Penrose v. Commercial Travelers Insurance Co.

52á P.2d 275 969 issue, judgment warrants Mfg. Peterman Hewson v.

dismissal. PENROSE, Plaintiff-Respondent, Wayne C. N.S., L.R.A., 1158, 600, 51 136 P. Wash. 76 v. . Ann.Cas.1915D, 398, 346 INSURANCE COMMERCIAL TRAVELERS COMPANY, corporation, judgment not reverse a Courts will Defendant-Appellant. purpose of merely for the for a defendant' No. 8129. dam of nominal recovery permitting the and no question of costs where no áges Supreme Court of Idaho. rights are involved. important' of substantial 1004; C.J.S., Appeal 29, Oct. 5 559, Sec. 3 Am.Jur. cited Error, 1914, p. and cases 1415 § 73; 3211; Erick Sec.

in note C.J. Hudson, Wyo. 249 P.2d

son v. Co., 127

523; Union Tel. Edd v. Western 895; Martel Hall Oil v. P.

Or. Wyo, 253 P. 255 P.

Co., 36 91; Spade, Stewart v. 157 Neb.

A.L.R. 841; Harmony Co. v. Ditch N.W.2d 1, 222 P. Reed

Sweeney, Wyo. 20, 213

Voss, P. 730. 89 Okl. dispute case no in this

There ownership of plaintiff’s

relative crops oi; growing right

land presented decision matter

thereon. actual was the amount of court trial

to. wrongful because sustained

damages important principle nowas There

trespass/ right involved other than substantial damage. It follows of actual

amount must affirmed. Costs judgment .

respondent, ,PORTER, GIVENS, J., ,TAY- C.

.LQR.and THOMAS, JJ.,.concur. Pocatello, Merrill, appel-

Merrill & lant. Pocatello, Anderson,

Anderson &

respondent.

THOMAS, appertaining D policy Part Justice. monthly provides sick benefits as follows: Plaintiff, re- hereinafter referred to as spondent, “Confining (1). instituted an action to recover If such sick- Sec. payments an monthly sick under wholly benefit Sickness ness shall and con- Novem- him policy tinuously issued to In- insurance disable the defendant, performing hereinafter ber sured from appellant. matter was any every duty per- referred to as jury. the close before a At taining tried his business or for non- appellant a motion occupation, evidence made and shall nec- a directed respondent for essarily continuously suit and moved whereupon discharged the verdict, court him within the confine fact, conclu- findings of jury and made its house, Company will re- judgment for law and entered sions pay the Sickness benefit of. respondent for judgment spondent. per From at the rate month $1,700, with together attor- specified in the sum of APart . costs, neys’ in the sum of $500 fees Sec, (2). Or, “Convales- for appeal was taken. period exceeding cence not one facts material parties treated the month, immediately Both fol- Clause dispute effect without confinement, as lowing -said jury and it was for the was no there issue non- or reason of case decide the proper the court during confining sickness undisputed facts and the upon material which the Insured shall applied thereto. law to be wholly and continu- per- ously from - disabled questions sub- , two decisive There are forming ' any and piitted appeal: First, court on before this duty pertaining respondent within .comes or .whether occupation, or business -1 of D, provisions Part section . Company pay will confining house reference to with Sickness benefit at , D, with section ref- ,pr. Part sickness 2/ per specified rate month clause convalescence there- the. 'iéreñce to A in Part under the terms 'secondly, whether n of). under this policy respondent, “Provided benefits jthé (cid:127)of \insurance .the, paid in not be excess of attorneys’. shall allowed fees Part : whom- c.ourt regular ¡of under the the Insured is .$5.00, time in thel.suni .to .entitled' at- physi- qualified legally of a Chapter 289, attendance Session fees under torneys’ payable surgeon and 'benefits cian Laws shall of commence after one dis- week that no due, is justly amount then no ability.” such attorneys’ may fees be recovered. “Section provisions 2. The of this I, Paragraph Part of Miscellaneous apply any Act shall not to action com- provides: Provisions also menced before effective date phrase ‘regular “The of attendance hereof. qualified physician or legally a sur- “Approved March 1951.” geon’ herein, shall used be as defined of, personal to mean visits or treat- Respondent a farmer and livestock physician ments at once in least raiser, farming approximately 575 acres days.” seven of Cambridge, Idaho, land at which is three May miles north Downey, of On Idaho. Chapter Laws, page 621, 1951 Session 3, 1952, respondent attack, suffered a heart pertinent provides part in as follows: diagnosed coronary as occlusion, and was Any corpora- company, “Section 1. hospital confined to the Downey at from * * * tion, issuing any policy, May 5, 1952, year, of the same June * * * * * * insurance, of under order of the doctor who attended any whatsoever, kind or nature which him at all times thereafter to and includ- pay person, shall fail to to the firm ing the time of the trial which was held corporation or entitled thereto the day on the October, 5th justly policy, amount due under such Upon hospital his release from the and contract, shall, certificate any or pursuant to the directions and orders of his action in court in this state for physician attending he was taken to the recovery under the terms of such his days home of father for week or ten a policy, contract, pay certificate such continuously where he was confined, and further as amount the court shall ad- was thereafter moved his own home. judge attorneys’ reasonable as fees pursuant Under action, and such action. In such terms if policy appellant paid respondent alleged it shall be that before the $300 period thereof, he hospital commencement was confined in the tender of later him justly full amount due an was tendered additional made $200 person, corporation period firm or for a of one month under en- the con- thereto, thereof, titled clause respondent such amount valescence which be thereupon deposited accept. court, refused to has a total $2,QQ0; allegation true, payments if the be found limitation on to be hence or if respondent determined such action could re- maximum the month attended church until sometime in the rate additional, at $1,700

