concurring in part and dissenting in part:
I
I concur in the result of Part I of Bistline, J.’s, opinion affirming the trial court’s rejection of Simplot’s offered exhibit, the certified copy of the minutes of the Minidoka County commissioners creating the herd district in the area where the accident occurred. Ordinarily, whether cattle or sheep are being “herded” rather than “trailed,” as those terms are defined in our early case of Phipps v. Grover, 9 Idaho 415, 75 P. 64 (1904), would be a question of fact for the jury. In the trial of such an issue, evidence of the creation of a herd district at the area of the accident would be relevant and admissible. However, in this case, the appellant Simplot was not asserting that a triable issue of fact existed regarding whether the sheep were being “herded” rather than “trailed”; rather, Simplot was arguing that there was no distinction between those terms and, therefore, the trial court erred in not instructing the jury that the plaintiff Etcheverry was negligent as a matter of law for violation of the herd district law. I agree with the Court’s conclusion that the trial court did not err in concluding that the offered evidence, a certified copy of the herd district resolution, did not establish as a matter of law that Etcheverry was negligent per se. There being no factual issue over whether the sheep were being herded rather than trailed, the trial court did not commit reversible error in rejecting the proffered exhibit. Accordingly, I concur in the result of Part I of Justice Bistline’s opinion.
II
However, I cannot agree that the case was defended frivolously, unreasonably or without foundation, within the meaning of I.R.C.P. 54(e)(1), in the magistrate court. Accordingly, I would reverse the magistrate court’s award of attorney fees.
Aside from appellant’s argument at trial that respondent Etcheverry had violated the herd district ordinance and was therefore negligent per se, the appellant Simplot also asserted the defense at trial that the respondent Etcheverry was also negligent because his herd of sheep totally obstructed the road near the crest of a hill, and he knew that oncoming traffic could not see the obstruction. Simplot asserted that Etcheverry was negligent in failing to post a flagman or a warning vehicle in front of the herd to warn oncoming traffic approaching from the other side of the hill that his band of sheep had entirely blocked the highway. Based upon the evidence, the jury could well have concluded that the respondent Etcheverry was equally, or perhaps more negligent than the driver of the Simplot vehicle, and thus entitled to no damages. Simplot did not act frivolously, unreasonably or without foundation in asserting its right to a jury trial on that factual issue, and accordingly, the magistrate court erred in granting attorney fees under I.R.C.P. 54(e)(1).
Furthermore, it is apparent that the court’s motivation in awarding attorney fees was the failure of the appellant Sim*21plot to enter into meaningful settlement negotiations. However, that is not one of the considerations authorized by I.R.C.P. 54(e)(1) for the granting of attorney fees, as this Court held in Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982). As Justice Bistline stated in his special concurring opinion in Payne v. Foley, supra at 763, 639 P.2d 1126, “[T]he language of the Court’s opinion [in Payne v. Foley ] ... in effect holds that there is no authority in a trial court to insist upon, oversee, or second-guess settlement negotiations, if any, and certainly no authority to impose sanctions for ‘bad faith’ bargaining.”
Accordingly, for both reasons, the magistrate court’s award of attorney fees to Etcheverry was erroneous and should be reversed.
DONALDSON, J., concurs.