O'DELL v. Basabe , 119 Idaho 796 ( 1991 )

1990 OPINION NO. 163, FILED DECEMBER 28, 1990, IS HEREBY WITHDRAWN AND THIS OPINION IS SUBSTITUTED THEREFOR.

McDEYITT, Justice.

The J.R. Simplot Company (“Simplot”) hired Glenn O’Dell in May, 1980. Soon after he was hired, O’Dell went to work for the Land and Livestock Division of the company. He eventually became the Division’s Director of Administration for Human Resources, Loss Prevention, Control and Planning. O’Dell’s duties included monitoring practices and formulating and enforcing policies to eliminate unlawful discrimination in employment. O’Dell worked directly under the Division President, John Basabe. He reported to the president and corporate officers and served on several corporate committees.

In April 1983, O’Dell’s assistant, Wilda Seibel, told O’Dell that she was being sexually harassed by the Division President, John Basabe. O’Dell advised Seibel of her legal options and of the applicable company policies that prohibited sexual harassment and provided for internal investigation of harassment charges. He also brought Seibel’s complaint to the attention of the corporate President, the corporate Human Resources Director, and the corporate General Counsel. These senior managers instructed O’Dell to inform them of any further developments.

The situation did not improve. In June of 1983, Seibel filed suit against John Basabe and Simplot. O’Dell was served with a subpoena to testify on her behalf.

A little more than one year later John Basabe called O’Dell to his office and fired him in front of three co-workers, whom Basabe had invited to be present. Basabe later testified at trial that if there had been enough room he probably would have invited the entire office staff to watch him fire O’Dell.

While Basabe told O’Dell that the official reason he was being fired was that his job was being abolished, he also said:

Glenn, I’m going to tell you, looking you right in the eye, that I’ve got a personal friend that’s a general in the National Guard, and if all this bullshit keeps up against this company that has been going on with that blonde, then I’m going to take all the facts I’ve got to this general.¹

O’Dell claimed that this statement shows the real reason why he was fired. He alleges that the blonde referred to was Seibel, and that the reference to the National Guard general constituted a threat to O’Dell’s position as a lieutenant colonel in the United States Army Reserve. Defendants claimed that Basabe’s comment was incidental to the real reason that O’Dell was fired — that O’Dell’s job was abolished due to budget constraints.

After he was fired, O’Dell consulted the corporate Director of Human Resources, Gary Wallis. Upon hearing the tape recording of Basabe firing O’Dell, Wallis commented, “The biggest problem you have is to decide what side of Maui you’re going to buy.” However, Wallis had known that Basabe was going to fire O’Dell and Wallis had actually advised Basabe on how to conduct the termination. O’Dell believed that his position was supported by the Simplot Company’s numerous personnel policies, employee handbooks and rules of conduct which, among other things: (a) declared that no employee would be discharged without “just cause;” (b) established procedures for grievances and disciplinary actions; and (c) prohibited both sexual harassment and retaliation against those who participated in bringing sexual harassment charges. O’Dell filed a formal grievance.

For the next month, seeking a response to his grievance, O’Dell wrote letters and memos to corporate officers. Receiving little or no response, he filed for unemployment benefits on October 16, 1984. Just a few days later, Simplot’s General Counsel wrote to O’Dell telling him that the company was placing him on an indefinite “administrative leave,” that he would receive pay, and that his benefits would be resumed “pending final review and resolution of the grievance.” The letter indicated that the review would be completed by October 31, 1984.

O’Dell received full pay for the next seven months, even though he had no duties. During this time, he and Simplot officers negotiated in an attempt to resolve their dispute. After a protracted series of negotiations and offers that O’Dell found unsatisfactory, Simplot finally offered O’Dell “unconditional reinstatement” to his former position or, alternatively, reinstatement to the “newly created” position as Director of Risk Management at the Food Division. The Food Division job had similar benefits to his former position except it did not offer the same eligibility for discretionary bonuses.

On March 1, 1985, O’Dell accepted the unconditional reinstatement to his former job. The necessary arrangements were made and O’Dell was to return to work near the end of March, 1985. On March 12, 1985, in order to preserve his claim of a civil rights violation, O’Dell filed a complaint with the Idaho Human Rights Commission based upon his discharge in September of 1984.

Sometime after O’Dell filed his complaint with the Idaho Human Rights Commission, Simplot canceled the originally agreed upon reinstatement date and set another, explaining that it needed additional time to make arrangements. This second date was also canceled by Simplot, and a third date was set. Finally, on April 19, 1985, a few days before O’Dell was to report back to work, Simplot rescinded its offer to reinstate O’Dell to his old job and unilaterally directed him to report to the Food Division job.

Taking the position that he was constructively discharged, O’Dell rejected Simplot’s directive and applied for unemployment benefits. He took his case to the Industrial Commission, which ultimately denied his claim.

On October 30, 1985, O’Dell and his wife, Sandra, filed a ten count complaint and request for a jury trial in the district court. The ten counts included: (1) retaliatory discharge; (2) breach of employment contract; (3) breach of public policy; (4) conspiracy to violate O’Dell’s civil rights in violation of the Idaho Human Rights Act; (5) breach of a covenant of good faith and fair dealing; (6) invasion of privacy; (7) intentional infliction of emotional distress; (8) defamation; (9) repudiation of contract for reinstatement; and (10) loss of consortium.

On March 4, 1986, the Idaho Human Rights Commission filed a motion to intervene as a plaintiff on the issue of illegal retaliation in violation of the Human Rights Act. The motion was granted. That same day, the trial court issued a Memorandum Opinion and Order in which it granted the defendants’ motion for summary judgment on the claims of civil conspiracy and breach of a covenant of good faith and fair dealing. The scope of the case was further reduced in April, 1987, when the trial court granted O’Dell’s motion to voluntarily dismiss the three individually named defendants.

