Barretto v. Akau

• Decision Date: 25 November 1969
• Docket Number: No. 4792,4792
• Citation: 51 Haw. 383,463 P.2d 917
• Parties: , 51 Haw. 461 Marlene K. BARRETTO et al., v. Stanley AKAU.
• Court: Hawaii Supreme Court

Page 917

463 P.2d 917

51 Haw. 383, 51 Haw. 461

Marlene K. BARRETTO et al., v. Stanley AKAU.

No. 4792.

Supreme Court of Hawai'i.

Nov. 25, 1969.

Rehearing Denied Dec. 9, 1969.

As Amended Dec. 11, 1969.

Syllabus by the Court

1. When the question on cross-examination of an expert witness is aimed at demonstrating an alternative theory or at contesting a substantive element of the case, the question may be based on (1) those facts already in evidence, (2) those facts which are the proper subject of judicial notice, and (3) those facts which the cross-examiner in good faith anticipates he will establish later in the trial.

2. If the cross-examiner fails to prove the facts assumed in his hypothetical question, then a motion to strike by opposing counsel is appropriate to cure the defect.

3. The police report offered by defendant was not vulnerable to the hearsay objection as it was not offered to prove the truth of its contents but to show that it did not contain the information which the plaintiff said it contained.

4. Actual knowledge of the risk involved may be established by circumstantial evidence.

5. The dearth of standards by which to measure individual pain and suffering, the common sense of jurors, and the presence of alternative judicial safeguards that are less intrusive into the juror's province lead this court to approve the use of formula arguments by counsel in personal injury cases.

6. The trial judge should make it clear to the jury that the use of formula arguments by counsel are but illustrations which serve to focus the inquiry on the issue which the jury must ultimately resolve, the extent of money damages for the plaintiff's pain and suffering.

7. The mere numerical redundancy of instructions is not the operative test for prejudice and each case must be considered separately and in light of its own facts, keeping in mind the point that a fair and complete single instruction on each issue is the most desirable.

8. The trial court did not abuse its discretion in giving separate instructions with respect to the different injuries to the plaintiff as she was entitled to separate consideration as to each of these injuries, any one of which might have supported an action for damages.

9. The instructions dealing with the general law of damages, which told the jury six times that they were to compensate plaintiffs for all damages which were the direct and proximate result of the accident, came precariously close to upsetting the climate of reason which must prevail in a jury trial and gave the outward impression that perhaps the trial judge had formed an opinion in this case as to the preferred result.

Frank D. Padgett and James Krueger, Honolulu (Padgett, Greeley, Marumoto & Akinaka, Honolulu, of counsel), for plaintiffs-appellees.

Richard E. Stifel, Honolulu (Jenks, Kidwell, Goodsill & Anderson, Honolulu, of Counsel), for defendant-appellant.

Before RICHARDSON, C. J., ABE, LEVINSON and KOBAYASHI, JJ., and Circuit Judge OGATA in place of MARUMOTO, J., disqualified.

LEVINSON, Justice.

This case comes to us on appeal from a judgment of $38,762.50 for plaintiff Marlene Barretto, a 16-year-old girl at the time of the accident, and $1,000 in favor of her parents, plaintiffs Manuel and Winifred Barretto. The suit was the result of an auto accident on October 3, 1965 in which the defendant, Stanley Akau, caused a head-on collision with another car while driving the car of Gerald Ito in which both Ito and plaintiff Marlene were also riding. The defendant admits negligence. The only issues at trial were the extent of damages to be awarded to Marlene, the expenses incurred by her parents, and the affirmative defenses of assumption of risk and contributory negligence.

On the day of the accident, Gerald Ito and the defendant had been drinking in various bars in Kapaa on the island of Kauai from about noon until just before the accident at 4:30 p. m. They proceeded from the last bar to Marlene's home with Ito driving. Ito backed up a long driveway to the Barretto house, parked at the garage, and went in through the adjacent kitchen door to ask Mrs. Barretto's permission to take Marlene out for some ice cream. Permission was granted and the defendant slid over in the seat and drove until the time of the accident.

Marlene was married to Gerald Ito on April 22, 1966, over six months after the accident. She gave birth to a child on September 10, 1966, less than six months from the time of her marriage. No evidence was adduced as to whether the pregnancy was other than a normal one of approximately 280 days or nine calendar months.

