Bissen v. Fujii

• Decision Date: 12 March 1970
• Docket Number: No. 4846,4846
• Citation: 466 P.2d 429,51 Haw. 636
• Parties: Naomi D. BISSEN v. Chiyoko FUJII.
• Court: Hawaii Supreme Court

Page 429

466 P.2d 429

51 Haw. 636

Naomi D. BISSEN v. Chiyoko FUJII.

No. 4846.

Supreme Court of Hawai'i.

March 12, 1970.

Syllabus by the Court

1. On June 7, 1968 this court recognized the doctrine of contributory negligence to be the rule of this jurisdiction and such rule should apply to a cause of action which accrued on November 12, 1966.

2. The legislature enacted a comparative negligence statute which became effective on July 14, 1969; therefore, this court should use judicial restraint and refrain from applying the doctrine of comparative negligence in all suits where the causes of action accrued before that date.

Stuart M. Cowan, Honolulu, (Greenstein & Cowan, Honolulu, of counsel), for appellant.

Herbert K. Shimabukuro, Honolulu (Libkuman, Shimabukuro & Ventura, Honolulu, of counsel), for appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON, and KOBAYASHI, JJ.

ABE, Justice.

Plaintiff, Naomi D. Bissen, and defendant, Chiyoko Fujii, were involved in an automobile accident at an intersection in the City of Honolulu on November 12, 1966. An action was filed by plaintiff against defendant in the First Circuit Court on July 25, 1968. Defendant in her answer raised the defense of contributory negligence. Plaintiff's motion to strike the defense on the ground that comparative negligence and not contributory negligence was the law of this jurisdiction was denied and plaintiff was allowed to take this interlocutory appeal from the order denying the motion to strike.

In Loui v. Oakley, 50 Haw. 260, 265, 438 P.2d 393, 397 (1968), this court stated in a footnote that it may be time to reconsider the judge-made rule of contributory negligence, citing Maki v. Frelk, 85 Ill.App.2d 439, 229 N.E.2d 284, 286 (1967), wherein the Illinois appellate court espoused the doctrine of comparative negligence in place of contributory negligence.

It is interesting to note that the Illinois Supreme Court reversed the ruling of the appellate court in Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968). The court refused to replace the doctrine of contributory negligence with the rule of comparative negligence and stated at page 196, 239 N.E.2d at page 447: 'such a far-reaching change, if desirable, should be made by the legislature rather than by the court.' It went on to say that it considered the legislature to be manifestly in a better position than the court to consider the numberous problems involved in the adoption of the comparative negligence doctrine.

Our legislature, in the 1969 session, enacted a comparative negligence statute, HRS § 663-31, which became effective on July 14, 1969. The statute is not applicable to this suit under a provision reading that it 'shall not be retroactive and shall affect only those claims accruing after its effective date.'

The sole issue before us is whether the doctrine of contributory negligence or comparative negligence should be applied in this case.

At the time the claim for relief in this action accrued on November 12, 1966, the rule of contributory negligence was the recognized law of this jurisdiction. In Loui v. Oakley, supra, decided on March 1, 1968, a footnote implicitly acknowledges this. Also as late as June 7, 1968, both the majority and dissenting opinions in Young v. Price, 50 Haw. 430, 442 P.2d 67 (1968) recognized the doctrine of contributory negligence to be the rule of our jurisdiction. ¹

Article III, Section 1 of our State Construction vests the legislative power of the State in the legislature. The legislative power has been defined as the power to enact laws and to declare what the law shall be. Gas & Electric Sec. Co. v. Manhattan & Queens Traction Corp., 266 F. 625 (2d Cir. 1920); People v. Puckett, 324 Ill. 293, 155 N.E. 319 (1927); Browne v. City of New York, 213 App.Div. 206, 211 N.Y.S. 306 (1925), aff'd, 241 N.Y. 96, 149 N.E. 211 (1925). Under this power the legislature also has authority to enact statutes to modify or change, for the future, common law as may have been established by decisions of courts. People v. Grand Trunk Western R. Co., 3 Mich.App. 242, 142 N.W.2d 54 (1966); S. H. Kress & Co. v. Superior Ct., 66 Ariz. 67, 182 P.2d 931 (1947). Certainly, a legislative enactment adopting the doctrine of comparative negligence in place of the common law rule of contributory negligence is strictly within the legislative power. The act in no way attempts to interfere with the judicial functions and no one has questioned its legality as an unconstitutional encroachment of the judicial branch of government.