The jury trial finally commenced on May 12, 1987. The defendants were John Basabe, in his agency capacity, and the J.R. Simplot Company. After O’Dell finished presenting his case in chief, Simplot moved for a directed verdict. The trial court denied the motion on all counts except for O’Dell’s claims of defamation, invasion of privacy, and intentional infliction of emotional distress. O’Dell’s attorney acquiesced in the court’s dismissal of the intentional infliction of emotional distress claim, with the understanding that the evidence that was presented on this issue was equally relevant and admissible on the surviving issues of wrongful discharge, breach of public policy, and punitive damages.

Following presentation of their case in chief, the defendants again moved for a directed verdict. The trial court granted the motion only as to O’Dell’s breach of public policy claim. At this time, the court also reversed its prior decision in which it dismissed O’Dell’s claim for intentional infliction of emotional distress. In doing so, the court ruled that O’Dell was not prejudiced by the earlier ruling, because all of the evidence that went to intentional infliction of emotional distress had been introduced on other claims.

The remaining five causes of action presented to the jury for determination were: (1) intentional infliction of emotional distress; (2) loss of consortium; (3) violation of the Idaho Human Rights Act; (4) breach of employment contract; and (5) breach of contract for reinstatement. On June 3, 1987, the jury returned its verdict. It found in favor of O’Dell on all five counts. It awarded damages summarized as follows:

1. Lost wages and benefits from the time of discharge to the time of trial (back pay) — $35,000.00

2. Lost wages and benefits to be incurred in the future (front pay) — $375,-000.00

3. General damages for emotional distress — $5,000.00

4. General damages for loss of consortium — $2,500.00

5. Punitive damages under the Human Rights Act — $2,000.00

6. Punitive damages for breaches of contract — $1,000,000.00

Judgment was entered upon the jury’s special verdict on June 8, 1987.

On February 5, 1988, the trial court issued a Memorandum Opinion and Order in which it granted defendants’ motion for a judgment n.o.v. and, in the alternative, a new trial on various aspects of the original judgment. The net monetary effect of this opinion was to vacate all of the damage awards except for $1,000.00 in punitive damages for a single violation of the Idaho Human Rights Act and $5,000.00 in punitive damages for breach of contract. In response to this opinion and order, O’Dell filed a motion for reconsideration and clarification as well as a request for a complete disposition of the case. On May 4, 1988, the trial court issued a Second Memorandum Opinion and Order in which it upheld and clarified its decision of February 5, 1988. O’Dell appealed from both the February 5, 1988 and the May 4, 1988 opinions and orders.

I.

NEW TRIAL

Defendant Basabe filed a motion for new trial, or in the alternative, for remittitur of judgment, invoking the provisions of Idaho Rule of Civil Procedure 59, and “specifically subsections 59(a)(5); 59(a)(6); 59(a)(7).” Defendant J.R. Simplot Company filed a motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial, or in the alternative, motion for remittitur pursuant to Idaho Rules of Civil Procedure 50 and 59. Simplot specifically cited Rule 50(b) in support of its motion for judgment n.o.v., and Rules 59(a)(1), (a)(5), (a)(6), and (a)(7) as the basis for a new trial.

The trial court in this case had the unenviable chore of wrestling with numerous legal issues upon which there was conflicting guidance from Idaho appellate court decisions, as well as determining the Rule of Procedure that might or might not pertain to each issue raised by the parties in their post trial motions.

After receiving extensive briefs and oral argument on these motions, the trial court entered its Memorandum Opinion and Order disposing of the issues in the order in which they had been determined by the jury on the special verdict form (appended hereto as Appendix 1).

After entry of the trial court’s Memorandum Opinion and Order, plaintiff filed a “motion for reconsideration and clarification and request for complete disposition” in which plaintiff urged the trial court to more fully state the basis for its ruling. In response to this motion, the trial court again addressed the issues determined by the jury in the special verdict form and issued a second Memorandum Opinion and Order.

In each of its Memorandum Opinion and Orders, the trial court analyzed its responsibilities in considering a motion for new trial under Idaho Rules of Civil Procedure 59(a)(1), (a)(5), (a)(6), and (a)(7), as set out by this Court in Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1987); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986); Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); and Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974), and undertook its reassessment of the evidence in light of those cases to enter its Memorandum Opinion and Orders.

Under I.R.C.P. 59(a)(1), the trial court must consider whether there has been any irregularity in the proceedings, or any order of the court or abuse of discretion which has deprived either party of a fair trial such that a new trial would be justified.

Rule 59(a)(5) is applicable when damages are so excessive or inadequate as to appear to be the result of partiality by the jury. As stated by this Court in Quick v. Crane:

[I]f a trial judge discovers that his determination of damages is so substantially different from that of the jury that he can only explain this difference as resulting from some unfair behavior, or what the law calls “passion or prejudice,” on the part of the jury against one or some of the parties, then he should grant a new trial.

Quick v. Crane, 111 Idaho at 769, 727 P.2d at 1197 (emphasis in original).

In Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1986), this Court applied the rule of Quick v. Crane in analyzing an order of remittitur or in the alternative a new trial entered by the trial court pursuant to I.R. C.P. 59(a)(5). Although the Court spoke of standards imposed under both Rule 59(a)(5) and (a)(6), it reversed the trial court for failing to specifically enter a finding that the amount of the jury verdict “appeared to be given under the influence of passion or prejudice.”

In its directions to the trial court, the Sanchez Court stated:

We remand to the trial court so that it may enter findings of fact as to whether he was, in fact, shocked by the jury award, or found such award unconscionable so as to have the appearance that it was given under the influence of passion or prejudice.

Sanchez, 112 Idaho at 616, 733 P.2d at 1241.

Rule 59(a)(6) motions, are analyzed under the test stated by this Court in Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), as noted by the trial court:

The rule that where there is any competent evidence, though conflicting, to sustain the verdict, the verdict will not be set aside has no application to a trial court in passing upon a motion for a new trial. Rather the discretion with which the trial judge is entrusted is a sound legal or judicial discretion, and the trial court may grant a new trial when it is satisfied the verdict is not supported by, or is contrary to, the evidence, or is convinced the verdict is not in accord with the clear weight of the evidence and that the ends of justice would be subserved by vacating it, or when the verdict is not in accord with either law or justice.

