Clements v. Jungert

• Court: Idaho Supreme Court
• Writing for the Court: SMITH; McQUADE
• Citation: Clements v. Jungert, 90 Idaho 143, 408 P.2d 810 (Idaho 1965)
• Decision Date: 16 December 1965
• Docket Number: No. 9651,9651
• Parties: V. R. CLEMENTS and Reed Clements dba as Co-partners under the firm name and style of Clements & Clements, Plaintiffs-Respondents, v. Willie JUNGERT and William Jungert, Jr., Defendants-Appellants.

Page 810

408 P.2d 810

90 Idaho 143

V. R. CLEMENTS and Reed Clements dba as Co-partners under the firm name and style of Clements & Clements, Plaintiffs-Respondents, v. Willie JUNGERT and William Jungert, Jr., Defendants-Appellants.

No. 9651.

Supreme Court of Idaho.

Dec. 16, 1965.

[90

Idaho 145] Ware, Stellmon & O'Connell, Lewiston, for appellants.

William B. Taylor, Jr., Grangeville, for respondents.

SMITH, Justice.

This is an appeal from a judgment entered on a directed verdict against appellants, allowing recovery to respondents on an implied contract for attorneys fees in the sum of $2,025.00, and expenses incurred of $186.40, totaling $2,211.40 and costs.

This action was brought by respondents to recover the reasonable value of their services rendered and expenses incurred in representing appellants in an earlier action entitled, 'Charles Mendenhall and Violet Mendenhall, Plaintiffs, vs. Willie Jungert and William Jungert, Jr., Defendants,' Civil Case No. 6069, commenced October 30, 1959, in the Idaho County District Court.

In that action, Mendenhalls alleged that Jungerts threatened Mendenhalls with a rifle, fired the rifle into two of the tires of their truck, and by fire, destroyed a house and furniture which they owned, for which Mendenhalls sought recovery of damages, totaling $6830.00; also sought a decree quieting in them an easement of access travel across Jungerts' land.

At the time of the alleged tortious acts there was in effect comprehensive liability insurance policy No. 65540074 written by Truck Insurance Exchange insuring Jungerts, as a co-partnership engaged in the business of farming, against property damage liability. The policy contained a provision to the effect that the policy coverage did not apply to destruction of property caused intentionally by or at the direction of the insured. ¹ Jungerts took the Mendenhall complaint and summons, and the insurance policy, to a Mr. Seubert, an agent for Farmers Insurance Group (of which Truck Insurance Exchange is a member) at Cottonwood, in Idaho County, for the purpose of ascertaining if the policy covered their legal liability in the Mendenhall action. Jungerts, at the agent's suggestion, consulted with respondent V. R. Clements at his office in Lewiston; this was on November 3, 1959. Mr. Clements stated that he did not know whether the Jungerts were covered by the policy, and that he would have to get a decision from Loy Grimes, the Farmers Insurance Group adjuster in that area.

A second conference was held November 6, 1959. Willie Jungert and his wife, Mr. Grimes and Mr. Clements were present. The testimony is in conflict as to whether Mr. Jungert asked Mr. Clements to represent him, and whether Mr. Grimes stated that the Jungerts were covered by the policy.

Following these two conferences Mr. Clements proceeded with his preparation of the defense of the Mendenhall action. He interviewed witnesses, gathered information, and held several conferences with Willie Jungert.

One such conference held on December 21, 1959, involved a letter dated December 17, 1959, which Willie Jungert had received, in which the insurance company through its Spokane, Washington, Branch Manager stated that it had reviewed the Mendenhall complaint; that the policy did not cover claims arising out of damage to property caused by the intentional acts of the insured, for which reason the company denied liability, including any defense to Jungerts of the Mendenhall action. Mr. Clements at that time told Mr. Jungert that he, Clements, would not handle any dealings with the insurance company relating to its refusal of coverage of the Mendenhall claim and suggested that Mr. Jungert consult with Mr. Eimers, an attorney in Grangeville. Thereafter the insurance company sent two letters, one dated February 9, and the other March 3, 1960, to Mr. Eimers denying liability, again on the theory that the Mendenhall complaint disclosed intentional acts on the part of Jungerts not covered by the insurance contract. Jungerts received a copy of each such letter shortly after its date.

During March 1960, Mr. Clements represented Jungerts on a motion by Mendenhalls that they be accorded the right of ingress and egress over Jungerts' land. After a hearing had, at which oral and documentary evidence was introduced, the court denied the motion. Mr. Clements also represented Jungerts, although unsuccessfully, in negotiations for the purchase by Jungerts of adjacent land owned by Mendenhalls.

