial first and foremost difficult nature of the case and its for the justice is ren- ought to be system thereupon is to remand to re- complexities, case, how effi- and not given in a dered verdict and the instate the are decided---- ciently of cases numbers suggest thereon—which is to also entered judicial be obvious that ... should not, time, my [I]t vote is to at this embrace litigants, serve not systems exist “risk-utility” standard. any consideration judges, and given If some additional time for reflec- ought or procedural rule to be whether tion, hope I would that the оther members litigants promotes not it is fair to the changing me in join would Court justice____ substantial such appeals allow situations rules which always closer as this where the trial court— concept law re- ... old common [T]he counsel—has anyone than but to the case Court, at mains nevertheless retrial. fit and mete to award a And seen discretion, may disregard an issue its so, gratified more the bar would be to see determinative otherwise be which would appeals processed with a view toward sub- party the brief of of the case where proce- justice stantial and less obeisance to review, if the present it for does not Rábido, knowledge, my To dural niceties. And, if the inter- feels so inclined. Court interred, but is the supra, has never been require that trial courts justice ests of in lieu of apply should precedent which we party in “shall the relief to which a sandbagging rule of cross- cumbersome entitled, rendered is whose favor appeals. demanded such party even if the has not pleadings,” relief in his it is difficult why appellate courts should
see required____
also be so present stat- under the
... utes, the Idaho precedents rules and P.2d 1046 Court, many are never Supreme issues BONE, Plaintiff-Respondent, John supreme ap- by the considered сomply of a failure to peal because Mueller, LEWISTON, Gene CITY OF during rules procedural technical these Havelin, Shinn, Leonard Marion James perfection course of the trial and the Williams, Douglass Peg Haas-James appeal. MacKelvie, and Marlene Schae “Pat” J., Bakes, Ev- Appellate Procedure —An fer, Defendants-Appellants. Backwater, 10 Idaho L.Rev. olutionary added). (1974)(emphasis 117-124 No. 15002. article, clear and the tenor of which is Supreme Court of Idaho. comments, make fails to requires no 10, 1984. Dec. has problem real
mention miscarriages caused perplexed bar cross-appeal. taking of a justice —the is to philosophy of the article Clearly the