We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.

Although the courts frequently venture into judicial law-making where there are gaps in substantive law, particularly in the field of torts, once the legislature has acted, it is not for us to evaluate the wisdom of legislative action, including the determination regarding retroactive or prospective applicability. Even Professor Fleming James, Jr., coauthor of Harper and James, The Law of Torts (1956), and who is one of those 'who accept or welcome the present regeneration of judicial law making in the field of torts,' states: 'All concede that it is proper legislative function to make and change the law and that the courts should always respect the exercise of this function by a coordinate branch of government.' ²

It should be remembered that though this court makes law on a case-by-case method, it is not a legislature. Further, at this time, we should not engage in 'wholesale' legislation such as the adoption of the doctrine of comparative negligence in place of contributory negligence. Such act on our part may frustrate the trial courts in their attempt to solve a countless number of questions and problems with which they will be faced.

The statute is effective for tort claims which accrued after July 14, 1969, and to adopt the doctrine of comparative negligence for this case would create unnecessary and unwarranted confusion in the law. We should use judicial restraint and not leave any implication that we are trying to 'outdo' the legislature.

Affirmed.

LEVINSON, Justice (dissenting).

I dissent.

I would have this court adopt the doctrine of pure comparative negligence for those cases, not yet final, which arose prior to the effective date of HRS § 663-31 (Supp.1969). In order to reach this conclusion it is necessary to examine the context in which this case arises. This background provides the case with some peculiar and, I think, controlling features.

On March 1, 1968 in Loui v. Oakley, 50 Haw. 260, 438 P.2d 393 (1968), a case which provided for rough approtionment of damages among several successive tortfeasors, this court signaled the members of the Hawaii bar and other interested parties that contributory negligence, as a judge-made rule of law, was subject to being judicially replaced by a comparative negligence standard. 50 Haw. at 265 n. 5, 438 P.2d at 397 n. 5. ¹ The signal thus given, it was only a matter of time before a case with the proper facts was presented to this court on appeal. ² Indeed, one trial judge began giving comparative negligence instructions shortly thereafter. E. g., Kono v. Auer, Civ. No. 17315 (First Cir. Ct. May 10, 1968), rev'd on other grounds 51 Haw. 273, 458 P.2d 661 (1969).

Ironically, yet quite predictably, the 1969 Hawaii legislature enacted a comparative negligence statute, HRS § 663-31 (Supp.1969). The new statute, which became effective July 14, 1969, approximately seven months after the notice of appeal in the present case was filed, provided for a 'partial' or 'modified' form of comparative negligence. Under the new statute where the negligence of the person seeking recovery is less than that of the person against whom the recovery is sought, recovery is not barred, but damages allowed are diminished in proportion to the amount of negligence attributable to the person seeking recovery. If the negligence of the person seeking recovery is greater than that of the person against whom recovery is sought he is barred from recovery just as he was under the rule of contributory negligence. The entire act is set out in the footnote below. ³

The importance of HRS § 663-31 to the present case is that the Hawaii legislature recognized the unsoundness of the doctrine of contributory negligence as a defense in negligence suits. However, the act was drafted so as not to apply retroactively. 'The provisions of this Act shall not be retroactive and shall affect only those claims accruing after its effective date (July 14, 1969).' Act 227 § 2, Session Laws of Hawaii, 1969 Reg.Sess. 423.

The task of the court in this case is to determine in these circumstances (1) whether this court should act at all with respect to those claims accruing before the effective date of HRS § 663-31; and, (2) assuming that some action is to be taken, which rule of comparative negligence ought to be adopted during that period. My position is that this court should act and that the 'pure' form of comparative negligence should be adopted.

I. JUDICIAL OVERRULING OF THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE.

The doctrine of contributory negligence has been widely recognized as antiquated and unrealistic; its disabilities have been will chronicled in the literature. ⁴ One distinguished writer has even prepared a ready-made opinion overruling the judge-made doctrine of contributory negligence. That opinion succinctly and carefully states the most forceful policies behind replacing contributory negligence with some form of comparative negligence. Professor Robert E. Keeton writes:

'The rule that contributory negligence is a complete bar, if ever a wise doctrine, was supportable only under circumstances that no longer exist...