cover one and thereafter attended October one- eight and next month for $200 felt Sunday he on each whenever service from his release following months half he strength permit. would Whenever including Febru- is, up hospital, apparently see his doc- Downey, went to ary reason, tor, any the record if other or for from his release three after About weeks or the being very as the time indefinite to July of hospital neighborhood in the the or except to trips Downey number of to excursions for limited he left the house 1st drop doctor, occasionally his he would visit down; would sit where he on the lawn out sit few minutes’ visit in and down a with instructions reference gave times he at business with friends. sons, one 12 work to his two farm a horse and On he sold October age years the other 14 years age and pasture for a that time out in the at was trial; the record indicates at the time boys his period of time while two were brief heavy farm work was that much of the he to barn- catching'the horse which led the father, respondent’s other rela- by done month the yard. Again, that same he set friends, boys neighbors tives, and as simple task, drill, very and so grain easy a carry responsi- young to on too were boys his could drill the fall wheat. ; fixed bility the time not with while respondent go would to definiteness, October, 1952, respond- In the month of family in the a while Downey once in party, by accompanied traveling another ent by usually driven his wife was car which Utah, car, Logan, where he had a brief to himself; his doctor infrequently and friend, away home being a from with visit home at four calls and or at made three hours; occasion, on few one time but a the office of the went to times he other all fixed, he being went Pocatello with car, family his wife driven doctor in Christ- neighbor; just before a sometime occasions; the doctor’s he went to most him to in the his took Pocatello mas wife week for about two once a office least at they she drove and while family car which thereafter, months; during the balance of his sister for about there he visited were under he confined it claimed was the time home; they returned hours before three policy, confining clause the house request at the of his on December exactitude, he being with fixed no dates doctor, Lake to a he went to Salt see heart doctor at least once of his the office went to days, two gone and was specialist three month. a of his aunt home and in her staying at the His wife most time. accom- affliction, respondent house attend- to his Prior him, doing driving all the in the panied regularly and active church ed car; February 10, 1953, family again on he work; he never his affliction after church banquet in with gradual Pocatello. 4-H Club attended a increase of activities there- accompanied neighbor after as strength he his per- this occasion and health On would parties. mit, including of both advice go the sons out in the air and get exercise; experienced mild he had March, February and months In the any change physical little if in his condi- in the field some his tractor he drove from hospital tion time he was in livestock; his fed the days his wife while the time of in 'October, the trial in connection with work wife did all the except time during this feeding stock From the record there is no doubt consumed efforts driving tractor. These respondent wholly that the but affliction of respondent’s time minutes of about ten continuously per disabled him from tractor. days he drove the during the forming duty pertaining to occupation farmer; as a might while he spring early Sometime personally be able do trivial and minor or after before either have been could things, required neither much time fixed, 20, 1953, being date not February exertion, physical others, nor and through a bank in apparently made one visit he supervision acting direction, under his of his the sale Downey with in connection accomplish heavier tasks requiring physical previous crop of fall. effort, ordinarily which he could well have beyond period is May, which In prior himself affliction, done does by policy, period covered questioned not mean that he is not disabled within the on the federal respondent was summoned policy; terms and intent of the this is es Pocatello; to Poca- he was taken jury at pecially things so when the which he could was, because of his by and wife tello his substantially not do constituted all the duties jury health, from service. excused occupation of his as a farmer. Great Casualty McCollough, Northern Co. v. that re- every occasion practically On Ind.App. 506, 174 N.E. 103. house, particularly on left his spondent question There remains to town or whether or he went when occasions those disability compensation not his should be Idaho, Utah, or Pocatello, Logan, Salt to denied for the reason that he left the knowl- con- Utah, with the he went City, Lake his fines of four walls of home for physi- the rea- attending approval of his edge and occasions as sons and outlined here- he be- at time advised him cian who continuously rather confining in than him- and at thereafter that times afflicted came period house self within his for entire from farm work in refrain he should months eight following and one-half pre- his heavy goes work and far as as hospital, from the and for the release fur- to his bed and to confinement scribed the doctor did ther teason that not visit the first six period of months home him him personally treat least once tinuously house”, at confined within "ne- days. cessarily house”, in seven confined to the “neces-

