Alamida v. Wilson

• Decision Date: 05 April 1972
• Docket Number: No. 5131,5131
• Citation: 53 Haw. 398,495 P.2d 585
• Parties: Dianne ALAMIDA, Plaintiff, v. Diana WILSON, Defendant and Third-Party Plaintiff-Appellee, v. Gordon MORSE et al., Defendants and Third-Party Defendants-Appellees, and COUNTY OF HAWAII, Defendant and Third-Party Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 585

495 P.2d 585

53 Haw. 398

Dianne ALAMIDA, Plaintiff, v. Diana WILSON, Defendant and Third-Party Plaintiff-Appellee, v. Gordon MORSE et al., Defendants and Third-Party Defendants-Appellees, and COUNTY OF HAWAII, Defendant and Third-Party Defendant-Appellant.

No. 5131.

Supreme Court of Hawai'i.

April 5, 1972.

Syllabus by the Court

1. The requirements of jurisdiction are grounded in the state's inherent judicial power while requirements of venue are grounded in convenience to litigants.

2. The allocation of judicial business among various circuit courts is an allocation based upon convenience of parties and not upon the judicial power of such courts; as such, the allocation is a requirement of venue, which may be waived by a party.

3. The addition of third-parties defendant will not disturb venue once properly laid in one of the judicial circuits of this state.

4. A party who settles prior to suit on a tort claim and is later found not negligent in an action for contribution is not a joint tort-feasor within the meaning of HRS § 663-11 and is therefore not entitled to contribution.

5. One who settle under threat of civil suit is not classified as a volunteer and is entitled to recover from the actual tort-feasor under the general principle of subrogation.

6. Where an appellant does not set forth in his brief the manner in which the alleged errors were raised at the trial court the supreme court may decline to consider such matters.

George S. Yuda, Asst. Corp. Counsel, and Stephen K. Yamashiro, Deputy Corp. Counsel, Hilo (Wendell Kimura, Corp. Counsel with them on briefs), for defendant-appellant and third party defendant County of Hawaii.

Ronald D. Libkuman, Libkuman, Shimabukuro & Ventura, Honolulu, for defendant and third party plaintiff-appellee Diana Wilson.

Before RICHARDSON, C. J., ABE, LEVINSON, KOBAYASHI, JJ., and VITOUSEK, Circuit Judge, for MARUMOTO, J., disqualified.

RICHARDSON, Chief Justice.

On March 14, 1969 plaintiff suffered injuries while riding as a passenger in the upper portion of a camper vehicle driven by defendant Wilson. Although the wheels of the camper vehicle did not leave the road pavement, the upper portion of the vehicle struck a utility pole which stood at the base seven inches from the face of the curb but which inclined slightly toward the center of the roadway. Plaintiff filed her complaint against defendant Wilson in the Circuit Court of the First Circuit. Defendant Wilson brought in as third-party defendants Gordon Morse, ¹ Hawaiian Telephone Company, Hilo Electric Light Company, John Keawe and the County of Hawaii. Before commencement of trial, defendant Wilson and all third party defendants except the County of Hawaii paid the plaintiff $118,000.00 in return for a release which ran to all defendants, including the non-settling County of Hawaii. The posture of the case then became that of an action for contribution by the settling defendants against the County of Hawaii. The jury found the County 30% at fault. The court rendered judgment against the County and in favor of the settling defendants in the amount of $35,400 or 30% of the settlement of $118,000. A court order pursuant to a stipulation by the settling defendants apportioned the judgment as follows: $8,106.60 in favor of Hawaiian Telephone Company, $6,973.80 in favor of Hilo Electric Light Company, Ltd., and $20,319.60 in favor of defendants Morse and Keawe.

I

Appellant County of Hawaii urges on appeal that under HRS § 603-36, ² the Circuit Court of the First Circuit lacked jurisdiction or in the alternative that venue was improper.

