Fujioka v. Kam

• Decision Date: 24 September 1973
• Docket Number: No. 5328,5328
• Citation: 55 Haw. 7,514 P.2d 568
• Parties: Leonora FUJIOKA, a minor, by Kazumi Fujioka, her quardian ad litem, et al., Plaintiffs, v. Harold C. H. KAM and Edith T. M. Kam, Coexecutors of the Estate of York FonKam doing business as Kalihi Queen's Super Market, et al., Defendants andThird-Party Plaintiffs-Appellants, v. HON HOONG CHEE and Sadaichi Kitajima, Third-Party Defendants-Appellees, and John Doe Wong et al., Third-Party Defendants.
• Court: Hawaii Supreme Court

Page 568

514 P.2d 568

55 Haw. 7

Leonora FUJIOKA, a minor, by Kazumi Fujioka, her quardian ad

litem, et al., Plaintiffs, v. Harold C. H. KAM and Edith T. M. Kam, Coexecutors of the

Estate of York FonKam doing business as Kalihi

Queen's Super Market, et al., Defendants andThird-Party Plaintiffs-Appellants, v. HON HOONG CHEE and Sadaichi Kitajima, Third-Party Defendants-Appellees, and John Doe Wong et al., Third-Party Defendants.

No. 5328.

Supreme Court of Hawai'i.

Sept. 24, 1973.

Syllabus by the Court

1. Although an appellate court generally should reverse the judgment of a trial court only on a legal theory first presented in the trial court, appellate courts may deviate from the general rule when justice requires.

2. In deciding whether to consider new legal arguments presented for the first 3. The state legislature may change or entirely abrogate common law rules only if, in doing so, it does not violate a constitutional provision.

time only on appeal factors to be considered include whether the consideration of the issue would require additional facts, whether the resolution of the issue would impair the integrity of the findings of fact of the trial court, and whether the question is of great public import.

4. The state legislature has the right and power to classify the subjects of legislation, provided that such classification of persons and things is reasonable for the purpose of the legislation, and is therefore not arbitrary and capricious.

Christopher P. McKenzie, Honolulu (Gould & McKezie, Honolulu, of counsel), for defendants and third-party plaintiffs-appellants.

John Gillmor and Gerald Y. Sekiya, Honolulu (Bortz, Case, Stack, Kay, Cronin & Clause, Honolulu, of counsel), for third-party defendant-appellee, Hon Hoong Chee.

John A. Roney, Honolulu (Jenks, Kidwell, Goodsill & Anderson, Honolulu, of counsel), for third-party defendant-appellee, Sadaichi Kitajima.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

ABE, Justice.

On February 13, 1970, Leonora Fujioka, a monor, suffered injuries when a portion of the roof of Kalihi Queen's Super Market fell upon her. Action for damages was instituted on her behalf against the owners of the building. The defendants-owners filed a third-party complaint against Hon Hoong Chee, engineer, and Sadaichi Kitajima, general contractor, as third-party defendants. The engineer had performed services in the planning and designing of the building and the general contractor had constructed the improvement. The owners alleged negligence and/or breach of warrantly on the part of the negineer and general contractor.

Both the engineer and general contractor moved for summary judgment on the ground that their services were rendered on the building which had been completed before 1956, more than ten years before the collapse of the portion of the roof, and that under the provision of HRS § 657-8 ¹ they were not liable for contribution or indemnity. The motion was granted and judgment was entered accordingly.

It is to be noted that Section 657-8 was first enacted by our legislature as Act 194, SLH 1967 by adding a new section, Sec. 241-7.1, to Chapter 241, RLH 1955. The first portion of the statute established a statute of limitation of two years after the accruing of the cause of action against registered and licensed persons for services rendered in the designing and construction of improvements on land. The next portion, which is in issue here, provides that no action to recover damages for injuries arising from condition of any improvement on land shall be brought against such registered and licensed persons in any event years after the performance or furnishing of such services.

