Bloudell v. Wailuku Sugar Co.

• Decision Date: 01 September 1983
• Docket Number: No. 8474,8474
• Citation: 669 P.2d 163,4 Haw.App. 498
• Parties: Russell BLOUDELL and Charlotte Bloudell, Plaintiffs-Appellants, v. WAILUKU SUGAR COMPANY, a Hawaii corporation, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 163

669 P.2d 163

4 Haw.App. 498

Russell BLOUDELL and Charlotte Bloudell, Plaintiffs-Appellants, v. WAILUKU SUGAR COMPANY, a Hawaii corporation, Defendant-Appellee.

No. 8474.

Intermediate Court of Appeals of Hawai'i.

Sept. 1, 1983.

Syllabus by the Court

1. Where appellant argues on appeal that defendant was "negligent as a matter of law" but fails to properly raise the issue pursuant to the requirements of Rule 3(b), Rules of the Supreme Court, the appellate court may disregard that question.

2. Where appellant seeks review of a jury verdict which found defendant not negligent, the appellate court will sustain the verdict if it is supported by substantial evidence.

3. Under Rule 615, Hawaii Rules of Evidence, the trial court has the discretion to exempt a witness from exclusion from the courtroom if he is an essential witness who has such specialized expertise or intimate knowledge of the facts that the party's counsel could not effectively function without the presence or aid of the witness.

4. Where the trial court has exempted a witness from exclusion, the reviewing court will not overturn its exercise of discretion absent abuse.

Herbert K. Shimabukuro, Honolulu (Stanley M. Morishige, Honolulu, with him on the briefs; Nishimura, Lee & Shimabukuro, Honolulu, of counsel), for plaintiffs-appellants.

George W. Playdon, Jr., Honolulu (Ashley K. Fenton, Honolulu, with him on the brief; Davis & Playdon, Honolulu, of counsel), for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Plaintiffs Russell Bloudell and Charlotte Bloudell (Bloudells) appeal from a judgment entered in favor of defendant Wailuku Sugar Company (WSC). The appeal raises two questions: (1) Was the jury's verdict supported by substantial evidence, and (2) Did the court err in declining to exclude witness Richard T. Hill (Hill) from the courtroom prior to his testifying? We answer yes and no and affirm.

On the morning of March 3, 1977, Bloudells were proceeding by automobile in an easterly direction on Kuihelani Highway towards Kahului airport on the island of Maui to catch a plane. On that same morning, WSC was burning sugar cane as part of its harvesting operations on Field No. 98 which abutted the north side of the highway. WSC had placed signs and flagmen on the highway at both ends of the harvesting operation to warn drivers of the burning and the resultant smoke, which was being blown onto the highway and hampering visibility.

On the morning in question, Patrick Fernandez (Fernandez) was driving a trailer truck and also traveling towards Kahului on the Kuihelani Highway. As Fernandez approached the burning cane, he observed the warning signs and a flagman but proceeded on through the smoke. Bloudells came upon the burning area soon after Fernandez passed the warning signs. They slowed down but also proceeded into the smoke.

After entering the smoke, Bloudells experienced difficulty in seeing and subsequently collided with the rear of Fernandez' truck. Mr. Bloudell, his daughter Kathleen Bloudell, and passengers Gordon and Sherrill Sheaves sustained injuries.

On March 1, 1979, Bloudells filed suit ¹ against WSC, Fernandez, and General Construction Company (General), Fernandez' employer. Mr. Bloudell sued for damages resulting from his injuries and Mrs. Bloudell sued for loss of consortium. WSC answered and cross-claimed against Fernandez and General. Fernandez and General answered and cross-claimed against WSC. On August 28, 1980, a stipulation was entered consolidating this action with an action filed by Bloudells' passengers against Bloudell, WSC, and General. ²

Jury trial commenced on April 13, 1981, and on April 20, 1981, the jury returned a special verdict which found WSC not negligent.

Judgment was entered on May 18, 1981. However, the clerk failed to send a notice of the entry of judgment to the parties. ³ On June 19, 1981, Bloudells filed a motion for new trial under Rule 59, Hawaii Rules of Civil Procedure (HRCP) (1972, as amended), or in the alternative, for an extension of time to file a notice of appeal under Rule 73(a) (1980). ⁴

After hearing, the court, citing Rule 60(b)(6), HRCP, vacated the judgment on the grounds of the clerk's failure to give notice of the entry of judgment and the fact that the judgment was inadvertently signed by a judge other than the trial judge. A new judgment was entered on July 21, 1981, and Bloudells filed their notice of appeal on August 5, 1981. ⁵

I.

Before discussing the merits of Bloudells' appeal, we must deal with the question of precisely what they are appealing.

