Rindlisbaker v. Wilson
519 P.2d 421
Idaho
1974
Check Treatment

*1 519 P.2d al.,

F. Clair RINDLISBAKER et Plaintiffs-Respondents, WILSON, Estate Executrix

Irene M. Wilson, formerly Deceased, dba of E. M. al., Company, et De Wilson’s Farm Service fendants, Distributing Co., Defendant- Appellant. 11127.

No.

Supreme of Idaho. Court

Feb.

Rehearing Denied March *3 Pocatello, Kid- Peterson,

Ben R. Vern Holden, Kidwell, well, Hahn & Holden, Falls, Fields, Crapo, Richard C. Boise, defendant-appellant. for Jr., & Kis- Hugh Maguire, Maguire C. Pocatello, plain- Dale ling, Kisling, for W. tiffs-respondents.

BAKES, Justice.

Respondent Clair Rindlisbaker F. against this brought action fer- and distributor of a the manufacturer applicator against tilizer and the fertilizer re- applicator dealer who furnished the spondent respondent’s use field. father, respondent’s In 1967 with whom partner in family was a farm- partnership, ing called Farm Wilson’s (hereinafter placed Service Wilson) anhydrous an order for ammonia fertilizer. by sending Wilson filled the order an em- ployee to the Rindlisbaker with farm applicator Farmore fertilizer filled with anhydrous employee The ammonia. applicator oper- instructed to place into ation. applicator