Blaine v. Byers, 91 Idaho at 670-71, 429 P.2d at 402 (citations omitted).

At this juncture it is important to carefully delineate the application of Rules 59(a)(5) and 59(a)(6). An examination of the Federal Rules of Civil Procedure or other jurisdictions’ interpretation of those rules is not helpful, as Rule 59(a) originated in Idaho in the form of section 4439 of the Revised Statutes of 1887, and continued as I.C. § 10-602 until it was adopted as a rule with only minor language changes. The logical analysis of our prior cases dealing with Rule 59(a) leads us to the conclusion that Rule 59(a)(5) applies to motions for remittitur, additur, or a new trial on the issue of damages based upon excessive or inadequate damages. Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1987); Quick v. Crane, 111 Idaho at 770, 727 P.2d at 1198 (1986); Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979). Rule 59(a)(6) applies when the verdict is questioned based upon insufficiency of the evidence or a verdict contrary to law. Hake v. DeLane, 117 Idaho 1058, 793 P.2d 1230 (1990); Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1987); Quick v. Crane, 111 Idaho at 766, 727 P.2d at 1194 (1986).²

Finally, Idaho Rule of Civil Procedure 59(a)(7) permits the grant of a new trial where an error of law has occurred at trial. Plaintiff and amicus curiae both urge this Court to require the trial court to state with greater specificity the reasons for granting a new trial under these various standards than were listed in the trial court’s two orders. On this issue, plaintiff and amicus curiae advocate a stricter standard than that mandated by our prior cases.

Motions for a new trial and judgments n.o.v. have been issues that this Court has dealt with over a significant number of years,³ and in so doing, has effected an evolutionary change in the documentation requirements imposed upon trial courts faced with these post-trial motions. In the earlier cases, trial judges needed only to state a bare conclusion. That requirement was broadened over the years until in Quick v. Crane, this Court established the requirement that the trial court state its reasons for granting or denying new trials:

“An appellate court should not focus primarily upon the outcome of the discretionary decision below, but upon the process by which the trial judge reached his decision. In order for the appellate court to perform this function properly, it must be informed of the reasons for the court’s decision. Unless those reasons are obvious from the record itself, they must be stated by the trial judge. ...” As in Soria v. Sierra Pacific Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (1986); we therefore hold that the trial judge must disclose his reasoning for granting or denying motions for a new trial ... unless those reasons are obvious from the record itself.

******

[I]f we are to preserve the exercise of sound judicial discretion at the trial court level, and if we are to avoid result oriented appellate review of such discretion, we must now take the next logical step, towards which much of our previous case law on the issue has led, and require the trial court to state its particular reasons for granting or denying motions for new trial and/or alternative remittiturs or additurs.

Of necessity, when the trial court grants one of these motions, it should state its reasons with particularity unless it is obvious from the record itself.

Quick v. Crane, 111 Idaho at 772-73, 727 P.2d at 1200-01, quoting Sheets v. Agro-West, Inc., 104 Idaho 880, 888, 664 P.2d 787, 795 (Ct.App.1983) (emphasis in original) (addressing motions made pursuant to Idaho Rules of Civil Procedure 59(a)(5) and 59(a)(6)).

Thus, the issues presented to this Court in this case as to the trial court’s rulings on the motions pursuant to Idaho Rules of Civil Procedure 59(a)(1), (a)(5), (a)(6), (a)(7), and 50(b), are whether the trial court stated with sufficient particularity the reasons for its rulings on the various motions for new trial and judgment n.o.v., or whether the bases for those rulings were obvious from the record itself; and whether the trial court abused its discretion in acting upon the motions for new trial.

In making the determination of the adequacy of the trial court’s stated reasons, we review the Memorandum Opinion and Order of the court entered the 29th day of April 1988 (second opinion and order) in the order in which the court dealt with the issues raised by the motions pursuant to Rules 59(a)(1), (a)(5), (a)(6), (a)(7), and 50(b) of the Idaho Rules of Civil Procedure. This portion of our opinion will address only the procedural sufficiency of the trial court’s rulings. The trial court’s substantive legal conclusions will be addressed separately.

1. The trial court denied defendants’ motions as to the question of liability for breach of employment contract, specifically holding that the finding of a breach of contract was “not contrary to the evidence nor against the weight of the evidence.”

The court had earlier set forth in detail an analysis of the criteria for its review established by Dinneen, Quick, and Robertson, as previously discussed. It stated that there was evidence to support the jury’s finding of liability, and that the jury’s verdict was not against the clear weight of the evidence. The stated reasons for denying the motion on that issue are adequate.

2. The trial court denied defendants’ motions for judgment n.o.v. on the issue of the liability of the defendants to the plaintiff for wages, benefits, and other compensation on the basis that there was evidence to support that verdict of the jury. The trial court went on, however, to grant defendants’ motion for new trial as to the damages awarded, for the reason that the “clear weight of the evidence indicates that agents of Simplot’s, including the corporate president, attempted to relocate O’Dell within the business in a position comparable to that which he held. The clear weight of the evidence indicates that the damages suffered by O’Dell were the result of his rejection of this opportunity.”

The foregoing findings were adequate reasons given with sufficient particularity by the court for both its denial of the motion for judgment n.o.v. as to the issue of liability and its grant of the motions for new trial as to the question of the damage award.

3. The trial court ruled, as a matter of law, that “front pay” was not a remedy available to the plaintiff under its retaliatory discharge statutory claim or breach of contract payment claim and therefore set aside the damage award based on I.R.C.P. 59(a)(6) as being contrary to the law. That explanation is adequate. The trial court went on to hold that if that determination was overturned on appeal the court alternatively granted a new trial based on the fact that the clear weight of the evidence showed that the plaintiffs rejection of “opportunity for reinstatement” caused his damage and that the evidence as to the likelihood of those damages was “too speculative” to support the verdict. These statements are also adequate explanation of the court’s reasons for granting the motion for new trial as to damages.