The damages claimed at trial were numerous. Testimony was introduced that Marlene suffered amnesia, a cut chin, a bruised breast, a cut on the left thigh, a sore jaw, chipped teeth, and a mild cerebral concussion. At trial it developed that a major emphasis was being placed on emotional damages allegedly resulting from the crash and the injuries. The plaintiffs introduced testimony that before the accident Marlene was a lively girl who hiked, swam, caught frogs, fished, bowled, played the piano, and sang in the church choir, and that after the accident she became dependent, uninterested in her previous activities, reserved in her contacts with others, irritable, forgetful and unable to care properly for the accident she became dependent, uninterested was introduced to prove these damages and to establish the accident as their cause.

While defendant alleges 27 different specifications of error in his brief, we find it necessary to address ourselves to only four in particular. First, the defendant alleges as error the refusal of the trial judge to allow two of Marlene's medical experts, Doctors Goebert and Popper, to answer a line of hypothetical questioning posed by the defendant on cross-examination relating to the effect which a premarital pregnancy might have had on Marlene. This was to determine, by way of rebuttal, whether a pre-marital pregnancy could have precipitated a severe emotional crisis and brought about a personality change. An objection to the questioning was sustained because the fact of pre-marital pregnancy, assumed in the hypothetical question by defendant, was not yet in evidence.

Second, at the close of the trial the judge granted a motion for a directed verdict for the plaintiffs on the issues of assumption of risk and contributory negligence. On appeal the defendant has argued only the issue of assumption of risk. The factual issue was whether Marlene actually knew that the defendant had been drinking. She had no opportunity, except at a distance, to observe him before she got into the car, nor had she ever met him. Whatever she observed upon getting into the car and riding with the defendant was lost to the jury by a claim of amnesia covering those events. Mrs. Barretto did have an opportunity to observe first-hand Mr. Ito, who is not a party to this suit, when he came to pick up Marlene.

The defendant attempted to elicit testimony from Mrs. Barretto and from Marlene that Mrs. Barretto told Marlene in the hospital room after the accident that the boys were obviously drunk. Mrs. Barretto maintained that her information came from the police report. The defendant offered the report to show that no mention was made of the intoxication of the boys in it except for a statement that they had been drinking. This left an inference of firsthand knowledge as a basis for Mrs. Barretto's statement that the boys were obviously drunk. This is turn could mean that Marlene had that same opportunity to observe the boys' condition. The defendant's case rested, as it had to, on circumstantial evidence and inference. The trial court chose to strike the admission of the police report as hearsay.

Third, over the defendant's objection Marlene's attorney was permitted to make a formula argument to the jury in order to illustrate how damages might be computed.

Now we come to the disfigurement. The ordinary person is awake around 16 hours a day. Marlene Barretto walks around with that scar on her face, that lump in her mouth, and that scar, those two scars on her face, one of which is swollen, all day long; and naturally she is conscious of it. If for the 2 1/2 years that have gone by since this accident, you awarded her the mere sum of 50 cents an hour for that embarrassment * * * (Objection overruled.)

The defendant contends that the statutory authority upon which Marlene's attorney relies, HRS § 635-52, ¹ is an unconstitutional legislative incursion into the judicial function and thereby violates the principle of separation of powers embodied in the State Constitution. See Hawaii Constitution, art. III, § 1; art. IV, § 1; art. V, § 1.

Fourth, the defendant also specifies as error the inclusion in the instructions to the jury of eleven separate instructions on damages. He contends that by being repetitious the instructions unduly over-emphasized the subject of damages.

We reverse and remand for a new trial.

I. CROSS-EXAMINATION OF PLAINTIFF'S MEDICAL EXPERTS.

We agree with the defendant's contention that in the cross-examination of an expert witness there is no requirement that hypothetical questions be based upon facts already in evidence. While the authorities are divided on this issue, we think that in cross-examining an expert witness a question aimed at demonstrating an alternative theory or contesting a substantive element of the case may be based on (1) those facts already in evidence, (2) those facts which are the proper subject of judicial notice, and (3) those facts which the cross-examiner in good faith anticipates he will establish later in the trial. If the cross-examiner fails to prove the facts assumed in his hypothetical question, then a motion to strike by opposing counsel is appropriate to cure the defect. Peterson v. Schlottman, 237 Or. 484, 392 P.2d 262 (1964); see also H.R.C.P. Rule 7(b)(1) and Trask v. Kam,44 Haw. 10, 18, 352 P.2d...