The Farmore delivered Rindlisbaker farm was manufactured purpose applying liquid chemical fertilizer to a 750- the soil and consists of gallon resting plat- fertilizer tank wings folding form from which two steel approximately twenty extend feet on each pumped The liquid side. fertilizer through injected the extended wings into the earth through curved shanks each regular descend at intervals from Rindlisbaker, appellant against wing. In order to allow jointly and awarded the sum transported highways, the extend- on the Wilson $400,000 respondent Rindlisbaker and wings upright ed fold each side of vertically. his trial court’s they wife. After the platform extend until appellant’s judg- by a denial of motions for a wings position are held vertical position notwithstanding the ment and for a retaining From the vertical the verdict pin. trial, appellant brought appeal. new this wings operational lowered into an position by following appellant’s three We will not discuss each of (horizontal) cable attaching assignments separately, a winch but separate steps: (1) error will retaining consider them in wing; removing groups according (2) wing questions lowering substantial pin; (3), gradually raised. Benson v. re- pin Brady, the winch. If the operating *4 attached, it the cable moved without winch Appellant first contends that the applicator possible 750-pound for the in permitting court’s action Bonnie manufac- wing applicator was fall. prosecute Rindlisbaker separate a claim only cable with one winch and winch tured for the loss of “support” the “services” and indicat- warning signs had attached and no husband, of her Rindlisbaker, F. Clair was lowering the proper the method of ing Appellant error. question does not wings danger the se- the attendant and right wife’s to recover for loss of quence was followed. resulting injury consortium from to her employee lowering was As the Wilson husband caused aby person’s third negli right applicator wing preparation the gence, but claims that Mrs. Rindlisbaker’s operation, applicator placing the into for complaint “sup was for the “services” and pulled respondent, attempting helpful, to be port” of Mr. Rindlisbaker dupli and thus a pin applicator retaining on the left the cation of Mr. Rindlisbaker’s claim for “loss wing. conflicting at this The evidence is wages.” of respondents’ In amended com point concerning the Wil- whether or not plaint, page II, paragraph Mrs. Rindlis employee respondent son that indicated baker claimed she that “has suffered and respondent pull pin. should When will continue to suffer extreme mental an pin pulled, applicator wing was fell on guish by injuries reason of her husband’s instantly him respondent, paralyzing from permanently and has been deprived of the per- the waist down and him a rendering care, comfort, society, consortium, services, paraplegic. manent theAt time of the ac- companionship, protection support and cident, respondent years was 28 old. of husband, her F. Clair Rindlisbaker ' The basic frame manu- was Sons, by appel- factured Ben Hunt & for analysis complaint An of the indicates Distributing, apparently lant Farmore us- that the substance of Mrs. Rindlisbaker’s ing design developed by both Farmore care, claim consortium, for the of was loss and Ben completed Hunt. Farmore comfort, society, companionship, services applicator by tanks, specified installing protection and of her husband. Idaho has hoses, shanks, completed applica- etc. The recognized the right wife sue for then, case, tor was in this sold to Wilson loss of consortium caused a negligent for use in his farm service business. injury her Accordingly, husband. that Respondent, joined portion by his complaint wife and three of the properly was al- children, subsequently Sonneman, brought an action lowed. Nichols v. Idaho Wilson, against appellant Distrib- Farmore 418 P.2d 562 (1966). also See Gener- uting, Sons, Bush, Ben Hunt & al and Oil Electric Co. Shell 88 Nev. Company. After a lengthy Annot, re- P.2d (1972), and 36 A.L.R.3d turned a verdict in respondent supplement. favor of 900 and Lilly F. Diaz Eli & Co., wife, Clair (Mass. Rindlisbaker his 1973). Bonnie N.E.2d Hunt, co-defendants, concedes, agree, Respondent for Ben one support inquired if Mrs. Rindlisbaker’s claim Mr. Rindlisbaker whether the support, paid pecuniary money it should bills had- been obtained with allowed in it was redundant from Farm have been Wilson Service under for loss of terms of a with Mr. Rindlisbaker’s claim Mr. Rindlisbaker settlement. Doggett Engineering responded wages. v. Boiler At that time affirmative. objection Supply only 477 P.2d made made was However, “support” the word counsel Rindlisbaker who only complaint. objected testimony mentioned the amended on the basis that such Mrs. Rindlisbaker’s trial was irrelevant immaterial to the issues inability Respondent’s objection concerned Mr. Rindlisbaker’s before the court. provide support family redirect, such was overruled. On Rindlis- matters Mr. discipline children, family activi baker testified to the effect that the settle- ties, testify way did ment etc. not in was executed limit She because the of Wil- support. $50,000 financial son’s and that loss of insurance was consortium, way Mrs. Rindlisbaker’s Mr. Rindlisbaker no considered loss of care, comfort, in- society, companionship, compensation serv as full for his Appellant protection juries. objected ices and of her husband would easily justify explanation respondent’s for exe- $15,000. award of There reasons *5 fore, cuting say cannot of the covenant to the intro- that the inclusion and also “support” of the the word in the amended com duction covenant into evidence. any plaint way jury. misled the Where Concerning of the introduction support there is substantial to the evidence execute, appellant’s not to the covenant jury, judgment of the will not be verdict objection the raised first to covenant was appeal by on of errors or reversed reason At was offered when it into evidence. proceedings defects in do not affect which time, appellant objected ground on the that rights parties. substantial Rule of IRCP serving. the self that covenant was We 413, 61; Rosenberg Toetly, v. Idaho 489 94 independent of find no rule law which (1971). court’s action P.2d 446 The trial self serv states that statements complaint permitting Mrs. Rindlisbaker’s Bell, of ing Handbook must be excluded.1 “support” the claim to include word her. Ed., Lawyer, 2d for the Evidence Idaho appellant against was harmless error. fact, testimony self p. In most is. 129. objection An serving degree. to some trial Appellant next that contends .the by trial correctly the overruled which was allowing the introduction erred court be con ground cannot on the stated court to execute of a into evidence covenant ground. appeal on different on sidered Farm between Rindlisbaker Wilson 43 Pruett, 428 Idaho State v. Service, statements together with certain no error Accordingly, there was (1967). covenant, and the to the relative objection the ruling trial court’s on awas that Wilson court’s statement Irene of appellant introduction by to the raised Prior to only for technical reasons. party to execute. the covenant trial, respondents Irene Wil- settled with son, of E. M. Wil- of the estate executrix urges that strenuously Appellant son, executed “Covenant Mr. permitting action in the trial court’s start to Execute.” At the Not testify concerning the lim Rindlisbaker that Irene jury court informed by E. M. liability held insurance its of rea- only party for technical Wilson reasons Rindlisbaker’s and Mr. Wilson trial, when During the of course prejudicial sons. so covenant was executing the The area testifying trial. a new Rindlisbaker was to necessitate Mr. so as terms into the settlement inquiry counsel of expenses, medical his accumulated Co., P.2d 418 Notwithstanding Idaho Flame Blue Gas Jackson opened by appellant’s thereof was co-de- “No.24 Appellant fendant Ben Hunt. Wilson, “You are instructed that Irene objection inquiry made no to the line of as Executrix of the Estate of E. M. Wil- until explain allowed to son, formerly deceased, dba Wilson’s that he did not consider the settlement full Service, pro- party Farm is still a this compensation injuries. for his The cove- you ceeding may liability find all nant would have been to the is- irrelevant damages, any, by plain- sustained case; however, sues it was made tiff, responsibility to be the of M. E. by inquiries relevant of the co-defend- Wilson, agents.” or his County, ant. Hobbs Ada “No. 16 (1969); Murphy P.2d 742 v. Mutual “A liability defendant’s is not measured Life Ins. P.2d 993 by the his coverage, amount of insurance (1941). Respondent at that time had a by damages proximately but the full right explain he that did not by caused the acts of that defendant or compensation consider the settlement full agents.” his injuries. for his Respondent apparently concedes “No. 17 testimony that the concerning the limits on part on one of “Settlement several liability insurance and the court’s statement any defendants cannot be construed to the Irene Wilson was liability manner as indication of on party for technical reasons were both erro participat- defendant not neous, but contends that the errors were ing in the settlement.” adequately cured proper instructions An error in the admission of evidence jury. Assuming, deciding, but not existence the limits of in and statement the court may be by proper surance cured instruc error, they were must considered in Hoskins, jury. tions Finck v. light of the given instructions *6 Similarly, (1972). 492 P.2d 936 by pertinent the court. The instructions an by erroneous statement the trial court jury submitted the were follows: may by proper be the cured instruction to