4. The trial court denied defendants’ motions for judgment n.o.v. and new trial as to Basabe’s liability for unlawful conduct under the Idaho Human Rights Act. The trial court specified the evidence which it considered in denying the motion. That explanation is clearly sufficient under the standards of this Court.

5. Defendants’ motions for judgment n.o.v. were denied on the question of Simplot Company’s liability to plaintiff for unlawful conduct under the Idaho Human Rights Act. The court explained that the evidence was clear that Basabe was the agent of Simplot at the time of the acts complained of in this count. That statement adequately elucidates the reasoning of the court in denying the motions.

6. The trial court denied defendants’ motions for judgment n.o.v. as to the amount of wages, benefits, and other compensation lost by plaintiff as a result of the unlawful acts of the defendants under the Idaho Human Rights Act, holding that there was sufficient evidence to support the verdict. The court did, however, grant defendants’ motion for new trial on the damage issue, pursuant to I.R.C.P. 59(a)(6), as being contrary to the weight of evidence. The court reasoned that the evidence showed that O’Dell’s actions made it “unworkable for him to return to the Land and Livestock Division,” and that O’Dell rejected a “comparable position.” The explanation of the reasons for the court’s action is adequate.

7. Defendants’ motion for new trial on the issue of damages for future loss of wages for violations of the Idaho Human Rights Act was granted. Anticipating possible appellate reversal on this issue, the trial court stated again that the plaintiff caused his own damage by rejecting an alternate job, and further, that the award was based on speculative evidence. These reasons as stated suffice to explain the rationale for granting the motion for new trial.

8. The trial court denied defendants’ motions for judgment n.o.v. and new trial on the issue of whether Basabe “willfully” violated the Idaho Human Rights Act. The court found sufficient evidence to support the verdict, and that the clear weight of the evidence was in accord with the verdict. That explanation is satisfactory.

9. The trial court denied the motion for judgment n.o.v. and new trial as to the “willful” nature of the acts of the Simplot Company, explaining that the willful acts of Basabe were attributable to the principal. That is sufficient explanation for the denial of the motion as to one of those “willful violations.” The trial court granted a new trial on the issue of the second “willful violation” by Simplot. The trial court determined that it was obliged to do so, as it had granted a new trial on the question of whether Simplot breached the reinstatement agreement with the plaintiff, which was the second “willful violation” of the Idaho Human Rights Act alleged against Simplot. This is also adequate explanation for the action taken by the court.

10. The trial court granted motions for new trial on the issue of intentional infliction of severe emotional distress under I.R.C.P. 59(a)(1), due to irregularities occurring during the trial. The court’s explanation was that it should not have submitted this issue to the jury after it had been withdrawn from the case at the close of plaintiff’s evidence and the defendants had had no opportunity to respond. This explanation is sufficient.

11. The trial court granted motion for new trial for the damages awarded plaintiff as a result of the intentional infliction of emotional distress claim, with the explanation that to do so was required in order to be consistent with the action taken in paragraph 10 above, which explanation is adequate reason for the action taken by the trial court.

12. The trial court denied the motion for judgment n.o.v. on the question of liability for breach of contract to reinstate the plaintiff. However, the court granted a new trial on that issue. The explanation of the trial court was that O’Dell’s resentment toward Basabe and Basabe’s past conduct was the reason O’Dell could not be reinstated in his former position by the company. Therefore, it was O’Dell’s conduct that resulted in his not being reinstated, not the company’s. These statements sufficiently explain the actions taken by the trial court.

13. (A) The trial court granted a new trial on the question of the amount of wages, benefits, and other compensation lost as a result of the breach of the contract to reinstate, again for the reasons that the damages sustained by plaintiff were the result of his own “conduct” which had already been defined in previous holdings by this trial court. Those reasons are adequate explanation for the action taken by the court.

(B) The trial court granted defendants’ motions regarding future damages on the basis that it was an error of law to have submitted the issue of future damages to the jury, as previously noted. The court went on to grant a new trial in the event its primary ruling was overturned on appeal, for the stated reasons that the plaintiff’s damages were attributable to his own conduct and that the evidence of future damage was too speculative. These reasons, in conjunction with the earlier analysis dealing with the question of future damages, were sufficient to explain the reasons for the trial court’s action.

14. (A) The loss of consortium issue was dependent upon the issue of intentional infliction of emotional distress, which the court had earlier held was erroneously submitted to the jury. The reasons stated by the trial court are adequate explanations for its actions.

(B) The same reasoning as paragraph 14(A) above on the damage issue of loss of consortium was applied by the court. Again, the reasons stated by the trial court in conjunction with the issues contained in paragraph 14(A) are adequate explanation for the trial court’s action.

15. (A) The trial court denied defendant’s motion for judgment n.o.v. and new trial on the issue of Simplot’s liability for punitive damages flowing from the initial breach of contract, noting the evidence of Basabe’s conduct in O’Dell’s initial termination and threats to his military career, which reasons are adequate explanation of the trial court’s ruling.

(B) The trial court denied defendants’ motions for judgment n.o.v. on the amount of damages awarded under the punitive damage verdict of the jury, but did not enter into the analysis and the findings required under Dinneen v. Finch and Quick v. Crane, to set aside the amount of the damage award. The court simply concluded that “the clear weight of the evidence indicates that only the $5,000 was justified.” This was not an adequate explanation for setting aside the award when the trial court in the same finding determined that “there was evidence on which to base a larger award.” Under these circumstances, the explanation of the trial court is not adequate to illuminate the rationale for setting aside the punitive damage award of the jury pursuant to Rule 59(a)(5) or 59(a)(6) of the Idaho Rules of Civil Procedure.