Mr. Clements prepared an answer in which Jungerts denied the material allegations of the Mendenhall complaint except that William Jungert, Jr., fired a rifle into the rear tires of Mendenhalls' truck allegedly being operated unlawfully upon Jungerts' land; also Jungerts counterclaimed for $3,342.00 damages allegedly caused by Mendenhall in the operation of his truck over and across Jungerts' land, which Mendenhall denied.

The Mendenhall action went to trial before the court sitting without a jury on May 2, 1960, and was continued and concluded on June 21, 1960. The court found that on October 29, 1959, Mendenhall did not have an easement over Jungerts' land and was without right thereon. That on such date William Jungert, Jr., fired rifle bullets into the rear tires of a truck then being operated by Mendenhall, to the latter's damage in the sums of $50.00 for repair and replacement of the tires, and $1,000 for assault with a deadly weapon. The court found against Mendenhalls as to all other elements of damage alleged in their complaint; also found against Jungerts on their counterclaim. The court entered judgment for damages accordingly in favor of Mendenhalls against Jungerts but decreed that Mendenhalls had no right in and to Jungerts' land by easement, to travel over and across the same.

On July 29, 1960, upon learning the contents of the judgment, Jungerts consulted with Mr. Clements. Willie Jungert indicated dissatisfaction with the outcome of the case and expressed himself to the effect that Mr. Clements was influenced by the insurance company. Mr. Clements thereupon suggested that should they appeal the case, they employ another lawyer.

Respondents billed Jungerts as of August 30, 1960; Willie Jungert conferred with Mr. V. R. Clements on September 9, 1960, at which time he discussed the matter of taking an appeal. No discussion was had relating to the billing. On September 28, 1960, Willie Jungert left a check in Mr. Clements' office for payment of the judgment.

Respondents again billed Jungerts on October 6, 1960. Willie Jungert responded by letter dated November 9, 1960, in which he stated, 'As far as I am concerned, you handled this matter as attorney for the insurance company,' and suggested that respondents direct their billing to the company. Respondents thereupon commenced the present action seeking to collect their attorneys fees and expenses incurred in defending the Mendenhall action.

Appellants brought in Truck Insurance Exchange as cross-defendant on the theory that under its policy insuring Jungerts, it was obligated to provide a defense to Jungerts in the Mendenhall action. In its answer the company advanced the affirmative defense that while under its insuring agreement it was obligated to pay sums which the insured shall become legally obligated to pay as damages to or destruction of property, nevertheless the policy did not cover injury to or destruction of property caused intentionally by or at the direction of the insured; that Mendenhalls sought to recover damages allegedly caused by wilful and intentional destruction of their property by Jungerts, the insureds, and that therefore the company was not obligated to provide either a defense, or settlement of any claim or judgment recovered in the Mendenhall action. The issues as between appellants and the insurance company were incorporated in the pre-trial order dated November 20, 1964.

On November 20, 1964, the trial court entered an order wherein it recited that there was no issue between respondents and Truck Insurance Exchange, but that there existed legal and equitable issues between Jungerts and the insurance company; thus, 'in furtherance of convenience and to avoid prejudice,' the court ordered, 'that the trial of the issues between * * * cross-plaintiffs (crossclaimants) Willie Jungert and William Jungert, Jr., and the cross-defendant Truck Insurance Exchange, as raised by the cross-complaint (crossclaim) of said Jungerts, and the answer of the cross-defendant thereto and the pre-trial order now on file herein, be had separately from, and subsequent to, the trial of the issues between plaintiffs [respondents] and the defendants [appellants] as raised by the Complaint and Answer thereto, and the pre-trial order now on file herein, * * *' The court then ordered that the trial of the issues between Jungerts and the insurance company be at the next ensuing term of court.

Trial of the issues as between respondents and appellants was had before a jury. At the close of the evidence respondents, pursuant to I.R.C.P. 50(a), moved for a directed verdict which the trial court granted. The jury thereupon returned a verdict in favor of respondents, and the court ordered judgment thereon against appellants, in the sum of $2211.40. Appellants perfected this appeal from the judgment.

The trial court granted respondents' motion for a directed verdict on the following grounds:

That there need be no express contract, but there may be an implied contract, for the rendition of services by an attorney, as between the attorney and the client, which carries with it the obligation to pay;

That appellants continued on with respondents, in the relationship of client and attorney after the surety had notified appellants that they were not covered by the policy of insurance;

That appellants received the benefit of the services performed on their behalf by respondent attorneys;

That there is no evidence to show,...