The record indicates that at trial Bloudells proceeded on a simple negligence theory and at the conclusion of the evidence attempted to have the court direct a verdict on the matter of liability, taking that issue from the jury. ⁶ In their opening brief, however, Bloudells argue that WSC was "negligent as a matter of law": first, because it knew its cane burning would create an unreasonable risk of harm to motorists on the highway, second, given its knowledge, WSC failed to stop all traffic on the highway, and, consequently, the jury's verdict must be overturned.

We are not certain just what Bloudells mean when they argue that WSC was "negligent as a matter of law." They could be arguing either that WSC was "negligent per se " ⁷ or that the evidence was so clear that the question of WSC's negligence was actually a question of law for the trial court's determination. ⁸

However, the question of WSC's liability "as a matter of law" under either concept is not an issue in this appeal because it is not raised in accordance with Rule 3(b), Rules of the Supreme Court of the State of Hawaii (RSC) (1980, as amended). ⁹

To properly raise those issues here, Bloudells were required in their opening brief to cite either the order granting WSC's motion or the order denying their motion for directed verdict as a question on appeal under Rule 3(b)(3), RSC, and as a point of error under Rule 3(b)(5), RSC. ¹⁰ Error by the trial court will not ordinarily be considered unless properly raised under Rule 3(b). Kang v. Harrington, 59 Haw. 652, 587 P.2d 285 (1978); Kimball v. Sadaoka, 56 Haw. 675, 548 P.2d 268 (1976); Mahoney v. Mitchell, 4 Haw.App. 410, 668 P.2d 35 (1983); John Wilson Enterprises, Ltd. v. Carrier Terminal Service, 2 Haw.App. 128, 627 P.2d 294 (1981). We see no reason to depart from the rule.

Consequently, we construe Bloudells' argument simply as an assertion that the jury's verdict must be overturned and confine ourselves solely to the issue of whether the jury's verdict is supported by substantial evidence.

When the question of negligence has been presented to the jury for its determination, an appellate court will not disturb an otherwise proper jury verdict if it is supported by substantial evidence. Adair v. Hustace, 64 Haw. 314, 640 P.2d 294 (1982); Ashford v. Thomas Cook & Son (Bankers), Ltd., 52 Haw. 113, 471 P.2d 530 (1970); Striker v. Nakamura, 50 Haw. 590, 446 P.2d 35 (1968). Substantial evidence is defined as credible evidence which is of sufficient quantity and probative value to justify a reasonable person in reaching a conclusion. In re Charley's Tour & Transportation, Inc., 55 Haw. 463, 522 P.2d 1272 (1974).

Our review of the record indicates that there was substantial evidence to support the jury's verdict.

II.

We find no error by the court in refusing to exclude the witness Hill from the courtroom.

Rule 615, Hawaii Rules of Evidence (HRE) (effective January 1, 1981), dealing with the exclusion of witnesses, states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

The rule, which is identical to Rule 615, Federal Rules of Evidence (FRE), is a codification of the long established practice of sequestering witnesses to discourage or expose fabrication, inaccuracy and collusion. See commentary to Rule 615, HRE; Government of Virgin Islands v. Edinborough, 625 F.2d 472 (3rd Cir.1980). Additionally, the rule seeks to prevent the possibility of one witness shaping his testimony to match that given by other witnesses at trial. J. Weinstein & M. Berger, 3 Weinstein's Evidence (hereinafter Weinstein's Evidence ) p 615, p. 615-4 (1982).

The mandatory language of Rule 615, HRE, as well as the federal rule, has been interpreted as requiring the exclusion of all witnesses who do not fit within its exceptions. See commentary to Rule 615, HRE; Government of Virgin Islands v. Edinborough, supra; United States v. Warren, 578 F.2d 1058 (5th Cir.1978), reh'g denied, in part, reserved, in part, 586 F.2d 608, reh'g granted, 589 F.2d 254. However, although the exclusion is generally a matter of right, the trial judge retains a measure of discretion in the application of the rule's exceptions. Government of Virgin Islands v. Edinborough, supra; Cooper v. United States, 594 F.2d 12 (4th Cir.1979); 3 Weinstein's Evidence p 615 at 615-10-11. An appellate court will not overturn the court's action unless an abuse of that discretion is shown. State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981); State v. Iaukea, 56 Haw. 343, 537 P.2d 724 (1975); Johnson v. Robert's Hawaii Tour, Inc., 4 Haw.App. 175, 664 P.2d 262 (1983); State v. Chong, 3 Haw.App. 246, 648 P.2d 1112 (1982). Appellant has the burden of showing that the trial court's decision clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant, Friedrich v. Department of Transportation, 60 Haw. 32, 586 P.2d 1037 (1978); ...