jury. Feeney Harrison, 371 P.2d “No. 12 That the instructions submitted in the instant case were under “You are instructed that there has been by stood and followed is evidenced the testimony concerning a covenant between jury’s liability verdict wherein the of Wil plaintiffs the and the defendant Irene M. son’s Farm was co-extensive with Service Wilson, representing Wilson’s Farm Farmore, $50,000 that of and the settle Service. You are further instructed that ment was appel allowed as a credit to both there has been that the insur- Thus, lant and Farm in Wilson’s Service.2 $50,000.00. ance limits available is It is view of the court’s instructions submitted responsibility not the any other de- jury, to the we find that the above dis fendant to ascertain insurance limits on error, statements, cussed if were harmless. the of E. M. Wilson and it does not group of appellant’s The next conten- automatically follow that because of this tions relate to the trial court’s instructions policy limit the other defendants would liability. to the on strict The trial responsible be for in excess court instructed the as follows: $50,000.00. By token, the same it does plaintiffs not mean that the “No. 50 are limited $50,000.00 justifies if the evidence for “In order the rule strict larger award.” applicable, necessary to be it is not for 2. The verdict form submitted the settlement with Wilson’s Farm provided the court for a allowance Service. applicator The fertilizer was prove that the manufac- “Second: plaintiffs design turer, supplier prod- defective in or manufacture or distributor spe- placed on market and defective the time it was is claimed to be uct which delivered; authorized, actually cifically or was of, particular manner which aware plaintiff, The Rindlisbak- Clair “Third: time product being at the was used defect; er, was unaware of claimed injurious It suffi- occurrence. “Fourth: The claimed defect was being used product if cient injury to proximate cause of manufacturer, manner in which the Rindlisbaker, plaintiff, occur- Clair have rea- supplier should distributor or ring while fertilizer be sonably anticipated that it would used being way gener- used in the and for the manner.” some abnormal purpose designed al it for which was intended, and “No. 51 defect, “Fifth: if it made existed, defective, may within product “A be applicator unreasonably the fertilizer rule term as used meaning of that dangerous and unsafe for its intended it con- liability, not when of strict use. materials defective tains unsafe or “An unreasonably dangerous article is if its funda- any part of parts, but also dangerous beyond it is an extent bystand- exposes users or design mental contemplated which would be the or- physical risk of ers to unreasonable dinary person uses it with the ordi- who. injury. nary knowledge common to the commu- defective, even may also be product “A nity as to its characteristics.” made, if it faultlessly might it though place it in unreasonably dangerous to “No. suit- giving a user without hands of “The manufacturer and retailer or dis- or instruc- warnings adequate able tributor of an places article who it on safe manner concerning the tions the market for use under circumstances it.” to use where he knows that such article will be

