Bulatao v. Kauai Motors, Limited
| Decision Date | 22 October 1965 |
| Docket Number | No. 4392,4392 |
| Citation | 49 Haw. 1,406 P.2d 887 |
| Parties | Guadalupe BULATAO v. KAUAI MOTORS, LTD. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. A fact cannot be established by circumstances which are perfectly consistent with direct, uncontradicted, and unimpeached testimony that the fact does not exist.
2. A ground not suggested when a motion for directed verdict is made ordinarily cannot be relied upon on appeal.
3. Though a motion for directed verdict must 'state the specific grounds therefor' (H.R.C. P., Rule 50(a)), technical precision is not required, and it is enough if the ground relied upon on appeal was sufficiently stated to apprise the trial court fairly as to movant's position with respect thereto.
4. The grounds of a motion for directed verdict may be stated in oral colloquy during the trial.
5. Though the evidence was insufficient to go to the jury, the appellate court will not order judgment entered for defendant where the manner in which the case was tried was prejudicial to plaintiff, but instead will order a new trial.
6. The question whether a witness is qualified as an expert is largely within the discretion of the trial judge.
7. In an action in tort for negligence in the making of repairs of an automobile, where the question is one of prudence in driving a car in the condition of the car in question and there is no distinguishing feature whereby the defense of assumption of risk has a different application than the defense of contributory negligence, the trial court rightly declines to instruct the jury on assumption of risk in addition to instructing the jury on the subject of contributory negligence.
Burnham H. Greeley, Honolulu (Frank D. Padgett, Alexander C. Marrack, Honolulu, with him on the brief; Robertson, Castle & Anthony, Honolulu, of counsel), for appellant.
Bruce M. Clark, Honolulu (Edward Stanwood, Lihue, with him on the brief; Clark & Corey, Honolulu, of counsel), for appellee.
Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
Plaintiff was injured in getting out of a car when it stalled and caught fire. This was eight days after the car was returned by defendant's garage following repairs. Plaintiff sued in tort for negligence in the making of the repairs. The jury found defendant responsible and awarded $24,554.30 for general and special damages. From the ensuing judgment for plaintiff, defendant appealed.
A principal contention is that there was not more than a scintilla of evidence of negligence on the part of defendant. Defendant having moved in the court below for a directed verdict, and having subsequently moved for judgment notwithstanding the verdict, the denial of these motions brings the sufficiency of the evidence before the court, pursuant to Specifications of Error Nos. 1 and 2.
The car belonged to plaintiff's son, who lived with her at Kekaha, Kauai. According to the testimony of the son the car was running fine prior to being taken to the garage on August 2, 1961, except for the transmission. After it was taken in for transmission repairs, the garage found the engine was not working right and further repairs were authorized. The timing was checked and adjusted, the carburetor was tuned, and the spark plugs were cleaned. The car was returned on August 9. Subsequently plaintiff's son noticed that the car was 'missing.' On a trip to Kokee on Saturday, August 12, the car was missing, jerking and backfiring, and after similar trouble on Sunday the car was not driven until plaintiff started out on Thursday, August 17, 1961, the day of the accident.
According to plaintiff's testimony she was driving the car from her home to defendant's garage for further repairs as requested by her son, when the accident occurred. Plaintiff's ultimate destination, she testified, was Lihue, where she had a place of business, a dress shop, and she had with her three passengers going to Lihue. Defendant contends plaintiff really was going to Lihue and not to the garage, as she had passed the turn-off to Koloa where defendant's garage is located. Plaintiff, on the other hand, testified she planned to reach the garage via the Omao Road, having selected that route in order to pick up some bananas at the home of a friend.
The fire occurred as plaintiff was driving up the Lawai hill. The car stalled and plaintiff tried many times to start it. When informed by other motorists that the car was on fire plaintiff panicked. She tried to jump out after pulling on the brake out the car slid back and plaintiff was unable to free herself because a ribbon on her garment caught on the car. She thus was forced to back up with the car and at that point was hit by 'something that was hitting back and forth.' Finally she was able to secure the car by jumping back in. In getting out a second time, this time with her portable sewing machine, she fell down.
