Ginoza v. Kosuke Takai & Shigeko Takai, Doing Bus. Co.
| Decision Date | 14 January 1955 |
| Docket Number | AND NO. 2937.,NO. 2936,2936 |
| Citation | 40 Haw. 691 |
| Parties | DORIS KATSUKO GINOZA, AND STANLEY TOSHIO GINOZA AND JUDY MICHIKO GINOZA, MINORS, BY DORIS KATSUKO GINOZA, THEIR PROCHEIN AMI v. KOSUKE TAKAI AND SHIGEKO TAKAI, DOING BUSINESS AS TAKAI ELECTRIC COMPANY. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. R. B. JAMIESON, JUDGE.
Syllabus by the Court
Alleged improper remarks of counsel which do not appear verbatim in the transcript, and where no request was made at trial that argument of counsel be recorded (R. L. H. 1945, § 9732), although presented in the bill of exceptions, the motion for new trial, and in appellants' brief, in three alternate and separate versions are not sufficiently definite and precise to warrant consideration on a bill of exceptions taken from the denial of a motion for a new trial.
In an action by decedent's wife and minor children for the wrongful death of her husband alleged to have been electrocuted due to defendants' failure to install a ground system in plaintiffs' home, statements made by plaintiffs' counsel in the closing argument that the defendant did not attend the decedent's funeral or apologize to the decedent's wife constituted remarks characterizing callousness and indifference, and which of themselves in the circumstances presented were not prejudicial in such degree as to result in manifest injustice warranting the granting of a new trial.
Determination of the scope and latitude of argument to a jury rests in the discretion of the trial court subject to the provisions of section 10121 of the Revised Laws of Hawaii 1945, and this court is hesitant to interfere with the exercise of that discretion when involving alleged improper remarks of counsel unless it is made to appear that a manifest injustice has been done and a convincing showing of error and prejudice is made in support thereof.
In an action by decedent's wife and two minor children for wrongful death under a statute allowing such damages “as under all circumstances may be just” (R. L. H. 1945, § 10486), and subject only to the limitation that “damages awarded must be compensatory and must be confined to compensation for pecuniary loss suffered by the dependents” (Enos v. Motor Coach Co., 34 Haw. 5, 7), the verdict of a jury awarding plaintiffs $80,000 apportioned damages is not excessive in circumstances where decedent, among other things, was of sober and temperate habits, in good health with a life expectancy of 37.74 years, earning an average monthly income of $165.00 and requiring personal expenses of but approximately $10.00 per month, and where an increased expectancy in earnings to approximately $300.00 per month within three to six years was shown.
The determination of damages is a matter so within the exclusive province of the jury that its findings will not be disturbed on review unless palpably not supported by the evidence, or the amount so excessive and outrageous when considered with all of the facts and circumstances as to demonstrate that the jury in assessing damages departed from applicable principles of law or permitted their passions or prejudices to mislead them.
In an action for wrongful death, damages suffered from the loss of care, attention, acts of kindness and the comfort and solace of the society of the deceased, may be awarded. In assessing damages arising from the loss of acts of kindness and attention no fixed standard of values is applicable nor are such acts capable of estimation in exactitude except as they may accompany and constitute a part of service in the family. Hence, while pecuniary damages are the limit of recovery, such damages also include compensation for losses which such as these, are difficult of exact estimation and to which no fixed standard of value may be applied and which therefore must necessarily be left to the sound discretion of the trier of facts.
The giving of an instruction omitting the term “pecuniary” preceding two separate clauses allowing the jury to assess “damages, if any, arising from the loss of care, attention, acts of kindness, comfort and solace of his society,” does not constitute reversible error, where the term “pecuniary” twice appeared in other appropriate portions of the same instruction, and where no objection or request was made to the trial court to substitute a more specific and explicit instruction.
The giving of an instruction defining a “new and independent cause” does not constitute reversible error where the record bears no objection noted or request made to the trial court for a further or amended instruction. Though it is contended that an instruction is ambiguous and misleading, the mere noting of an exception unaccompanied by a specific and detailed request for a further or amended instruction does not properly preserve the issue for review.