The requirement of Quick v. Crane, that the trial court must “state its particular reasons” for granting a motion for new trial is met when there is an adequate explanation to allow the reviewing court to understand the basis upon which the action was taken. The trial court must state both the factual basis for its decision and the particular rule of the Idaho Rules of Civil Procedure under which it is acting.

The trial court should require the same particularity of the party seeking relief pursuant to a motion for new trial, judgment n.o.v., or alternative additur or remittitur. Trial judges should not be required to attempt to guess at the applicable rule governing each charge of error claimed by the moving party. It is incumbent upon counsel to set out the legal basis for each motion, set forth the basis in the record upon which the motion rests, and specify the applicable Rule of Civil Procedure.

This Court has stated that, “[i]n the event that a motion for new trial fails to allege the grounds with sufficient particularity, the trial court should ordinarily deny the motion and this Court will affirm the denial.” Luther v. Howland, 101 Idaho 373, 375, 613 P.2d 666, 668 (1980).

16. In Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988), this Court held that the trial court had discretion to grant a new trial on less than all issues {i.e. damages only) which would be reversed only if the appellate court in examining the record concluded the following three factors were established:

(1) the damages awarded by the jury were inadequate, (2) the issue of liability was close, and (3) other circumstances indicated that the verdict was probably the result of prejudice, sympathy, or compromise, or that for some other reason, the liability issue was not actually determined by the jury.

Smallwood, 114 Idaho at 865, 761 P.2d at 1217.

None of the parties urge on appeal that there is any evidence that the verdict of the jury was the result of prejudice, sympathy, or was a compromise verdict, nor do we discern any such evidence. This essential element of Smallwood not being contested, we need not consider the other factors.

In Garnett v. Transamerica Insurance Services, 118 Idaho 769, 800 P.2d 656 (1990), we reiterated the rule for granting a motion for judgment n.o.v. or directed verdict, stating:

Neither motion should be granted if there is substantial evidence to justify submitting the case to the jury or to support the verdict once it has been returned.

Garnett, 118 Idaho at 780, 800 P.2d at 667 (citations omitted).

Our review of the evidence here leads us to the conclusion that reasonable minds could have reached more than one conclusion from the evidence adduced, after every legitimate inference was given to the nonmoving party and the trial court properly denied the motions for judgment n.o.v.

In conclusion, except as specifically noted above on the issues of punitive damages and damages for violations of the Idaho Human Rights Act, we determine that the trial court adequately set forth the basis for the rulings on the defendants’ motions for new trial.

BAKES, C.J., and BISTLINE and BOYLE, JJ., concur.

II.

FUTURE LOST WAGES.

The issue of lost wages was considered by the jury in the context of three theories: breach of the employment contract, breach of the contract to reinstate O’Dell to his former position, and retaliatory discharge under the Idaho Human Rights Act, I.C. § 67-5901-67-5912. The jury found liability on all three theories, and awarded O’Dell lost wages as damages, including $375,000 to compensate for future lost wages, otherwise known as “front pay,” and $35,000 to compensate for past lost wages.

Upon hearing post-trial motions, the trial court granted defendants’ motions as follows:

On both the breach of employment contract and retaliatory discharge claims the court concluded that the jury’s finding of liability was supported by the evidence, but that the $375,000 award for future lost wages was not. On those issues the court cited two grounds for the grant of a new trial. First, it found that the award was against the clear weight of the evidence, as O’Dell had failed to mitigate his damages because he declined the alternative position which he was offered by Simplot. Second, the court determined that as a matter of law, future lost wages are unavailable under both causes of action.

As to the breach of employment contract claim, the court was of the opinion that such damages are too inherently speculative where the employment contract is for an indefinite term. The court also found that as a matter of law, future lost wages was not authorized by statute for violations of the Idaho Human Rights Act.

The trial court also granted a new trial to defendants on the claim for breach of contract to reinstate, holding that the jury’s determination of liability and assessment of damages were both against the clear weight of the evidence, on the ground that O’Dell caused the breach by failing to accept alternative employment offered by Simplot. In addition, the court held that front pay is too speculative as a matter of law to be allowed as an element of damages, and that in any event the evidence supporting the award of future damages was too speculative to support the verdict.

A. FRONT PAY UNDER IDAHO HUMAN RIGHTS ACT.

In a case of first impression, we hold that front pay is a permissible element of damages under the Idaho Human Rights Act. In making this determination, we refer first to the language of the statute itself. Idaho Code § 67-5908(3), in listing the remedies available for violations of the Idaho Human Rights Act, provides that:

[I]f the court finds that unlawful discrimination has occurred, its judgment shall specify an appropriate remedy or remedies therefor. Such remedies may include, but are not limited to:

* * * * * *

(c) An order for actual damages including lost wages and benefits, provided that such back pay liability shall not accrue from a date more than two (2) years prior to the filing of the complaint____

Respondents claim that the phrase “such back pay,” which refers back to the lost wages recoverable under the statute, limits the term “lost wages” to back pay exclusively, and that if the legislature had intended to include front pay it would have been expressly mentioned as an available remedy.

Both back pay and front pay are subsets of the global term, “lost wages.” The words “lost wages” do not differentiate between wages lost before or after trial. This is illustrated by the fact that lost wages are to be awarded as an element of “actual damages,” which are commonly understood as those actual losses caused by the conduct at issue. In other words, the purpose of the lost wages element of damages is to restore to the plaintiff all of the benefits lost as a result of the violation of the Idaho Human Rights Act. There is no distinction drawn in the statute between actual damages suffered before the case reaches a courtroom from those arising after trial.

The words “such back pay” are included only as a limitation of the amount of back pay that may be awarded when compensating a plaintiff for lost wages. It does not limit the entire award of lost wages to back pay alone.

We are guided in our interpretation of the Idaho statute by federal law. The first section of the Idaho Human Rights Act declares that its purpose is to “provide for the execution within the state of the policies embodied in the federal Civil Rights Act of 1964, ... and the Age Discrimination in Employment Act of 1967____” I.C. § 67-5901. This Court has previously determined that the legislative intent reflected in I.C. § 67-5901 allows our state courts to look to federal law for guidance in the interpretation of the state provisions. Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355 (1982); Bowles v. Keating, 100 Idaho 808, 606 P.2d 458 (1979).