To link defendant with the fire which caused plaintiff to get out of the car in this manner, plaintiff relies on the testimony of Edwin Shuman, who over objection was qualified as an expert witness. The points made by Mr. Shuman require careful analysis. They are three in number:
(1) Mr. Shuman testified that at the time of his examination of the car on defendant's premises a year or more after the accident 1 there was no air filter in place; an air filter found at that time in the well behind the rear seat 2 had not been burned; in this type of fire an air filter that was on the car at the time surely would have been burned. On this, it is premised that the air filter belonging on the car was not in place when it was returned by defendant to plaintiff's home on August 9, that it was lying loose in the car where it was found a year later.
(2) The fire was caused by defective timing, producing backfiring through the carburetor, according to this witness.
(3) Mr. Shuman further testified that this type of fire could not occur if the air filter were in place, from which it again is argued there was no air filter on the car at the time.
It will be noted that this evidence is entirely circumstantial. More important, it is inconclusive circumstantial evidence. As to the cause of the fire ((2) above), Mr. Shuman's testimony did not rule out the possibility that gas had overflowed the carburetor because of a foreign particle caught in the valve controlling the flow, preventing the valve from shutting off the gas completely. This will cause a car to jerk and the motor to die instead of idling, as well as causing backfiring. There was uncontradicted testimony that on this car there was no gasoline strainer to filter the gasoline entering the fuel line, as there should have been. In case of overflowing gasoline, a spark could ignite the gas fumes. This type of fire could have been caused even if the air filter was in place. Mr. Shuman's testimony ((3) above) that if an air filter was in place it would have snuffed out the fire, concerned a fire caused as Mr. Shuman envisioned it. Moreover, though Mr. Shuman testified that examination of the wires excluded the possibility of a short, this did not exclude the possibility of a spark starting a fire, according to the witness' own testimony. 3
As to the air filter found in the well of the car a year after the accident--defendant offered no explanation of this, nor as to the absence of the air filter from its accustomed place under the hood at the time of the examination by Mr. Shuman. One of defendant's employees, Mr. Ishida, testified that the air filter was in place and was not removed when the car was in the shop for repairs the first part of August, and another Mr. Tateishi, testified that it was in place when the car was brought in after the accident. And as will appear, two disinterested, unimpeached witnesses testified to seeing the air filter in place after the accident. Again, the circumstantial evidence was inconclusive. The air filter found lying loose in the car may not have been the one that belonged on the car. It may have been a second one. The one belonging on the car may have been in place but removed after the accident. If so, testimony that the one found lying loose in the car had not been burned was beside the point. Lending credence to the view that there were two air filters is the testimony of plaintiff herself, set out in the footnote, 4 which, curiously, was not explored. This suggests that a second air filter may have been lying loose in the back of the car right along. Or as suggested by plaintiff's brief in this court, the one found lying loose in the car may have been put there after the accident for use as a replacement.
It is evident that plaintiff's case depended upon the air filter having been left off the car by defendant at the time of the original repairs. Negligence in adjusting the timing could not have caused the fire without this second factor. The inconclusiveness of the circumstances offered to show this second factor has been reviewed. As seen, there was direct eyewitness testimony that the air filter was in place. If this were solely testimony of employees of defendant we might not reach the result reached here, but we have the testimony of an officer of the fire department, Lieutenant Rita, who with two other firemen under him responded to the call reporting the fire. He was the one who opened the hood and extinguished the fire. He then examined the area of the fire. He testified:
'Q. Do you know what an air filter looks like?
'A. Sure I know.
'Q. When you examined the burned area after the fire had been put out, was there an air filter on this car?
'A. I saw one, yes.
'Q. You saw it?
'A. Yes.
'Q. With your own eyes?
'A. Yes.
'Q. Was that air filter in the proper place?
* * *
* * *
'Q. In making that check, did you take any special note as to whether or not the air filter was on?
'A. I did.
'Q. Could you give us the reason for that?
'A. I tried to determine the...
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