Cozine v. Hawaiian Catamaran, Limited

• Decision Date: 21 February 1966
• Docket Number: No. 4463,4463
• Citation: 49 Haw. 77,412 P.2d 669
• Parties: Nana L.COZINE v. HAWAIIAN CATAMARAN, LTD.
• Court: Hawaii Supreme Court

Page 669

412 P.2d 669

49 Haw. 77

Nana L.COZINE v. HAWAIIAN CATAMARAN, LTD.

No. 4463.

Supreme Court of Hawai'i.

Feb. 21, 1966.

Rehearing Denied May 25, 1966. See 414 P.2d 428.

Syllabus by the Court

1. The doctrine of res ipsa loquitur applies whenever a thing that produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised.

2. An excursion boat operated for hire is a common carrier of passengers.

3. In an action by a passenger for hire against a common carrier, when it is made to appear that the accident was caused by an equipment failure and the equipment was under the carrier's control, the burden of going forward with the evidence shifts from the passenger to the carrier, and if the cause of the equipment failure remains undetermined the case will be permitted to go to the jury on the basis of the evidence that the accident was caused by the failure of equipment under the carrier's control and the carrier must take the risk of a verdict against it.

4. The rule of res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference.

5. It is not every statement of the law found in a textbook or opinion of a judge, however well and accurately put, which can properly be embodied in an instruction to the jury.

6. In a res ipsa case in which the court deems the inference of negligence permissible but not required it will be for the jury to determine whether to make it.

7. In determining whether reversible error occurred in instructions to the jury the charge will be considered as a whole.

8. A general objection that a requested instruction is 'improperly phrased' is not enough to show reversible error when no specific objection is made, the error consists in the use of one improper phrase, and there is no request for a clarifying instruction.

9. The trial court has discretion as to the qualifications of an expert witness.

10. Expert opinions should not be extended beyond the point of necessity, and encroachment upon the province of the jury should be avoided if possible. The test of the admissibility of expert evidence is whether the jurors are incompetent to draw their own conclusions from the facts without the aid of such evidence.

11. Counsel practicing under Rule 17 of the Rules of the Circuit Court, First Circuit, which provides that when a pretrial is held, each party 'shall disclose * * * the names and addresses of all witnesses that he intends to call,' should be able to rely on it in preparing for trial.

12. A witness may be cross-examined as to specific acts affecting his credibility.

13. The scope of cross-examination as to specific acts affecting a witness' credibility rests in the discretion of the court, and is reviewable only for abuse of discretion.

14. Where the witness is the plaintiff, it is error not to permit cross-examination as to the truth of statements made by him in an affidavit filed in the case.

15. Reversal will not be ordered on account of an error in restricting cross-examination unless it was prejudicial.

16. A party's falsehood or other fraud in the preparation or presentation of his case may be proved against him whether he is a witness or not.

17. A nontreating medical expert cannot base his opinion on the plaintiff's out-of-court statements as to his past condition, not shown to be the same as the evidence of record.

18. A medical expert opinion cannot be based on the reports of other doctors, which are not of record and contain matters of opinion.

19. A motion to strike evidence must state the grounds.

20. A motion to strike the entire testimony of a witness is properly denied if any portion of the testimony is admissible.

21. Objections to the competency of testimony are waived if not made at the taking of the deposition where the ground is one which might have been obviated had the objection been made at that time. H.R.C.P., Rule 32(c)(1) and (2).

22. A nonexpert witness who has had suitable opportunity for observation may state inferences from transient physical appearances, as that a person was in pain or suffering, when the circumstances are such that all the facts cannot be placed before the jury with such clearness as to enable them to draw a correct inference, and the inference is not one for the drawing of which special skill, knowledge and experience are required; but this rule is to be applied with due regard for the requirement that encroachment upon the province of the jury should be avoided if possible.

23. A case involving a medical issue is no exception to the rule that, when there are conflicting inferences and conclusions, it is the function of the trier of facts to select the one which it considers most reasonable.