used inspection without defects particular “No. part, mechanism, design which is claimed defective, to have been defendants, Hunt & Sons Ben “The is liable injuries proximately caused Company, are Distributing *7 by defects in the manufacture design create and the law so to required under of the article which caused it to be un- to make it acci- product their as deliver reasonably dangerous and unsafe for its however, to proof; they are liable dent intended use and of which the user was any injury suffered plaintiffs for aware, provided the article being by pre- a plaintiffs them if the establish used for purpose for which it was ponderance of the evidence all of the designed and intended to be used. prove fol- necessary fact to each of the “An article lowing is unreasonably conditions: dangerous it is dangerous beyond to an extent that placed The defendants the fertil- “First: contemplated by would be the or- applicator question izer in on the market dinary person it, who uses with the ordi- use, knew, and the defendants or in nary knowledge common to the commu- the exercise of reasonable care should nity as to its characteristics. known, particular have that the fertilizer plaintiffs inspec- would “The be used without have the burden of estab- lishing by preponderance tion for particular part, defects in the a of the evi- mechanism or dence all of design necessary prove which is claimed to the facts to defective; have each of the foregoing been conditions.”

759 Co., Hough su- 398; v. Frank G. Pike v. Shields case of recent In the 629, 465, 470, Cal.Rptr. 85 674, P.2d 2 pra, 518 Cal.3d Chemical, 95 Morton Cal.Rptr. at 91 232.)” P.2d con 467 held this Court 857 (1974), liability products liability for cept of strict in Restatement embodied case, produced

cases as evidence was In the instant prop a Second, 402A Torts, (1965), reasonably jury § from which a could at trial According in Idaho. liability er basis in a the de conclude that there was defect instruct in the court ly, find no error Accordingly, the sign applicator. liability. jury strict ing on (set forth instruction #51 trial court’s above) design defects was presented, and The next issue proper. v. Yuba Power Prod Greenman court presented one which was Inc., supra; ucts, Wright Massey-Har v. Chemical, supra, Morton in Shields ris, Inc., Ill.App.2d 215 N.E.2d 465 opposed to a design, as a defect whether Helicopter (1966); Brantly Berkebile v. scope manufacture, is within defect Corp., Pa.Super. 281 A.2d 707 Appellant above. of the rule enunciated be drawn urges that distinction should con appellant’s turn to and defec now defective manufacture We between However, instructing that the court erred design. tive we fail see' tention duty It is appellant’s to warn. logical distinguish between on reason may clear be used as just two. The risk will be that a failure warn user great unreasonably dangerous liability with de for a strict case.3 Com basis 402A, H, 2d, sign Torts manufacturing defect as with a de ment Restatement § provides has Appeals, fect. The California Court of that where the defendant issue, ruling upon anticipate may re danger same stated “reason Corp., particular product Thomas v. Motors sult from use” General Cal. of his App.3d 81, Cal.Rptr. adequate (1971) give : he fails to warnings of danger, such a product “a sold without liability encompasses

