Greene v. Texeira

• Decision Date: 23 January 1973
• Docket Number: No. 5082,5082
• Citation: 505 P.2d 1169,54 Haw. 231
• Parties: , 76 A.L.R.3d 111 Florence GREENE, as Administrix of the Estate of Michael T. Greene, Plaintiff-Appellant, v. John TEXEIRA and Maxine Texeira, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1169

505 P.2d 1169

54 Haw. 231, 76 A.L.R.3d 111

Florence GREENE, as Administrix of the Estate of Michael T.

Greene, Plaintiff-Appellant, v. John TEXEIRA and Maxine Texeira, Defendants-Appellees.

No. 5082.

Supreme Court of Hawai'i.

Jan. 23, 1973.

Syllabus by the Court

1. The probable future excess earnings of a decedent are not a proper item for damages in an action under the Hawaii survival statute, HRS § 633-7. Rohlfing v. Akiona, 45 Haw. 373, 369 P.2d 96 (1961) is overruled.

2. An appellate court may consider an issue raised for the first time on the court's own motion, subsequent to submission of briefs and oral argument, where the issue is such that full and fair consideration thereof requires no further presentation of facts by either party, resolution thereof will not affect the integrity of the facts found by the lower court, and the issue involves a question of great public import.

3. Under the Hawaii survival statute, HRS § 663-7, there survives in favor of the decedent's legal representative only such cause of action as the decedent himself had at the moment of his death.

4. In an action for personal injuries, an injured plaintiff is not entitled to recover damages for any earnings he would likely have made, if living, in that part of his life lost by reason of his injuries.

5. The purpose of damages in wrongful death and survival statutes is compensation for loss, not punishment.

6. Where a plaintiff in a personal injury suit alleges multiple injuries, any one of which might have supported an action for damages, that plaintiff is entitled to instructions which provide for separate consideration as to each alleged injury.

7. It is generally preferable to combine instructions and eliminate repetition whenever possible.

Burnham H. Greeley, Honolulu (Padgett, Greeley, Marumoto & Steiner, Honolulu, of counsel), for plaintiff-appellant.

Dennis E. W. O'Connor and Peter G. Wheelon, Honolulu (Anthony, Hoodick, Reinwald & O'Connor, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., ABE, LEVINSON and KOBAYASHI, JJ., and CHANG, Circuit Judge, in place of MARUMOTO, J., disqualified.

RICHARDSON, Chief Justice.

This appeal arises out of consolidated actions brought by Florence Greene, the appellant herein, in her individual capacity and as administratrix of the estate of her son, Michael T. Greene, against John and Maxine Texeira, parents of Ronald Texeira a minor, ¹ pursuant to HRS §§ 633-3 ² and 633-7. ³ The claims were the result of an automobile accident involving a single vehicle driven by Ronald Texeira. Michael T. Greene, a passenger in the car, sustained injuries from which he died, following 45 days of hospitalization. Michael was 19 years of age, unmarried, and a college freshman at the time of his death.

On April 27, 1970, verdicts were returned. The jury awarded the mother $30,000 under the Wrongful Death Act, HRS § 663-3, and $5,000 under the Survival Statute, HRS § 663-7. Judgment was entered in accordance with the verdicts on April 30, 1970. The Wrongful Death Act judgment was satisfied, but the administratrix appealed from the judgment under the Survival Statute.

The appellant alleges four specifications of error on appeal: (1) that the circuit court (a) erroneously permitted the introduction of evidence relating to the effect of federal and state income taxes upon the probable net excess earnings of the decedent, and (b) erroneously instructed the jury that these taxes were to be deducted from the present value of such earnings; (2) that the circuit court erroneously permitted the introduction of evidence concerning the cost of supporting a hypothetical wife and two hypothetical children and allowed the jury to deduct this amount from its award of probable net excess earnings; (3) that the circuit court improperly permitted the appellees to pose hypothetical questions to a witness based on the assumption that the present value of decedent's probable excess earnings should be determined on the basis of a 6% discount factor; and, (4) that the circuit court erred in refusing certain jury instructions concerning injuries which the decedent allegedly suffered as a result of the automobile accident.

The first three specifications of error alleged by the appellant concern the probable future earnings of the decedent, in excess of the probable cost of his own maintenance and the provision he would have made for his family and dependents during the time he would likely have lived but for the accident. That such earnings are a proper item of damages in an action under HRS § 663-7 was determined by this court in Rohlfing v. Akiona, 45 Haw. 373, 369 P.2d 96 (1961).