We think that Kaui v. Kauai County, 47 Haw. 271, 386 P.2d 880 (1963) correctly held that the statutory language of HRS § 603-36(9) pertains not to jurisdiction but to venue. The two concepts should not be confused. The requirements of jurisdiction are grounded in the state's inherent judicial power while requirements of venue are grounded in convenience to litigants. Article V, Section 1 of the Hawaii Constitution provides: 'The judicial power of the State shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. The several courts shall have original and appellate jurisdiction as provided by law.' The judicial power is an aspect of the power of a sovereign over a certain geographic territory; it derives from a generally recognized duty of the sovereign to regulate the relationship of individuals to the sovereign and the relationship of individuals inter se. Jurisdiction is a concept closely allied with judicial power. One of the aspects of jurisdiction involves the division and allocation of the sum total of the judicial power among the various courts of the state. This allocation and division may quite properly proceed on the basis of the amount in controversy, the subject matter of the controversy, or the posture of the controversy within the appellate process. The term 'jurisdiction' may also be used to describe the territorial limits of the sum total of the sovereign's judicial power. Where judicial circuits or divisions are created within the state, however, the allocation of the judicial business among the various circuits or divisions is an allocation based upon convenience to parties. Limitations which localize actions within a given judicial circuit or division are venue requirements. Since venue requirements are based upon concepts which are unrelated to judicial power, requirements of venue may be waived. Kaui v. Kauai County, supra. We think that HRS § 603-36(9) relates to matters of convenience to parties; accordingly the statute is one pertaining to venue.

It is clear that at the time of the initiation of suit, venue was proper inasmuch as defendant Wilson was domiciled in the First Judicial Circuit. The addition of the third parties defendant created a situation which the County asserts constitutes improper venue insomuch as the cause of action arose in the Third Judicial Circuit, where the majority of parties defendant were domiciled. The County argues that a finding that venue in the First Judicial Circuit is proper allows the parties to achieve by the device of the third-party complaint a result that could not have been achieved had plaintiff sued all six parties defendant in her original complaint. The County asserts that this practice is impermissible because cause such practice involves the use of third-party practice under H.R.C.P. Rule 14 to modify the statutory requirement of venue, contrary to H.R.C.P. Rule 82. ³

Rules 14 and 82 of the Federal Rules of Civil Procedure contain language substantially the same as H.R.C.P. Rules 14 and 82. Under the weight of recent authority interpreting Federal Rules 14 and 82, with which we agree, where a third-party complaint has been filed, venue may rest on the main proceeding, ⁴ on the theory that the third-party complaint is under the ancillary jurisdiction of the court. Accordingly, we hold that under our Rules of Civil Procedure and HRS 603-36(9) the addition of third-parties defendant will not disturb venue once properly laid in one of the judicial circuits of this state.

II

The County's position is that the stipulation and order awarding $20,319.60 ⁵ to Morse and Keawe harmed the County because Morse and Keawe were mere volunteers whose gratuitous payment accrued to the negligent co-defendants as a class; ⁶ accordingly, the County argues, the stipulation to pay money to Morse and Keawe without consent of the County resulted in a gratuitous transfer of the County's property. Although we disagree with the trial court's use of the equitable principle of contribution to support the payment to Morse and Keawe, we think the payment was otherwise proper. Third-party defendants Morse and Keawe are not joint tort-feasors within the meaning of HRS § 663-11, as they are not persons 'jointly or severally liable in tort for the same injury to person or property.' Accordingly, they are not entitled to recovery on the theory of contribution as set forth in HRS § 663-12. ⁷

Although we think that there can be no recovery on the theory of contribution, we do think that Morse and Keawe are entitled to recover from the co-defendants found liable, in this case the County, on the equitable principle of subrogation which was described by this court in Kapena v. Kaleleonalani, 6 Haw. 579, 583 (1885) as:

. . . broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter; but it is not to be applied in favor of one who has officiously, and as a mere volunteer, paid the debt of another, for which neither he nor his property was under any obligation to pay; and it is not allowed where it works any injustice to the rights of others.

The equitable considerations which dictate the granting of relief in favor of a settling tort defendant who later is found not negligent are well set forth in Rusch v. Korth, 2 Wis.2d 321, 327-328, 86 N.W.2d 464, 468 (1957):

. . . If a wrongdoer who has paid a claim may recover half the payment from another who ought in fairness to pay part of it, surely one who is found not to have been guilty of any wrong should not be denied a like recovery from one who ought in equity and fairness to pay the whole claim. Something is radically wrong with a rule which would require one to establish his own wrongdoing in order to avail himself of an equitable remedy.

On the theory of contribution, Rusch v. Korth, supra, granted recovery to the non-negligent settling co-defendant in the amount of one-half of his settlement with plaintiff. 2 Wis.2d at 330, 86 N.W.2d at 469. Although the rationale of Rusch v. Korth, supra, that a non-negligent settling co-defendant is entitled to contribution, was soon thereafter questioned, ⁸ then overruled, ⁹ the equitable considerations set forth in Rusch...