Hanu v. Yamaichi
| Decision Date | 02 April 1929 |
| Docket Number | No. 1837.,1837. |
| Citation | 30 Haw. 959 |
| Parties | ALMOS HANU v. Y. YAMAICHI. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT SECOND CIRCUIT. HON. D. H. CASE, JUDGE.
Syllabus by the Court
At common law an assignee of a chose in action acquired by said assignment the right to enforce said chose in the name of the assignor.
Section 2361, R. L. 1925, which confers upon the assignee of a non-negotiable chose in action, assigned in writing, the right to maintain thereon in his own name any action which, but for the assignment, might be maintained by the assignor, gives to the assignee rights which were not his at common law, but it does not deprive him of the common-law right referred to in the last preceding paragraph.
It is not error to deny a motion to amend a declaration upon a non-negotiable chose in action where the amendment seeks to substitute for the sole party plaintiff the latter's assignee pendente lite; and this without regard to the question of the assignability or non-assignability of said chose.
It is error to direct a verdict for the defendant in an action in trespass for assault and battery on the ground that the plaintiff has pendente lite transferred his claim to an assignee.E. Vincent for plaintiff.
J. L. Coke and W. T. O'Reilly for defendant.
This is an action in trespass for damages resulting from an alleged assault and battery. Upon the first trial of the case plaintiff obtained a verdict and judgment which upon exceptions to this court were vacated and set aside. For a statement of the facts in the case reference is made to Hanu v. Yamaichi, 29 Haw. 564. The case is now before us upon bill of exceptions to errors alleged to have been committed upon the retrial. Upon cross-examination of the plaintiff defendant introduced as his exhibit 1, without objection on the part of the plaintiff, a copy of an instrument which purported to be an assignment executed under date of July 20, 1926, from the plaintiff to A. F. Tavares, trustee, of all of the plaintiff's right, title and interest in and to the judgment aforesaid of May 17, 1926, together with the “claim and cause of action upon which said judgment is based.” This was offered by the defendant and admitted by the court for the purpose of showing that the plaintiff had transferred all his right, title and interest in the action then pending. Defendant then moved that “the case abate and the jury be instructed to return a verdict in favor of the defendant on the record as it now stands.” Whereupon the plaintiff moved to amend his declaration so that the title would read “A. F. Tavares, Trustee for Almos Hanu, Plaintiff, vs. Y. Yamaichi, Defendant,” and by adding a paragraph setting forth that “on the 20th day of July, 1926, Almos Hanu appointed A. F. Tavares, trustee, to prosecute the above entitled action and that the said proceedings be conducted in his name.”
The court then held that by the above named assignment the plaintiff had transferred to Tavares all of the plaintiff's interest in the claim upon which said judgment was based and denied plaintiff's motion to amend upon the ground that it would not be “right” to the defendant to permit a substitution of parties plaintiff at the stage to which the trial had then progressed-it then being too late to examine the jurors as to their bias or prejudice toward the assignee or thereafter to challenge them for cause or peremptorily. Said the court in conclusion: “The motion to amend will be denied and the jury instructed to return a verdict in favor of the defendant,” to which ruling the plaintiff noted an exception, which was allowed. Thereupon the court directed and the jury returned a verdict in favor of the defendant.
The questions presented by plaintiff's exceptions are: (1) Did the trial court err in denying plaintiff's motion to amend? and (2) Did said court err in granting the defendant's motion for a directed verdict? These points will be considered in the order in which they are above stated.
1. First, as to the plaintiff's motion to amend. The motion sought to substitute as sole party plaintiff the assignee of a non-negotiable chose in action under an assignment made pendente lite, for the assignor of said chose. The motion was opposed by defendant. The grounds for the opposition to the motion were that the amendment sought an entire change of parties; that there was nothing in the record to show that Tavares is trustee for Hanu, nothing to show that Tavares has authorized anyone to make him a party to the suit or that he desires to prosecute the same; and that the change may be prejudicial to the defendant because of the possible disqualification of the jurors by reason of their possible relationship to the new plaintiff. There was no allegation or showing of actual prejudice. It was not urged that a right of action in trespass for assault and battery is not assignable in Hawaii. The question apparently was not considered in the circuit court. Both parties and the...
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