sarily, strictly, continuously confined hóuse”, appellant many that urged by pro- It is other similar visions, unambiguous and of insurance some (cid:127)contract is less strict and some more interpretation; policy question; that room for strict than the innumer- there no construed unambiguous it will be able cases have before the in- being been courts volving so This court has such clauses and the are as other contract. decisions by no Maryland Casualty v. Boise means harmonious. See the exhaus- held. Co. A.L.R.2d, commencing tive annotation in P.2d Street 52 Idaho Car page hand, at com this court has also On the other with reference mitted itself to the rule policy before court was policies that in instances where insurance respondent 15, 1945; issued to on November susceptible than to more a clause therein preparation its phraseology doubt no oneconstruction most favorable the one are result work of skilled counsel adopted, such con will be to insured employed by appellant acquainted who were be construed of their tracts will view with the decisions of the numerous courts pre objects and the conditions general jurisdictions of various which were re up rather than the insurer based scribed prior published leased and to the issuance interpretation. technical strict and on a policy. Many appear of such cases Co., 65 York Life Ins. New O’Neil v. in the annotation 29 A.L.R.2d. It fol 722, 152 P.2d Rollefson v. Idaho appellant lows that when issued Brotherhood, 64 Idaho Lutheran respondent aware of the it was construc it is this connection P.2d 758. In tion which numerous courts of last resort appellant strongly although the noted placed upon had only phrase the exact ambiguity, absence of there is an .asserts ology employed phraseology but policies, clauses other or similar like import. of similar It likewise knew that been construed other

