Bonacon v. Wax

• Decision Date: 19 March 1945
• Docket Number: No. 2517.,2517.
• Citation: 37 Haw. 57
• Parties: SEVERINO BONACON, BY LEONCIO BONACON, HIS NEXT FRIEND v. WILLARD A. WAX.
• Court: Hawaii Supreme Court

37 Haw. 57

SEVERINO BONACON, BY LEONCIO BONACON, HIS NEXT FRIEND

v.WILLARD A. WAX.

No. 2517.

Supreme Court of the Territory of Hawai‘i.

Submitted December 19, 1944.

Decided March 19, 1945.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. H. E. STAFFORD, JUDGE.

Syllabus by the Court

Alleged errors of trial not included in grounds of motion for new trial are not by reason of such omission waived before the supreme court in its consideration of a bill of exceptions to such errors.

Statements of a party to an action which have the tendency to establish or disprove a material fact in the case are competent to be put in evidence against him in the trial of that action.

W. Y. Char and Fukushima & Morita for plaintiff-appellant.

F. Patterson and E. J. Botts for defendant-appellee.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY LE BARON, J.

The appellant brought an action against the appellee for damages allegedly the proximate result of the appellee's negligence while operating an automobile which collided with the bicycle upon which the appellant was riding on a public highway. The jury rendered a verdict for the appellee.

The appellant moved for the setting aside of the verdict and the granting of a new trial on the sole ground of newly discovered evidence. This motion was denied. The appellant brings his bill of exceptions predicated upon alleged errors of trial.

The appellee argues that such errors by not being included as grounds of the motion for new trial were waived.

Section 3742 of the Revised Laws of Hawaii 1935 authorizes the trial court to grant a new trial “for any legal cause” but in this jurisdiction there is no statute providing that a motion for new trial be made as a condition precedent to the taking of a bill of exceptions nor, in the event such motion is made, one requiring the movant to include therein all alleged errors capable of being assigned as grounds or limiting appellate consideration of a bill of exceptions to the grounds of the motion. On the other hand, by virtue of section 3530 of the Revised Laws of Hawaii 1935, a bill of exceptions may be brought directly to this court without the intervention of a motion for new trial, it not being necessary either to supplement exceptions duly taken during trial by one to the verdict or to duplicate them in the grounds of a motion for new trial. (Okuu v. Kaiaikawaha, 7 Haw. 311; Luka v. Poohina, 3 Haw. 728.)Hence, the contention that a waiver arises from an omission in a motion after verdict is untenable in so far as it concerns alleged errors of trial in the appellant's bill of exceptions.

The bill contains thirty-five exceptions, eleven of which are omitted and abandoned in the brief.

The first specification of error alleges that “The Court erred in holding that inasmuch as there was a sufficient disclaimer on the part of the defendant (Exception No. 4,) said defendant was not by his silence bound to any statement made in his presence by his manager, Mr. Dyer (Exception No. 1).” Pertinent to this allegation, the record briefly shows that at the time of the collision the appellant and appellee were both employees of the Star-Bulletin of which a Mr. Dyer was a manager of one of its departments; that at the same time the appellee was driving his automobile in the scope of his employment; that at the scene of the collision and shortly after its occurrence and after the appellant had been removed by an ambulance the appellee and Dyer purportedly made certain statements heard by witnesses Jordan and Mazzoni; that Jordan took the witness stand and testified that Dyer stated in the presence of the appellee that “it was a regrettable incident, a family affair, a Star-Bulletin employee and * * * he would be taken care of”; that Mazzoni testified to a statement made by both Dyer and the appellee, stating that “they said that everything would be taken care of”; that the attorney for the appellee interrupted the direct examination of Mazzoni and objected to a continuation of his testimony; that the trial judge excused the jury and questioned the witness in chambers for the apparent purpose of ascertaining what further testimony he would give if allowed to continue; that during this interrogation, it being in the nature of an offer of proof, the witness quoted the manager as saying “It was a family affair; that he would be taken care of” and the appellee, as nearly as the witness could remember, “That this is regrettable, but it is a Star-Bulletin affair”; that thereupon the jury was recalled and the attorney for the appellee moved that all evidence relating to the conversation be excluded; that the trial judge sustained the objection, granted the motion and made the alleged erroneous holding in the following language: “Gentlemen of the Jury, in the case of the testimony of Mr. Jordan, he testified as to a conversation that was had between him and Mr. Mazzoni and Mr. Wax, and a representative of the Star-Bulletin, which was Mr. Dyer. At that time he was not questioned, so far as the Court's attention has been called to it, as to what, if anything, Mr. Wax said. The Court has the determination of whether or not that is admissible, and the Court will instruct you at this time that you will disregard that evidence entirely and will not use it in any manner in determining your verdict in this case in any way, shape or form. * * * The objection as to that testimony of Mr. Mazzoni's will be sustained for the reason that Mr. Wax' statement did show that it was a Star-Bulletin affair, and therefore that is a sufficient...