The sufficiency of an instruction or any portion thereof, is determined in relation to its context together with all of the other instructions given as a whole, and for this purpose all instructions given touching upon the same principle of law are considered as an integrated whole in order to ascertain whether they, collectively, correctly state the principle. Alleged omissions or inaccuracies asserted as to one instruction may be cured by other instructions, or some of them; and if, when all of the instructions given are considered as a connected whole, they correctly state a principle and when so considered are not inconsistent or misleading, the fact that any one particular instruction or a portion thereof may be objectionable is cured, such instruction does not constitute ground for reversal.
The manner of the introduction of testimony, the latitude allowed counsel particularly upon cross–examination, and the propriety of permitting leading questions is vested largely in the discretion of the trial court, and the exercise of this discretion will not be disturbed except upon a clear showing of abuse.
Evidence of an experiment performed during the course of trial is admissible if otherwise relevant and material if the circumstances under which it was performed were similar or substantially similar to the circumstances prevailing at the time of the occurrence of the matter in controversy. Minor dissimilarities, variations, or departures from such prevailing conditions bear only upon the weight to be accorded such evidence rather than its admissibility, and being within the discretion of the trial court the exercise of this discretion will not be disturbed except upon a clear showing of abuse.
Under section 10490 of the Revised Laws of Hawaii 1945, of the Uniform Contribution Among Joint Tortfeasors Act, a trial judge may reduce a jury's verdict of $80,000 awarded to plaintiffs, and enter judgment for $72,500 plus cost, where the evidence establishes that the variant of $7,500 was the consideration paid to the plaintiffs prior to suit by an alleged joint tortfeasor not a party to the action for its release from alleged liability. The operation of section 10490 upon a plaintiff's unadjudicated claim against such alleged joint tortfeasor not a party to the action results in reducing any judgment awarded in the action by an amount at least as great as the consideration paid for the release, or even greater than that amount if the release so provides. Its provisions do not contemplate a determination by the trial court of the released joint tortfeasor's alleged liability as a prerequisite to so reducing a verdict rendered against another alleged tortfeasor in the action. It is sufficient if the evidence establishes an appearance of liability, that is, something in the nature of a claim on the one hand and a possible liability under the rules of law on the other.
Castle & Anthony with him on the briefs) for defendants–appellants in case No. 2936.
W. G. Chuck & K. Miho ( Fong, Miho, Choy & Chuck on the brief) for plaintiffs–appellees in case No. 2936.
W. G. Chuck & K. Miho ( Fong, Miho, Choy & Chuck on the briefs) for plaintiffs–appellants in case No. 2937.
F. D. Padgett ( Tsukiyama & Yamaguchi and Robertson, Castle & Anthony with him on the brief) for defendants–appellees in case No. 2937.
Cross appeals by way of bills of exception were taken from a judgment of $72,500 and costs awarded to Doris Ginoza and her two minor children for the wrongful death of her husband.
The plaintiffs below, referred to herein as appellees, attack only the action of the trial judge in reducing the $80,000 verdict of the jury by $7,500, that amount representing the sum tendered to the plaintiffs below for the unconditional release of the Hawaiian Electric Company, Limited, prior to the institution of the instant proceedings in the apportioned amounts of $5,000 to the widow and $1,250 to each of the minors.
The defendants below, referred to herein as appellants, seek reversal of the judgment principally upon grounds of alleged errors committed during the course of the trial.
In September, 1949, Doris Ginoza telephoned the appellant partnership doing business as the Takai Electric Company, and secured an estimate for the installation of four electric pull–chain lights and a wall plug in the Ginoza home in Honouliuli. Shortly thereafter she telephoned acceptance of the estimate and ordered the installation. The testimony is in conflict upon whether a discussion took place at that time regarding compliance with applicable regulations governing electrical installations––the appellants contending that compliance with all governing regulations would have required more work than requested in the original estimate––the appellees contending that the estimated figure be construed to include the cost of the entire installation agreed upon. On October 6, 1949, the installation...
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