'many which have by any such decisions were not means har ' urged courts, support by respond the view and that ambiguity monious hence an ex jurisdictions many ent; because so have particular question isted and that had similar like or clauses construed adverse presented never been but was one of first appellant, by the contentions advanced moreover, impression court; in this at the they-deserve and will receive our serious time the instant this court issued ‘consideration. committed itself the had rule of a con provisions are found in such struction to insured and re Similar favorable .had n policies interpretation. requiring the be “con- jected insured to a strict technical Co., presence non-confining Ins. or absence of a v. New York Life O’Neil Maryland clause; rejected have 152 P.2d 707. See also where courts Idaho the Co., supra, Casualty a where v. Boise Street Car literal construction instances Co. they present appears both cases therein set forth. clauses are the .and have applied the doctrine of substantial annotation of cases the A number cited A.L.R.2d, p. confinement. § A.L.R.2d, others, have con- well as as 6, pp 1425 & § literally the house clause confinement strued majority In jurisdictions the recovery where any the insured and denied directly expressly courts have either at time and for left house Tiehas the by implication rejected or the literal con- reason, possible exception the with entirely struction and in lieu thereof have emergen- leaving the house because of some adopted applied a liberal construction. beyond category cy his control. In this A.L.R.2d, p. § found instances where insured was will be to leave the because of flood forced house many jurisdictions In permit- which have n orfire or other catastrophe. 29 A.L.R.2d placed recovery ted the have great courts In p. 1413. some of the cases -§ emphasis nature of on the the illness or applied the literal construction to have disability other rather than on the extent exceptions also respect have clauses this confinement, reasoning pur- that the departed made has where insured "been pose the house confinement provisions therapeu- the house on occasions for from character, degree is to or describe ex- 1428-1437, A.L.R.2d, 8, pp. tic reasons. 29 § disability tent of the illness or rather than 10, p. 1439.' (cid:127)§ upon the a strict limitation insured’s con- , jurisdictions presence invoked, or theory In some duct. Where such has been non-house convalescence or if disabilty .absence illness or insured’s is of in- confining appeared clause also has. nature as such a to confine in- serious upon placed and sured, generally the construction fluence commonly one or re- house confin- made of the garded confining, as then an so application, occasional clause; in- ing where has been departure the court from house does not take presence fluenced the additional protection outside of the insured confining or non'-house convalescence policy; where condition exists the clause, it has been the housé disability reasoned that sufficiently insured’s illness is confining given clause must in- a strict him substantially severe to confine all of terpretation give in order to full effect particularly pointed the time as is- out in meaning confining to the non-house Washington clause. the case of Purcell v. Fidelity Other jurisdictions have held that house 146 Or. Nat. Ins. 30 P.2d 742. confining clauses are not also affected See National & Health Accident

534 and de- reasons, definitely while fixed not Philadelphia Ohio Mergenov, 49 v.