Front pay is allowed in federal case law under the equal employment provisions of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e through 2000e-17. This result has been reached in most federal circuits despite the fact that the federal statute, like the Idaho statute, does not expressly refer to “front pay.” 42 U.S.C. § 2000e-5(g); Walsdorf v. Board of Comrs., 857 F.2d 1047 (5th Cir.1988); Shore v. Federal Express Corp., 777 F.2d 1155 (6th Cir.1985); Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir.1984); Fadhl v. San Francisco, 741 F.2d 1163 (9th Cir.1984); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945 (10th Cir.1980); Hill v. Western Elec. Co., 596 F.2d 99 (4th Cir.), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979).

Likewise, the Age Discrimination in Employment Act (ADEA), does not expressly refer to front pay, back pay, or lost wages, but front pay is nevertheless allowed. 29 U.S.C. § 626(b); E.E.O.C. ¶. Prudential Federal Sav. & Loan Asso., 763 F.2d 1166 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Maxfield v. Sinclair Int’l, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct, 796, 88 L.Ed.2d 773 (1986); Davis v. Combustion Engineering, Inc., 742 F.2d 916 (6th Cir.1984); Cancellier v. Federated Dep’t Stores, 672 F.2d 1312 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982).

Respondents have cited certain United States District Court cases which hold that front pay is not available under Title VII and the ADEA. However, as discussed above, our determination is based primarily upon the language of the Idaho statute and guided by federal case law. We acknowledge that several circuits have arrived at a different holding, but even these jurisdictions do not preclude an independent determination by this Court.

Our conclusion on the issue of front pay is bolstered by policy considerations. If damages were measured by the interval between the wrongful conduct and the date of trial, plaintiff’s attorneys would have great incentive to procure trial delays in order to increase the amount of compensable damages. In addition, to cut off the measure of damages as of the date of trial would preclude full compensation to people injured by discriminatory practices. The alternative, to allow full compensation to injured plaintiffs for actual losses, is consistent with the terms of the statute and the policy “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). Although future damages are by their nature somewhat uncertain, “any ambiguity in what the claimant would have received but for discrimination should be resolved against the discriminating employer.” Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614 (6th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984).

To clarify the scope of front pay as an element of damages, we first note that future lost wages or front pay is an alternative to reinstatement, Maxfield v. Sinclair Int'l, 766 F.2d at 796, and may be granted only where reinstatement is made unreasonable by hostility between the parties, Hoffman v. Nissan Motor Corp., 511 F.Supp. 352 (D.N.H.1981), or lack of vacancy in the position Wangsness v. Watertown School Dist., 541 F.Supp. 332 (D.S.D.1982). The amount of future lost wages or front pay to be awarded is a matter to be determined by the trier of fact upon review of the evidence in the record. Relevant considerations include the plaintiff’s salary history, scheduled or mandated pay raises, and a finding based on the evidence in the record of the time which it will take the plaintiff to find comparable employment with a commensurate salary, at which time the award of front pay should be discontinued.

BISTLINE, JOHNSON and BOYLE, JJ., concur.

B. FRONT PAY AS AN ELEMENT OF CONTRACT DAMAGES.

We review the trial court’s determination that future lost wages are too speculative as a matter of law to be permitted as an element of contract damages. The fact that contract damages are not capable of exact proof does not preclude their availability as a matter of law. The rule is that the measure of damages is such as will compensate for the loss suffered as the result of a breach of contract. Beal v. Mars Larsen Ranch Corp., 99 Idaho 662, 586 P.2d 1378 (1978); Nelson v. Hazel, 91 Idaho 850, 433 P.2d 120 (1967). When considering an award of damages for lost future benefits, the question is whether the plaintiff has proven the damages relating to future losses with reasonable certainty. Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978).

Where a claim is asserted for the recovery of future benefits, the burden of proof is upon the plaintiff to prove with reasonable certainty the amount of the loss caused by the conduct of the defendant. In the context of an employment contract for an indefinite term, a plaintiff might resort to evidence such as employment history to show likelihood of future employment.

Any claim of damages for prospective loss contains some element of uncertainty, but that fact is not fatal to recovery. “[T]he jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly____ ‘[Jjuries are allowed to act on probable and inferential as well as [upon] direct and positive proof.’ ” Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946), quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 564, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931). “The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” Bigelow, 327 U.S. at 265, 66 S.Ct. at 580.

Thus, we hold that the district court erred in its determination that a breach of an employment contract for an indefinite term precludes the recovery of future lost wages as a matter of law. We reverse the district court’s determination that future lost wages are too speculative as a matter of law to be permitted as an element of contract damages.

BAKES, C.J., and BISTLINE, JOHNSON and BOYLE, JJ., concur.

III.

BREACH OF CONTRACT TO REINSTATE.

The district court granted Simplot a new trial on the issue of future lost wages as damages on the claim for breach of contract to reinstate. The trial court reasoned that future damages were too speculative to be predicted with any certainty and also that O’Dell caused the breach of the contract by rejecting the alternate position at the Food Division.

The analysis to be made in reviewing this decision is set out in Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993 (1990). In determining whether or not there was an abuse of discretion committed by the trial court, the questions we must ask are:

(1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

119 Idaho at 94, 803 P.2d at 1000.

In its Memorandum Opinion and Order issued on February 5, 1988, the trial court fulfilled the first requirement and correctly perceived the issue as one of discretion by quoting Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), for the proposition that a motion to grant a new trial is within the sound discretion of the trial court.

The next step in the process is to determine whether the trial court abused its discretion in granting a new trial as to liability for the breach of contract to reinstate. To determine whether the trial court abused its discretion, we must ascertain whether the trial judge has given “due consideration to the facts and circumstances of the case, and correctly applied the law thereto.” Quick v. Crane, 111 Idaho 759, 772, 727 P.2d 1187, 1200 (1986).