Following the submission of briefs and oral argument, the court began to reconsider the merits of the Rohlfing interpretation of § 663-7. On September 6, 1972, additional briefs were requested of counsel on both sides, directed to the question whether HRS § 663-7 or any other section of the Hawaii Revised Statutes, or the common law of Hawaii as defined in HRS § 1-1, provides a right to recovery in favor of an estate for damages based on the probable net excess earnings of a decedent projected beyond the date of his death, special consideration being given to whether Rohlfing v. Akiona should be overruled. Simultaneous reply briefs were thereafter requested and submitted, directed to the same issues.

Much deliberation and through consideration of this issue have led us to conclude that the probable future excess earnings of a decedent are not a proper item for damages under the Hawaii Survival Statute, HRS § 663-7. Insofar as Rohlfing v. Akiona, supra, conflicts with this determination it is hereby overruled.

A preliminary question on this appeal is whether it is proper for this court to consider an issue raised for the first time on the court's own motion, subsequent to submission of briefs and oral argument. We feel that in the circumstances of this case such a procedure is proper.

Rule 3(b)(3) of the Rules of the Supreme Court provides that the opening brief shall contain a 'short and concise statement of . . . questions presented for decision,' and further that '(q)uestions not presented . . . will be disregarded.' This cautionary admonition is modified by the final sentence in that paragraph, however, which provides: 'The court, at its option, may notice a plain error not presented.' This court is of the opinion that Rohlfing, supra, upon which three of appellant's four specifications of error are based, does not correctly state the law of Hawaii and reliance upon it is a plain error contemplated by the rule.

A similar issue was recently presented to this court in In re Taxes, Hawaiian Land Co., 53 Haw. 45, 487 P.2d 1070 (1971). In that case an issue of statutory application was raised for the first time in the reply brief. Id., at 52, 487 P.2d 1070. This court allowed both parties to submit further supplemental briefs on the matter. Id. We then listed three factors which should be considered before allowing a decision on an issue not raised in the opining brief: (1) whether the issue goes to the integrity of the fact finding process; (2) to what extent an error may have been correctable if properly raised; and (3) whether the issue involves questions of fact that were not but could have been fully developed in the trial court. Id. at 53, 487 P.2d 1070. We concluded that 'If none of these factors are present, it is well within our discretion to hear new legal arguments, especially if it involves a question of great public import.' Id.

In the present case, appellant at trial had full opportunity to present his facts on all issues concerning damages. Overruling Rohlfing by this court merely rendered trial of one issue, that concerning decedent's excess earnings, superfluous. The great importance to the public of a proper interpretation of Hawaii's Survival Statute is obvious. Thus, we will consider the issue whether the decedent's excess earnings are a proper item of damages under HRS § 633-7.

Under HRS § 663-7 there survives in favor of the decedent's legal representative only such cause of action as the decedent himself had at the moment of his death. Rohlfing v. Akiona, supra, 45 Haw. at 377, 400, 369 P.2d 96. The crux of the majority opinion in Rohlfing was that an injured person has a right to recovery of all future earnings lost as a result of his injury and that the intervention of death should not divest the decedent's estate of that right.

We have come to the conclusion that the minority opinion in Rohlfing presents the most sound position on this issue; that an injured plaintiff is not entitled to recover damages 'for any earnings he might be supposedto make, if living, in that part of his life lost by reason of his injuries.' Kraskowski v. Aurora, Elgin & Chicago R. R., 167 Ill.App. 469, 472-473 (1912). As the decedent would not have been entitled to recover such earnings in his lifetime, it follows that his representative is not entitled to recover such earnings in a later survival action under HRS § 663-7.

Our interpretation of HRS § 663-7 is in accordance with the view of most states with statutes such as ours. In the majority of jurisdictions with both Survival and Wrongful Death statutes, recovery for lost earnings under the Survival Statute is not permitted beyond the time of death. McCormick, Damages, § 94 (1935); Prosser, Torts, § 127 (4th Ed. 1971); Speiser, Recovery for Wrongful Death, § 14:4 (1966). See, e. g., Farrington v. Stoddard, 115 F.2d 96 (1st Cir. 1940); O'Leary v. United States Lines Co., 111 F.Supp. 745 (D.Mass.1953); Ellis v. Brown, 77 So.2d 845 (Fla.1955); Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922); Gochenour v. St. Louis San Francisco Ry., 205 Okl. 594, 239 P.2d 769 (1952).

Our interpretation of HRS § 663-7 recognizes that the aim of the statutes in this area of the law is compensation for loss rather than...