Co. of record, Fidelity gen- in a termined from the does 248; 353, Donlen v. App. 197 N.E. aggregate way reveal that the time N.Y.S. eral Co., 192 Casualty & 117 Misc. represent any but part, Ac did not substantial 513; Health & Wade Mutual Ben. v. 611; insignificant part, of the more or less an S.E. Ass’n, 177 cident 115 W.Va. period; plain trips that the to Accident total Health & Albert v. Mutual Ben. Pocatello, Idaho, Utah, 321. Logan, to a few 268, A.2d one Ass’n, Omaha, 38 Pa. 350 trips Downey, Idaho, attend- occasional recovery has where jurisdictions In some Sunday, ance at one church on com- service has de insured although the allowed been October, 1952, mencing in and the time reason, the for house parted from lawn, spent yard, in his and driv- proposition advanced have courts ing period tractor for a of some ten merely clause confining house that days for in the month of minutes several cer with to establish evidentiary, designed por- February, represented a minute disa totally was insured tainty period some- covering tion of time Cir., Steele, 8 v. Life Co. Colorado bled. eight one-half He did months. Glass Plate 448; Metropolitan 101 F.2d ignore, disregard lightly the- consider Ex’x, 150 Hawes’ v. Casualty Ins. Co. & clause; provisions house such confinement 700; L.R.A.,N.S., 1110,42 Ky. 149 S.W. do not mean absolute and indubitable con- Ass’n, 70 Protective Masonic v. Scales practical intelligent straint but a re- Surety 1084; Co. Federal 490, 48 A. N.H. house, maining considering within the 312; Tex.Civ.App., 297 S.W. Waite, v. nature of his Albert v. Mutual Ben. illness. Brock, Tex. Co. v. Accident Standard Ass’n, Omaha, Health & Accident 350 Pa. However, this 1 Civ.App., S.W.2d 268, 38 A.2d 321. See also the recent case- other cases. rejected in theory been has Bassett, Ala. of Franklin Life Ins. Co. v. Ass’n, Mut. Acc. Massachusetts Dunning v. App., 64 where the court held' So.2d 535; v. Bruzas A. Peerless 59 Me. 99 specifically question that it is a of fact 199; Co., 89 A. Casualty Me. jury whether or not insured was- Life Ins. Columbia Nat. v. Lieberman in the house under a clause strik- confined 276; Ridgely Pro Pa.Super Stahl v. clause ingly similar in the instant- Ass’n, Pa.Dist. & Co. 719. tective case, although fishing- the insured went week, a sometimes twice went to church oc- respondent total hours reunion, casionally, family went to also- during eight his home outside funeral, spent nephew’s days ten at a. after months his*release from the one-half lake, went the doctor’s office for treat- time hospital, exclusive of the he was ab frequently therapeutic went for primarily for ments and a ride therefrom sent Life Franklin fused. Even evidence in the viewing also See an automobile. Ala.App. 313, light most Lewis, appellant So. it would favorable v. Ins. Co. appear Health & physician Mutual Ben. visited or treat- Brandt 2d respondent ed Ass’n, Tenn.App., “possibly 202 S.W.2d once week” Acc. for the first two months after he was re- leased from hospital the that and thereafter great with the in line hold We he saw him at month least once a at his long as the so that majority cases Downey, office at Idaho. The tes- doctor continuously dis wholly and insured was tified in this connection in substance that duty any and performing abled from particular there was anything not in he occupation farmer as a pertaining to his respondent could do for other than ad- and the evidence found (which the court vise him program with reference to a of home ex leave his not and did supports) rest and to working. refrain from other than reasons therapeutic cept by this disclosed occasions brief on a few Such visitations or treatments often- substantially confined to his record, he was er, under testimony the of the attending such illness that of reason home physician, required were not and would be compliance sufficient such constitutes useless, futile unnecessary and an expense provision of confinement with the house respondent. Among purposes the of this that must hold there policy; further the we requirement in light the of the primary under compliance house the be substantial object purpose intended to be served as a condition of re clause confinement by the issuance of the insurance policy insured, having met this covery the that would be its evidentiary as an value aid to rea there are no other requirement, if establish good faith of the claim and had, not recovery should why sons the extent and duration of the disability; bewill affirmed. the court of judgment again, provision such designed is guard against possible fraud; here there is no respondent that did asserted is further It claim of bad faith or fraud nor serious provisions within of himself bring question as to the nature and extent of Paragraph 5 of Miscellaneous I, Part disability; even though the require-, insurance contract be- Provisions ment continuity connotes it would be im- regular not under at- was he cause practical and indeed almost an impossibility physician who visited him aof tendance limit treatments or visitations to pre- him at least treated once personally or cise intervals of time. days. The evidence on this every seven heretofore held appar- uncertain and is We have quite it matter requirement with reference doctor, testifying while without continu ent the house records, office con- ous confinement within met of his was if benefit Appellant compliance with this has cited the case Lusten there' is a substantial compliance Co., Casualty berger requirement. A substantial v. Boston 300 Mass. 1055, requirement at 115 A.L.R. of visitation N.E.2d with the' there, position support been a fail physician has likewise of its was of a tendance par comply in this treat ure to visitation or the evidence adduced with the met under supported by a provision the.policy. In that case This view is ment ticular case. all, principle the cas but not that a majority, recognized the court substantial upon passed physician this matter. provision requiring have care of a es which Casualty continuity Co. McCol it Northern v. and that would be Great connoted 103; Ind.App. 506, precise 174 N.E. Na inter impossible lough, to limit as Patrick, time; 28 Ohio Life Co. v. vals of however that case the tional 680; continuity Mutual Ben. App. 162 N.E. facts reveal that was no there Bunting, 133 Ass’n v. Health & Accident of visitations or treatment 321; Bishop United upon v. ground 183 So. which the court denied Fla. one App.Div. Co., Casualty recovery. States 176; Life Provident v. Melancon N.Y.S. Equitable Life Again, the case Assur. 1055, 147 So. 176 La. & Accident Ins. Burns, Ky. 71 S.W.2d Soc. Brown, Casualty Co. v. Inter-Ocean support appellant of its cited 333; Provident Tex.Civ.App., 31 S.W.2d position, readily distinguished. is In Shull, Tex.Civ.App., 62 S.W. Ins. Co. v. was case there no evidence whatever of 1017; National