C. Jepson Garland, Anderson, Wrenn & Jenks, Tobias C. Tolzmann, Honolulu, for appellant.

Albert Gould, Cobb & Gould, Honolulu, for respondent.

Before CASSIDY, Acting C. J., WIRTZ, LEWIS and MIZUHA, JJ., and DOI, Circuit Judge, assigned by reason of vacancy.

LEWIS, Justice.

Plaintiff was injured on September 24, 1959, when she was struck on the head by the falling mast of a catamaran, owned and operated by defendant for the carriage of passengers for hire. At the time, plaintiff was cruising offshore, after boarding at Waikiki beach as one of a party of six for whom plaintiff's husband had booked the catamaran ride. There was a two-man crew, of which one was the skipper.

Alleging negligence and incompetence of defendant in the operation and maintenance of the catamaran, plaintiff sued for damages for her injuries and was awarded general damages for $12,750 by the verdict of a jury. Special damages were disallowed by the court on the ground that the expenses involved were those of the husband, who had withdrawn his claim.

Res Ipsa Loquitur

Upon this appeal from the judgment, defendant specifies as Error No. 18 the giving of a res ipsa loquitur instruction, contending the doctrine was inapplicable and in any event the instruction was improperly phrased. We first consider the applicability of the doctrine.

When the case went to the jury, the record showed that the catamaran was built in 1954, that it had a single mast 20-25 feet high and 8-10 inches in diameter at its base, and that the mast snapped slightly above its base as the catamaran was executing a turn in weather which the jury could have found was not unusual, with a wind velocity of four knots per hour and moderate seas. When plaintiff's witness, a former employee of defendant, though not a member of the crew, went aboard half an hour after the catamaran was towed in, he observed external cracks on a swage fitting in the rigging, and the wire was separated from the fitting; the particular fitting which was in this condition was not identified. As shown by another witness, defendant's expert hereinafter mentioned, a swage fitting is a terminal connection for a piece of wire rope, having a tube. A wire is inserted in the tube, and the tube squeezed under pressure around the wire.

According to plaintiff's witness, the former employee above-mentioned, defendant's practice was to drydock its vessels every six months, 'mostly for hull work-damage to the bottom,' and to visually inspect the standing rigging; how often inspection was made was not specified. '* * * (F)ittings are the main thing,' according to his testimony. He further testified that there was 'some but very little' preventative maintenance, by which he said he meant 'changing standing riggings after so many years'; how often riggings should be changed was not specified. Over objection, this witness was permitted to testify that the general condition of this catamaran was 'very poor,' and that 'everything was run down and everything was worn out.' Specification of Error No. 8 asserts that such evidence was irrelevant to the particular situation at issue, but we do not so regard it.

Defendant's expert, a marine engineer and naval architect, testified that swage fittings fail for a number of reasons; that a defective condition can be ascertained by normal inspection before failure of the fitting; that this is not invariably the case, and a crack might be invisible prior to failure of the fitting though visible afterward, but 'that would not normally be the case.' Wires may break, a principal reason being fatigue failure which is very difficult to detect beforehand. He testified that the most common cause of mast failures is failure of the rigging, but the mast may break without failure of the rigging, due to defects in the mast itself, in the wood, which might or might not be detectable in a finished mast. This witness further testified that a catamaran has about eighteen fittings in the standing rigging, and that one could not say whether failure of a fitting would cause the mast to break without identifying the fitting that failed.

As to maintenance practices, defendant's expert testified that in normal use a pleasure boat is drydocked every eight months, though six months is 'quite common if you're trying to get best speed,' that as to checking on the standing rigging 'a normally prudent fellow' would make a visual inspection every two or three months, and that for prudent practice the riggings should be renewed every ten years-'It isn't done, but it should be.'

The doctrine of res ipsa loquitur applies 'whenever a thing that produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised * * *.' Ciacci v. Woolley, 33 Haw. 247, 257, quoting from Morgan v. Yamada, 26 Haw. 17, 24.

Defendant would state the rule in the terms of Lyu v. Shinn, 40 Haw. 198, 202, and would have the court hold the doctrine inapplicable, in the absence of expert testimony, ...