The owners, on appeal before this court, for the first time attacked the constitutionality Here, the trial court rendered its judgment on a motion for summary judgment. Thus, there is no material fact in issue and the resolution of the constitutional issue does not require additional facts. Further, we believe that the constitutionality of the statute is of great public import, and therefore we will consider the issue, though it was raised for the first time before this court.

of the statute. Thus, it is contended by the engineer and the contractor that this court should not consider the issue because they were denied the opportunity to present evidence in the trial court and for the further reason that the trial judge was denied the opportunity to rule on the issue. It is the general rule that an appellate court should only reverse a judgment of a trial court on the legal theory presented by the appellant in the trial court. Kawamoto v. Yasutake, 49 Haw. 42, 410 P.2d 976 (1966); Bank of Hawaii v. Char, 43 Haw. 223 (1959), aff'd, 9 Cir., 287 F.2d 51 (1961), cert. den. 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961); Hormel v. Helvering, 312 U.S. 552, 556, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). However, we have also said that the rule is not inflexible and that an appellate court may deviate and hear new legal arguments when justice requires. We also stated that in the exercise of this descretion an appellate court should determine whether the consideration of the issue requires additional facts, whether the resolution of the question will affect the integrity of the findings of fact of the trial court; and whether the question is of great public import. Greene v. Texeira, 54 Haw. 231, 234-235, 505 P.2d 1169, 1172 (1973); In re Taxes, Hawaiian Land Co., 53 Haw. 45, 53, 487 P.2d 1070, 1076 (1971), appeal dismissed, 405 U.S. 907, 92 S.Ct. 938, 30 L.Ed.2d 778 (1972). See also, Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948); Duarte v. Bank of Hawaii, 287 F.,2d 51 (1961), cert. den. 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961), affirming the territorial Supreme Court's decision in Bank of Hawaii v. Char, 43 Haw. 223 (1959).

Under the common law, one who suffers injuries has a claim for relief, or a cause of action in tort, against another who owed the injured party a duty but failed to do what a reasonably prudent person would have done, or did what a reasonably prudent person would not have done under the circumstances, providing that such omission or commission is the proximate cause of the injuries suffered. Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940).

We agree with courts of other jurisdictions that our state legislature may, by legislative act, change or entirely abrogate common law rules through its exercise of the legislative power under the Hawaii State Constitution, but in the exercise of such power, the legislature may not violate a constitutional provision. Warehouse Co. v. Tobacco Growers, 276 U.S. 71, 48 S.Ct. 291, 72 L.Ed. 473 (1928); Pizitz Co. v. Yeldell, 274 U.S. 112, 47 S.Ct. 509, 71 L.Ed.2d 952 (1927); Vogts v. Guerrett, 142 Colo. 527, 351 P.2d 851 (1960).

The question is whether the grant of immunity to the engineer and the contractor violates any provision of the Hawaii State Constitution or the United States Constitution.

EQUAL PROTECTION

We have said that 'what is prohibited by the equal protection guaranty is class legislation, discriminating against some and favoring others. The guaranty was not intended to take from the states the right and power to classify the subjects of legislation, provided such classification of persons and things is reasonable for the purpose of legislation.' State v. Johnston, 51 Haw. 195, 203, 456 P.2d 805, 810 (1969), appeal dismissed, 397 U.S. 336, 90 S.Ct. 1152, 25 L.Ed.2d 352 (1970).

We also said that 'in exercising this right to classify in order to achieve social goals the legislature may not act arbitrarily that is, the classification of a particular group as a subject for regulation must be reasonable in relation to the purpose of the legislation.' Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 439, 475 P.2d 679, 681 (1970).

The United States Supreme Court said that the equal protection guaranty

'does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subject(ed) to such legislation shall be treated alke, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.' Thus the guaranty was intended to secure equality of protection not only for all but against all similarly situated. Indeed, protection is not protection unless it does so. Immunity granted to a class, however limited, having the effect to deprive another class, however limited of a personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted working against, a larger class. Truax v. Corrigan, 257 U.S. 312, 333, 42 S.Ct. 124, 130, 66 L.Ed. 254 (1921).

It would appear that the object or purpose of the legislation was to grant immunity to registered and licensed persons performing services in the construction industry. One may question whether this grant of immunity is justified as a reasonable exercise of the police power of the state. However, assuming that the legislature under its police power was justified in enacting the statute, can the discrimination or classification be upheld under the equal protection guaranty?

Under the record of this case it must be assumed...