2d American Ins. Co. v. physi- any treatment or visitations a 491; Da Tex.Civ.App., 70 Briggs, S.W.2d particular injury. cian for the Co., 129 First American vidson v. of Ben. Health & Ac In the case Mutual 144; American 184, 261 North Neb. N.W. Cohen, Cir., 232, Ass’n v. 8 194 F.2d cident 395, Henderson, 180 Miss. Acc. Ins. v.Co. appeals simply of the federal circuit court Casualty 528; Federal Hunter v. So. 177 .given applied the construction effect 474; 223, 191 N.Y.S. Co., App.Div. 199 previous policies which had been insurance Accident Massachusetts Harasymczuk v. in of Missouri ly applied the State where 97; 344, 216 N.Y.S. Moore Co., 127 Misc. had law of Missouri been involved. in- the Co., adopted 245 Earlier, Insurance Accident had literal v. Standard Missouri provisions-, 300; Line Life of the of such in Emerson Old construction Ill.App. - n Ins., surance contracts. 169, 793; 208 N.W. 190 Wis. Casualty Co., National Rechtzigel v. Appellant also contends that the .court 302, 173 670. See also 45 - N.W. allowing respondent attorneys/ in Minn. erred fges Insurance, 899, p. action. The court at- 985. allowed § C.J.S. action company, where an any insurance Chapter 289 of pursuant to torneys’ fees judg- successfully prosecuted to insurance filed and The Laws. Session the 1951 The for re- 1945. court in this state November ment issued herein, May policies covery on its issued of insured occurred affliction attorneys’ im- payment statute reasonable that the It is contended 1952. upon liability poses new and additional fees. pre- parties to a

appellant, one of the particular question presented is one The penal in contract, it is and that existing although it impression in this state of first as im- unconstitutional its and is nature upon in passed considered and been has existing con- an pairing obligation however, particu- jurisdictions; other Con- in violation Art. Sec. tract recently lar statute was considered of the of Idaho. stitution State upon A. passed by the Honorable Chase Idaho, clearly question Clark, intended Judge The statute Federal District However, un- it is not to be for Use and retroactive. in the case of United States merely is retro- constitutional because it Iron Benefit of Midwest Works Steel Law, D.C., F.Supp. spective. C.J.S., Henly, In Constitutional 928. Co. v. § p. this statute it is rendered unconstitutional the court held that that case impairs obligations, legislature under its in- if contractual violates enacted power process rights. police did not violate Art. due vested herent disturbs .or States, Law, 416, p. C.J.S., the United Constitution of Sec. § Constitutional Again,.if-such retrospective only may enact- provides laws affect law no .procedure impairing obligation of a contract. for the enforce- ed remedies .or they existing rights do not violate ment-of harmonious, are the authorities While provisions against the constitutional majority of the cases which this Impairment obligation of contracts. presented has have held that question been C.J.S., Law, 418, p. Constitutional § of such statutes constitutes the enactment police power to insurance relates exercise particular statute valid prescribe state; although costs and power to such the in this carried on business retrospectively operate this does not public they interest affected with businesses impairing unconstitutional as in rela render them private rights of contract the- Spicer of the obligation contract. v. subjected to the and are must be tion thereto Employees, Ry. 142 of Or. power by Benefit Ass’n police of the exercise- 'the valid 187, 1107, 574, P.2d 90 A.L.R. P.2d 21 Lloyds 17 v. Intermountain legislature. Co., Cas. 197 v. Continental 517; Buckles 304, It Diefendorf, 5 P.2d 730. 51 Idaho 184; Lane 476, 252 P.2d 128, P.2d 251 power vested Or. police inherent under the Enginemen, of Locomotive Brotherhood subject fit to v. legislature that it saw in the 538 minished, 667, obligation but