“Strict design both warning is in a defective condition.”4 (Greenman manufacture. v. Yuba rule, however, This is limited to situations Products, Inc., 57, 64, Power 59 Cal.2d wherein danger is not obvious.5 In the Cal.Rptr. 697, 897.) There case, instant question factual as to the is no rational design distinction between obviousness danger involved in the manufacture, product may since a applicator wing lowering procedures was equally defective and dangerous if its de- present. A could reasonably have sign protected subjects persons to unrea- found that the evidence in this case indi sonable risk as if its manufacture does cated that the danger of a “falling applica [Omitting so. ‘A manufac- citations]. tor wing” was not Accordingly, obvious. turer a chattel plan made under a the trial court’s instruction to design which makes dangerous it for the appellant’s duty to warn was not error. uses for which it is manufactured is Ewer Goodyear Tire & Rubber subject to others he whom Wash.App. 152,480 P.2d 260 (1971). expect should to use the chattel or to be *8 endangered by probable its physi- use for Appellant next contends that cal harm caused his failure exer- the trial court erred in giving instructions cise reasonable adoption care in the of No. 6 and No. 53 to they plan safe or design.’ Torts, (Rest. 2d instructed the jury that if F. Clair Rindlis- § 3.Canifax Hercules Powder Liability, ican Supple- Cal. Law of Products App.2d ment, Cal.Rptr. see also (1965) ; ¶ 5A :7. 2d, Torts, 402A(h, j) ; Restatement § 4. 2d, Torts, 23 S.W. Restatement § 402A. 256, Noel, L.J. Products Defective Because of Noel, 5. Products Defective Because In- Inadequate Warnings, Directions or supra. adequate and Amer- Warnings, Directions baker, man, rather than a reasonable deter- presumed “The will be to have con- danger mined the involved in using the sidered the whole; instructions as a con- applicator, fertilizer there could be no re- sequently, appeal, jury instructions covery. provides Instruction No. 53 will not be piecemeal. considered [Cases follows: cited].” See also Bushnell, Davis

“No. 465 P.2d 652 (1970). We find no reversi- ble error in Instruction No. 53. manufacturer, distributor “That the in- the fertilizer supplier of Instruction provides 6No. as fol duty under litigation are in this volved lows : instruc- warnings adequate give same as use of the tions as to the “No. reasonably foreseea- dangers are which been should have “You are known or are ble and instructed that the defendants plead such in- give rely upon to them. Failure known contributory negli- negli- gence warnings constitutes structions or the Plaintiff. danger was ob- gence unless the involved “Contributory negligence is defined as by plain- peril appreciated vious and negligence person on the of a seek-