As we have stated earlier, future lost wages as damages are not too speculative so as to deny recovery. Using the proper guidelines, future lost wages are an integral part of an ex-employee’s damages for retaliatory discharge. It was error for the trial court to grant a new trial as to liability based upon its determination that future lost wages were not available as an element of contract damages.

Next we review the trial court’s determination that O’Dell’s conduct prevented him from being reinstated to his position at the Land and Livestock Division. The burden of proving the existence of a contract and the fact of its breach is upon the plaintiff. Johnson v. Albert, 67 Idaho 44, 170 P.2d 403 (1946). Once those facts are established, the defendant has the burden of pleading and proving affirmative defenses which legally excuse performance of the contract. Pace v. Hymas, 111 Idaho 581, 726 P.2d 693 (1986); Harman v. Northwestern Mut. Life Ins. Co., 91 Idaho 719, 429 P.2d 849 (1967); Paurley v. Harris, 77 Idaho 336, 292 P.2d 765 (1956). According to the jury’s verdict, this defense was not proven. The trial court differed in its interpretation of the evidence, and found, by the clear weight of the evidence, that O’Dell’s alleged feelings were adequate justification for a breach of contract by Simplot. In this determination, the trial court abused its discretion.

A review of the record does not disclose any evidence which would have made the performance of the contract so unworkable as to justify its breach. There was some testimony in the record that O’Dell did not admire Basabe and others with whom he had worked. However, that fact does not support the assertion that O’Dell’s own conduct was the cause of Simplot’s alleged inability to reinstate him to the Land and Livestock Division.

O’Dell’s feelings concerning some of the Simplot employees in the Land and Livestock Division were the result of various incidents during his tenure there. After Wilda Seibel utilized O’Dell’s assistance in pursuing a grievance against Basabe, O’Dell testified that relationships in the office changed. He felt he was repeatedly asked in one-on-one interviews with Basabe to protect the company’s interests before those of Seibel. At one point Basabe informed him that he had hired a private investigator to investigate Seibel, which fact O’Dell reported to Steve Beebe, Simplot’s corporate counsel. O’Dell also reported to Beebe that Ron Parks, Division Purchasing Manager, was attempting to secure a photograph of Seibel.

O’Dell testified that until that time his relationship with Basabe had been good, but that abruptly, approximately two months before his discharge, Basabe’s attitude toward him changed. It was about this time that he was informed by Beebe that Basabe had become aware of the fact that O’Dell was reporting follow up information on the Seibel incident to the corporate office. Beebe warned O’Dell that there was likely to be strain in the relations between himself and Basabe, and O’Dell testified that the atmosphere in the office changed for the worse. Various proposals submitted for Basabe’s review were routinely disapproved. Basabe’s secretary testified to keeping records of O’Dell’s incoming phone calls and meetings relating to the Seibel matter and his military career on her own initiative, and reporting the results to Basabe. According to a transcript of the tape recorded conversation made when O’Dell was fired, O’Dell’s longstanding ca,reer in the National Guard was threatened by Tom Basabe. Following his termination he heard accusations from corporate personnel that he was intimate with Wilda Seibel, and that he had been disloyal to Basabe and the company. After being fired, he testified that he was “stonewalled” by Gary Wallis, who was reviewing his grievance, and felt that he could not get any information from the company about developments in his case.

These types of incidents naturally created some ill feelings on O’Dell’s part. Yet O’Dell testified that he had weathered such a situation several years earlier, when there was a prior conflict between Basabe’s conduct and company policy. He testified that he pursued grievance procedures in an attempt to get his job back because he liked his job and liked the company.

When called upon to give deposition testimony in the case pursued by Wilda Seibel, O’Dell recounted the feelings he retained as a result of these incidents leading to his termination. However, during the trial of his own case O’Dell related those statements to specific incidents, and stated that they were not broad and irrevocable attitudes. Despite defense counsel’s efforts on cross-examination to characterize those responses as evidence of a vitriolic hatred on O’Dell’s part against most of the managers of the Land and Livestock Division, O’Dell repeatedly qualified those statements, testifying that they were made in relation to specific incidents, and that those relationships would heal with time.

The record does not contain any evidence of conduct on O’Dell’s part which suffices to justify Simplot’s breach of contract. O’Dell’s feelings were the result of the conduct of others within the Division, and not due to any fault of his own.

We hold that the court’s ruling did amount to a manifest abuse of discretion. Although an appellate court may not be in a position to “weigh” evidence in reviewing a trial court’s decisions, Quick v. Crane, 111 Idaho at 770, 727 P.2d at 1198, if appellate review is to mean anything at all, this Court must have the power to review the record, as we have done, and evaluate whether the trial court’s decisions are supported by the record. In this case, the trial court’s decision did not have the support of a factual basis, and therefore we hold that the grant of new trial on this issue was a manifest abuse of discretion. Accordingly, we reverse the grant of a new trial to defendants on the issue of liability for breach of the contract to reinstate.

Because we reach this conclusion on the second element of the Sun Valley analysis, there is no need for further inquiry into the third element. Thus, we will not delve into the issue of whether the trial court reached its decision by an exercise of reason.

BISTLINE, JOHNSON and BOYLE, JJ., concur.

IV.

DAMAGES.

Next, we review the decision of the trial court granting a new trial on the question of damages in the form of future lost wages for the breach of employment contract, breach of contract for reinstatement, punitive damages, and violations of the Idaho Human Rights Act. We must determine whether “the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it.” State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Having already determined that future lost wages or front pay is a proper element of O’Dell’s damages, we turn our attention to the trial court’s grant of a new trial on the issue of damages suffered by O’Dell. The trial court found that the determination of future lost wages was too speculative to support the verdict. Although we find that this finding of the trial court was error, we affirm the grant of a new trial on the issue of damages.