etc., 1396; Germania 157 Or. 73 P.2d in parties affected Ariz. to each other is not Bally, 19 of New Fire Ins. York v. Co. in 580, 1052, 488; slightest degree, as' was said Dowell v. 1 A.L.R. 173 P. Co., 675, rel. Pullman Co., 38 N.E. v. Paving 138 State Talbot Ind. [ex Coleman] 664, 670, 319, Walters, ‘Nor 13 Kan. 321. 389; Lake Erie & 75 P. R. Co. v. 90 W. 465; County Kos statute which affects Ind.App. 275, does 41 N.E. 305; obliga 508, impair its Wallace, of a contract 60 15 N.W. value suth v. Iowa 684, contingencies to Case, It is one of 180, N.E. tion. 278 179 Ahmed’s Mass. making in 669; parties Mass. look Case, Butler’s 278 which now 79 A.L.R. Case, 690; 218, large contracts, they may 278 179 N.E. Norman’s class of 885; 464, 238, many ways by A.L.R. 180 N.E. 82 be affected state Mass. Stewart, 21, N.W. Minn. 77 legislation.’ Perkins v. 75 national Whit Curtis v. 387, Smith, 434; 68, P. 70, Bullard Mont. 72 ney, v. 28 13 Wall. 20 L.Ed. 513. Co., 761; Bonding 102 Reed American v. right appellant’s to enforce contracts L.R.A.1918C, 63; 113, 196, Neb. 166 N.W. undisturbed, validity remains their Hoye Bridges, Nye-Schneider-Fowler Co. v. impaired.” is not 155, 235; Mur Co., 863, 98 Neb. N.W. & hand, theOn other there authorities are 412, Co.,

phy George Brown 91 & v. N.J.L. statutory which seem to hold that Light Marine 28; v. Paul Fire & St. 103 A. fees, awarding attorneys’ enactment also Co., 132 Kan. 296 P. See operates although retrospectively Co., B. Preston 290 U.S. Funkhouser v. J. power police enacted exercise of the ; C.J.S., 78 L.Ed. 243 46 S.Ct. 54 power pre- legislature or the 1405,pp. Insurance, 712-715. § costs, impairs obligation con- scribe in the v. court case Sanderson This tracts violation Constitution. Ltd., Co., Idaho 45 River Canal Salmon Co., Central Glass Co. v. Niagara Fire Ins. approved the 32, recognized and 263 P. 972; 131 59 So. La. Central Glass Co. above cases forth in the principle set Hamburg-Bremen Co., v. Fire Ins. 133 appearing page on following language 236; La. 63 So. Piedmont & Arlington Idaho, 263 page 36 of P.: 45of Ray, 511; Life Ins. Co. v. 50 Tex. Ameri- Donahue, 294; Nat. Ins. Co. v. can Okl. would seem to be general “The rule See also Rio Nat. not act on the P. Grande which does a statute Tex.Civ.App., prop Bailey, Ins. Co. v. itself, merely Life but on the contract 493; Camp, Sovereign W.O.W. subject of the con S.W.2d erty which Gomez, Tex.Civ.App., 129 impair S.W.2d the ob tract, may not be said to Contracting supra. Peterson v. 96 Wash. the contract. ligation of Jahn C.J. di P. 937. may The value contract contract appear to ties entered into the insurance Many of the above cases charged knowledge of the reserved of which with the minority rule, some the follow police any at readily may of the state which power dis- by appellant, are were cited promotion gen- time be in the invoked the distinguished tinguishable and were Em- eral from Ry. enlarging of welfare time to time Spicer Benefit Ass’n case of v. procedures the 21 P.2d remedies connection ployees, P.2d 142 Or. contracts; instance, in the with insurance the statute chal- for 90 A.L.R. n caseof Central Glass Co. lenged Fire does not affect the substantive matter Niagara contract; only merely the the it enlarges of the rem- not Ins. affected Co. the statute procedures for edies and contract available to an the insured remedy right under but a paid in- the whose claim is not who required obligated statute the reason that the forms with policyholders litigate successfully litigate does supply surer to all case of loss; in the proof making of for under the insurance claim contract. It fol- Co. v. Arlington Life Piedmont & that the statute lows does not Art. violate provided for the only not Ray the statute Idaho, Constitution of prohibiting Sec. for attorneys’ but also fees payment of impairing obliga- law the enactment of a the in- is, required it damages, of a contract. Particular reference is tion 12% pay than at- more something do surer to United States for Use and Benefit made to pay dam- fees; required he was torneys’ Midwest Steel and Iron Works of Co. v. after the any, place which, if took ages F.Supp. Henly, D.C., 928 and cases enactment statute. reviewed therein. cited and no additional gives question The statute by appellant that It is further contended insured; pro- does not it advantage though the statute does not violate Art. even reason- provides for damages but for vide Constitution, attorneys’ Sec. Idaho provide it not attorneys’ only; does fees able allowed for the reason there fees cannot be insured over go sum any additional evidence introduced with reference was no contract but in the provided and above necessity for nor the reasonableness provid- sum therein prevent the attempts to allowed; attorneys’ appellant fees by expenditures being diminished from ed that the fee allowed was un- does not assert attorney; it does not of an for the services excessive, simply but reasonable or asserts impair obligation nor nor alter disturb because there is an cannot allowed ab- itself, any has it ef- neither the contract its touching reason- evidence sence conditions, proper; contract fect on contention without This merit. ableness. liability the contract extent terms question provides that in The statute only it affects the cost changed; of this courts state in the re- are action insurance in- moreover, covery such an par- under litigation; unsuccessful surer pay shall such further pairs amount as the the obligation of contract. Authorities court shall adjudge attorneys’ reasonable as supporting proposition are cited in the fees unless recovery. there is no What is majority opinion and it is unnecessary to reasonable attorneys’ question fee is thereto, for add although there are others to court, determination of the taking into like effect. consideration litigation, the nature of the