tiff.” ing damages negligence concur- ring negligence with the of another aids agree, concedes, and Respondent in proximately causing damage of literally, an instruction, was taken which the complain. claimants thereafter since con law of the statement incorrect who is guilty contributory One negli- negligence tort negligence tributory gence may not recover from another for man upon a reasonable based action is suffered. plaintiffs action. standard, particular anot “However, in- you this action Wetystur, & ux v. Smith Meissner et is contributory negligence structed that Instruc 563, 494 P.2d 567 the dan- if Rindlisbaker discovered Clair however, given tion No. machine, any, if gerous condition of the such cor liability and as context of strict product after and continued to use governing ques rectly law stated the learning dangerous condition. If agreed that generally tion since it is determine, you you so then must find for negligence commonly known what Also, danger if the so defendants. is a “assumption of the risk” tort law as obvious that a man reasonable should re- action, and that defense to a strict danger, alize such then to use the ma- “assumption of the risk” involves the chine is contributory negligence.” subjective particular plaintiff. actions aof Chemical, supra. v. Morton See Shields con- jury that advised the The instruction 2d, also (n); Restatement Torts 402A recovery negligence § was a bar tributory Friedman, Liability, Products Frumer and contributory negli- claim and that on the (1972); 13 A.L.R.3d 16.01(3) § § Rindlisbaker’s gence consisted of Clair In view of the fact that instruction No. 53 product after discov- continued use of the given group within of instructions appli- ring dangerous condition of relating liability (Instructions strict cator, man a reasonable would have 50, 51, 52, Nos. 54), we find it difficult to danger. Although it would realized see how the was misled the word have been better if the instruction had not “negligence” such as prejudice would discovery referred to Clair Rindlisbaker’s rights appellant. As stated in Blaine dangerous v. of the fertilizer condition of the *9 Byers, 665, 91 page 674, Idaho at machine, reference, 429 taking P.2d in- such a 397, page at 406 (1961): whole, struction sufficiently as a did not problem arises which now The preju- create instruction so as to taint the is re action what remedial determine dicial error. has often stated quired. This Court be dis remaining The issue to responsibili primary the trial court has dam jury’s cussed concerns the award of during ty weigh the introduced evidence ages. Appellant urges that the trial court a trial and determine if the verdict of erroneously pro testimony allowed as to a reasonably justified. can be Menden operation jected yet future existence Co., MacGregor Triangle hall v. 83 Idaho jury’s and that the verdict was a'result of 145, 352 We have also (1961). passion prejudice. appellant’s Over approved the use of a courts objections that the specula evidence was remittitur an as alternative to a new trial tive, conjectural and proper without a damages where excessive In involved. foundation, the trial court allowed Mr. Bowman, 463, Checketts v. 70 Idaho testify Rindlisbaker to pro Court, P.2d 682 (1950),6 addressing this range operation. The court future jected question itself to the of whether a remitti testimony permitted Mr. Rindlis also tur could be used an alternative to a purchase going to the ranch baker was trial, new stated: years they from his father in and that two delay, necessarily “New trials occasion hay pas were going ground to convert into hardship expense parties. No to the ground approximately ture and run four oppor- harm can arise from affording hundred head cattle on the ranch. Mr. tunity plaintiff a new avoid Rindlisbaker also that they testified would trial and obtain an judgment immediate per make approximately head $35-40 for the 468, lesser amount.” 70 at Idaho This explicitly cattle. court has stated that 220 P.2d at 684. damages for loss earnings profits court can an exces- As the trial evaluate must be shown with reasonable certainty standpoint sive verdict from the of dam- that compensatory upon awards based ages and order a remittitur as an alterna- speculation not be al conjecture will tive to a new Mendenhall v. Mac- Puregro Jolley v. lowed. Co., supra; Gregor Triangle see also 702, (1972), cited 496 P.2d 939 and cases Annot, 935, p. 4[d], 70 A.L.R.2d at § in the in therein. The elicited (1960), logical no itwhy see reason concerning projected stant case future win cannot, appropriate, if it deems evaluate operation range ter is violative of the rule effect, specula- if any, adverse set forth At the above. time of the acci tive relating evidence to damages which dent, respondent owned only 40 head of improperly admitted at the trial. cattle himself and marketing with his McCormick, Handbook on the Law of only father annually. 187 head Respondent Damages, p. (1935). We are § and his father had not entered into not finding under the facts of this case arrangement lease rangeland for the winter excessive, $415,000.00 verdict of but and had taken no action hay to convert that the improperly admitted evidence re- ground pasture into ground. Additionally, lating to future earnings may warrant re- intent concerning respondent’s the evidence medial action opinion. consistent with this more purchase ranch little shows too evidence was than a bare intent. This is remanded with cause speculative proof of to be admissible as court to re-exam directions to the district Dam earnings. lost future McCormack on opinion this ine the record in view of ages, p. (1935); 45 A.L.R. following take whichever of the courses § 381, 419; Bender, Inju Mathew Personal appropriate, action court deems de ry, not, pending upon opin- whether or § [4] [c] [e]. Smith, limit of Overruled on the Meissner v. 494 P.2d 567 *10 court, majority specifically resulted the prejudice ion of the district finds the that judgment from admission into of the of the evidence was not excessive. The speculative damages. only action is relating evidence to remanded to determine whether certain prejudice concerning If court determines that no evidence future the earnings impact had an appellant on the to resulted from the admission verdict. Upon speculative testimony- into remand the trial properly of the court can evidence find that there relating damages, pre- was sufficient judgment to the evidence to support regardless the verdict viously “spec- entered If court of the should stand. the ulative” prejudice determines from the evidence. that resulted speculative admission into of evidence the relating damages, evidence the court to McFADDEN, (concurring Justice may either a (1) order remittitur of that dissenting part). portion of judgment the court which the opinion majority as writ- concur in the I product determines the of the im- ten, except as it remands the case insofar properly admitted relating evidence of determination to the court its trial damages; remittitur, (2) order a as stated prejudicial improperly ad- the effect of the in (1) above, respondent allowing the al- that my mitted evidence. It is conclusion ternative of accepting either the remittitur the trial case should be remanded to the in writing twenty having within or days a solely court for new trial on the issue of a new trial on damages; the issue of or (3) damages respondent F. to be awarded to