The trial court found the $375,000 for future loss of wages under the breach of employment contract and the breach of contract to reinstate claims to be contrary to the clear weight of the evidence and too speculative in nature to be the basis for the verdict rendered. This determination by the trial court is within the outer boundaries of its discretion and permitted by I.R.C.P. 59(a)(6). We further note that the trial court was without the benefit of this Court’s holding that future lost wages or front pay is permitted for the breach of employment contract and for the breach of contract to reinstate when it held such loss of future wages to be too speculative in nature. We affirm the trial court’s grant of a new trial on the issue of future loss of wages for breach of employment contract and breach of contract to reinstate.

Next, we review the award of $35,-000 for past economic loss (past lost wages). This portion of the jury verdict was left undisturbed by the trial judge. We hold that there was sufficient evidence to support this award, therefore, we affirm the jury’s award as to past lost wages.

Next, we review the trial court’s grant of remittitur of punitive damages. In granting remittitur or in the alternative, a new trial, trial court stated:

15b. In the court’s view a punitive damage award of $5,000 would be justified. Nevertheless, the court will not grant the motions for judgment notwithstanding the verdict and substitute $5,000 for the $1,000,000 awarded by the jury, since there was evidence on which to base a larger award. However, in the court’s view, the clear weight of the evidence indicates that only the $5,000 was justified. Therefore, a new trial is granted to determine the amount of punitive damages flowing from the initial breach of employment contract.

This reasoning is an insufficient basis to support either remittitur or the grant of a new trial. We remand to the trial court for further clarification of its reasoning for granting remittitur and new trial. In granting remittitur or in the alternative new trial, the trial court did not make the necessary analysis as required by I.R.C.P. 59(a)(5). On remand, the trial court must state with specificity its reasoning in conformance with the standards that we have set forth in Dinneen v. Finch and Quick v. Crane. Without these specific findings, we are unable to determine whether the trial court abused its discretion on the issue of punitive damages.

The jury awarded three (3) $1,000 punitive damage awards pursuant to the Idaho Human Rights Act, one award against Basabe and two awards against Simplot. The trial court held that the award against Basabe was supported by the evidence and that one (1) award against Simplot was warranted as there was sufficient evidence that Mr. Basabe, acting on behalf of the Simplot Company, willfully violated the Act in his retaliatory discharge of O’Dell, but granted a new trial as to whether there was a second violation by Simplot’s. We find the trial court did not abuse its discretion and that it reached this decision by an exercise of reason. Accordingly, we affirm the trial court’s determination that the two $1,000 punitive damage awards were warranted and the grant of a new trial as to a possible second violation by Simplot.

BAKES, C.J., and BOYLE, JJ., concur. JOHNSON, J., concurs and dissents.

1 . O’Dell, suspecting the worst, took a hidden tape recorder into Basabe's office and tape recorded the entire incident. Thus, the quote.

2 . Hake v. DeLane and Robertson v. Richards discuss the grant of a new trial where the verdict is not in accord with the clear weight of the evidence. Inherently, every verdict consists of two components. The first component establishes liability (or non-liability) on the claim. The second component establishes the relief to be afforded the parties. A careful reading of these cases establishes that this Court was analyzing a motion for a new trial as to the liability component of the verdict under Rule 59(a)(6). This Court has used the term "verdict” to apply both to "liability” issues and “damage" issues.

3 . Garnett v. Transamerica Insurance Services, 118 Idaho 769, 800 P.2d 656 (1990); Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (1986); Vannoy v. Uniroyal Tire Co., 111 fP.2d 648 (1985); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (1983); Sheets v. Agro-West, Inc., 104 Idaho 880, 664 P.2d 787 (Ct.App.1983); Luther v. Howland, 101 Idaho 373, 613 P.2d 666 (1980); Tibbs v. Sandpoint, 100 Idaho 667, 603 P.2d 1001 (1979); Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979); Ryals v. Broadbent Dev. Co., 98 Idaho 392, 565 P.2d 982 (1977), overruled on other grounds, Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978); Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969), overruled, Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969); Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Mendenhall v. MacGregor Triangle Co., 83 Idaho 145, 358 P.2d 860 (1961); Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956); Walker v. Distler, 78 Idaho 38, 296 P.2d 452 (1956); Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021 (1953); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950), overruled, Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972); Poston v. Hollar, 64 Idaho 322, 132 P.2d 142 (1942); In re Randall's Estate, 60 Idaho 419, 93 P.2d 1 (1939) (recognizing the rule that granting a new trial on conflicting evidence is discretionary with the trial court although the order granting the new trial was reversed as an abuse of discretion); Riggs v. Smith, 52 Idaho 43, 11 P.2d 358 (1932); Egbert v. Twin Falls Canal Co., 52 Idaho 39, 11 P.2d 360 (1932); Marker v. McCue, 50 Idaho 462, 297 P. 401 (1931); Stone v. Matthies, 49 Idaho 277, 287 P. 951 (1930); Tidd v. Northern P.R. Co., 46 Idaho 652, 270 P. 138 (1928); Turner v. First Nat. Bank, 42 Idaho 597, 248 P. 14 (1926); Boomer v. Isley, 42 Idaho 547, 246 P. 966 (1926); Baillie v. Wallace, 22 Idaho 702, 127 P. 908 (1912); Penninger Lateral Co. v. Clark, 20 Idaho 166, 117 P. 764 (1911); Say v. Hodgin, 20 Idaho 64, 116 P. 410 (1911); Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014 (1909); Buckle v. McConaghy, 12 Idaho 733, 738, 88 P. 100, 101 (1906) ("It is sufficient to say that there is a substantial conflict and the rule is that, where the evidence presents a substantial conflict and the trial court, who saw and heard the witnesses and saw and heard all that was done and said in the case, has granted a new trial, his order will not be disturbed on appeal.”) (Citations omitted.); Jones v. Campbell, 11 Idaho 752, 84 P. 510 (1906); Brossard v. Morgan, 6 Idaho 479, 56 P. 163 (1899); Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555 (1896).