the controversy, amount involved in the PORTER, J.,C. concurs herewith. length of preparation time utilized in for and the trial of the case and other related KEETON, Justice. factors light knowledge viewed in I concur opinion with the of Justice experience and lawyer of the court as a and GIVENS disallowing attorney fees. To- judge; necessary it is not in this connection 289, hold that Ch. apply 1951 S.L. would that he hear on the matter evidence al to contracts prior of insurance written to- though proper may it is that the court have enactment, 'its liability would create a new opinion experts. before it the Luikart v. impose by' burden not covered Sep 901, 267 Flannigan, 130 Neb. N.W. 165. terms policy: of the insurance Further Co., Buckles also v. Continental Cas. 197 proof there was no submitted that ’an at 184; 128, 476, 251 252 Or. P.2d P.2d Hagey torney fee was contracted or 'the'Yeás’on Bonding v. Massachusetts 169 ableness of the fee allowed the trial 132, 836, 346; 126 P.2d Or. P.2d 46 C. attorney "court.' That an fee'had-been’con Insurance, J.S., pp. 714-715. § insured, tracted the-'question affirmed; judgment should be how- reasonableness,, (cid:127)its questions were of fact opinion majority ever view the which not be determined without could evi attorneys’ fees, part issue of on ‘the of dence. Mulvihill National v. First Bank judgment allowing attorneys’ fees is re- Arvada, 504; 80 Colo. 249 P. State

versed. Ganong, 233; 93 Or. 184 P. Holiday v. Smith, 775; Oil Co. 100 Okl. respondent. v.

Costs to P. England v. Commercial Bank of Ma New TAYLOR, J., drid, Cir., 401; concurs. 242 F. 155 C.C.A. City

Power of Breckenfidge, v. Tex.Civ. GIVENS, App., 872; 290 S.W. Decatur Mineral & Justice. Palm, Land Co. v. Ala. 21 So. opinion I concur with written by Robinson, May 221 Ala. THOMAS, except as to J., the allowance So. 81. fees, attorneys’ and dissent from that qf because, apply portion my opinion statute enacted It is further that the insured policy after the insurance was written im- was not house confined within the terms activities policy and which period for for the engaged which he recovery. preclude any disability

he claims interpretation of the favor-

A liberal extended should not be the insured

able to In the entirely new contract. an

to write case, during period

instant allowed,

recovery the insured trans- business, work, and did some fre-

acted trips and nu-

quently for various went actually purposes. He was neither

merous substantially house confined. Without

nor extending

reviewing dis- authorities my opinion judgment that the

cussion, it is plaintiff be reversed allowed

should only tendered amount.

recover

275 P.2d 960 Eugene McCann,

C.F. KEANE and F. Plaintiffs-Respondents, McFEE, Defendant-Appellant.

A. F.

No. 8122.

Supreme Court of Idaho. 29, 1954.

Oct.

Case Details

Case Name: Penrose v. Commercial Travelers Insurance Co.

Court Name: Idaho Supreme Court

Date Published: Oct 29, 1954

Citation: 275 P.2d 969

Docket Number: 8129

Court Abbreviation: Idaho