grant a new trial damages. on the issue of Clair Rindlisbaker. making In this determination the trial court evi- that the should holds opinion consider the the relationship majority between The speculative damages relating evidence dence adduced operation cattle range and the particu- proposed entire course of the winter larly respond- be admissible speculative whether or not counsel too was earnings. After upon ent of future argument proof oral dwelt of loss made, my conclu- profits it is future is to be made from the determination court of this operations, obligation it farming whether that it is the or sion as to whether was mentioned the evidence to make the determination time of this testimo- into evidence was admitted. the admission not, re- and that ny prejudicial or does If on remand trial court the trial court manding back to this issue grant judgment or against relief of is an abdication for determination merely portion a a orders remittitur of responsibility of this court. judg then judgment, interest on general returned this case the In origi ment shall run from the date Rind- Clair respondent F. insofar as verdict principal judgment nal amount of court lisbaker is concerned and remittitur, judgment any). (less this effect that attempt determine granted, original If a new trial is and the on the had evidence improperly admitted aside, judgment set then interest shall not an exercise would be jury and its verdict judgment run until a new is entered. re- general verdict futility. When proceedings. Remanded for further evaluate impossible it to later turned party Each to bear his own costs. could any particular bit of evidence effect on the ultimate amount have SHEPARD, J., DONALDSON, C. into admission jury. found J., concur. preju- either this evidence (specially concur- McQUADE, error, Justice dicial error harmless ring). by this court. to be made decision is ques- problem related to majori- is not I This reasoning concur in the trial condi- opinion, granting of a new ty emphasized that tion of the but it must be

763 prospective admitting as to which upon of a sum tioned the remission proposed range winter from the earnings be exces- the trial court has determined to ap- operation prejudicial to cattle the trial sive record before pellant in should this case and a new trial court can sustain a certain amount See, granted damages be on the issue of suf- damages. be awarded as Checketts v. Bowman, 463, by respondent fered (1950), 70 F. Clair Rindlisbaker. Idaho 220 P.2d 682 Reinartz, Valley Transp. System wherein this court stated: v. Ariz. 197 P.2d 269 McAlister (1948),; “However, this, in a case where Carl, (1964). Md. 197 A.2d 140 other ground no for new trial is found support than that the evidence does verdict,

the amount of it and does appear to judge the trial that the by passion

amount was influenced

prejudice, or other irregularity, which

may be on a avoided new then he go

should further and condition the new ROHNERT, Claimant-Appellant, Gerald T. trial on prevailing party refusal of the to remit of the verdict which COMPANY, (Self- AMALGAMATED SUGAR judgment his is excessive.” Idaho Employer, insured), Defendant- 467,468,220 P.2d at 684. Respondent. No. 11315. 665, 429 P.2d 397 Byers, 91 Idaho Blaine v. Supreme Court of Idaho. Slininger,

(1967); Bratton v. this is not And (1969). P.2d 383 Feb. type judgment of case where a con- items, separable some of which are tains

proper improper, and it some proper permit party

would be judgment

whose favor a has been returned granting avoid a new trial ac- only part affecting

count error there-

of, by entering a remittitur as to the erro- See, part.

neous Annot. A.L.R. 1186 in assessing damages

awarded F. Clair Rindlisbaker

had evaluate, numerous e., elements to i. expense, past future,

medical pain past

suffering, future, earnings, loss of

past future, life expectancy and other

items damages accepted generally

cases of this nature. These items

considered in arriving at its verdict in his

favor impossible to itemize when there

is a general verdict rendered. There is no

way court, court, or this could effect,

evaluate the any, improp-

erly admitted evidence on when it

considered the issue as to Rindlisbaker’s personal injury. For that

reason my it is conclusion that the error in