Harkins v. Ikeda

• Decision Date: 29 November 1976
• Docket Number: No. 5759,5759
• Citation: 557 P.2d 788,57 Haw. 378
• Parties: James A. HARKINS, Plaintiff-Appellant, and Jean N. Harkins, Plaintiff, v. Gilbert IKEDA, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 788

557 P.2d 788

57 Haw. 378

James A. HARKINS, Plaintiff-Appellant and Jean N. Harkins, Plaintiff, v. Gilbert IKEDA, Defendant-Appellee.

No. 5759.

Supreme Court of Hawai'i.

Nov. 29, 1976.

Syllabus by the Court

1. Both the grant or denial of a motion for new trial is within the trial court's discretion and will not be reversed, absent a clear abuse of discretion.

2. It is no abuse of discretion to grant a motion for new trial where the amount of damages awarded by the jury exceeds the amount possibly justified by the evidence.

3. Where after a second trial a jury returned a verdict based upon conflicting evidence on the issue of causation, the reviewing court will not find a clear abuse of discretion on the part of the trial court which heard all of the evidence, in denying a motion for new trial.

4. Even if there was a violation of the rule sequestering witnesses, the refusal of the trial court to disqualify defendant's expert witnesses who had previously read the depositions of plaintiff's doctors which were read into the record, was within the trial court's discretion and was not reversible error.

5. Costs may be awarded to the prevailing party in the sound discretion of the court.

6. The trial court's grant of mileage to an out of state witness measured by a distance no greater than the mileage from the state's furthermost subpoena jurisdictional point to the court is not erroneous.

7. The refusal of the trial court to tax hotel lodgings for witnesses and award a sum therefor as costs was not error.

Samuel Landau, Honolulu, for plaintiff-appellant.

Joseph Schneider (Conklin & Schneider, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and SODETANI, Circuit Judge, in place of KIDWELL, J., disqualified.

OGATA, Justice.

This is a negligence action arising out of a 'rear end' automobile collision. On February 2, 1972, the circuit court granted the plaintiffs' motion for partial summary judgment on the issue of liability and ordered that only the determination of damages remained for trial. After a jury had rendered a verdict of $40,000 special damages and $10,301 general damages in favor of plaintiff James A. Harkins and zero in favor of his wife, ¹ the trial judge granted the defendant's motion for new trial on the ground that the verdict was contrary to the weight of the evidence. A second trial resulted in a jury verdict of $260 special damages and $400.00 general damages in favor of plaintiff and zero in favor of his wife. From a judgment entered accordingly, plaintiff James A. Harkins appeals.

Plaintiff's first specification of error is that the trial court erred in granting the defendant's motion for new trial after the first jury had returned its verdict. His second specification is that at the end of the second trial the trial court erred in denying his own motion for a new trial or in the alternative motion for additur. An order granting a motion for new trial, although not by itself appealable, may be reviewed after verdict in the second trial. State v. Chang, 50 Haw. 195, 436 P.2d 3 (1967) (original verdict reinstated). Both the grant or denial of a motion for new trial, however, is within the trial court's discretion and will not be reversed absent a clear abuse of discretion. Petersen v. City and County, 53 Haw. 440, 496 P.2d 4 (1972); Struzik v. City and County, 50 Haw. 241, 437 P.2d 880 (1968); Johnson v. Sartain, 46 Haw. 112, 375 P.2d 229 (1962); Rainbow Island Productions, Ltd., v. Leong, 44 Haw. 134, 351 P.2d 1089 (1960); Pooler v. Stewarts' Pharmacies, Ltd., 42 Haw. 618 (1958).

The transcript of the hearing on the defendant's motion for new trial at the end of the first trial shows that the trial court did not believe the evidence adduced at trial supported $40,000 in special damages. The order granting the motion states that 'the verdict was contrary to the weight of the evidence.' It is no abuse of discretion to grant a motion for new trial where the amount of damages awarded by the jury exceeds the amount possibly justified by the evidence. Rainbow Island Productions, Ltd., v. Leong, supra; Tuck Chew v. Makee Sugar Co., 11 Haw. 453 (1898); cf. Striker v. Nakamura, 50 Haw. 590, 446 P.2d 35 (1968).

Plaintiff's own assessment of the evidence adduced at the first trial is that the maximum amount of special damages ² justified by the evidence was $27,500. ³ Since this figure does not approach $40,000, it was not an abuse of discretion to grant the motion for new trial. Indeed, if the motion had not been granted, there would have remained an error of law to be corrected upon appeal. Condron v. Harl, 46 Haw. 66, 374 P.2d 613 (1962).

The transcript of the hearing on the plaintiff's motion for new trial at the end of the second trial shows that the trial court remarked that since 'this is a jury trial . . . I must deny the motion unless I find that considering the evidence in light most favorable to the defense, no reasonable juror could have reached the conclusion the jurors did in this case.' After taking the matter under advisement for seven weeks, the trial court entered an order denying the motion without specifically giving its reason. A trial court may set aside a jury verdict when it appears to be 'so manifestly against the weight of the evidence as to indicate bias, prejudice, passion, or misunderstanding of the charge . . . on the part of the jury; or . . . for any legal cause.' HRS § 635-56; Rule 59, HRCP. But it must be remembered that respect for the jury's assessment of the evidence is constitutionally mandated. ⁴

The jury in the second trial was instructed to award such damages as would compensate plaintiff for all injuries sustained which occurred as a proximate result of the accident. The explanation tendered to us by the defendant for the lower award of special damages in the second trial is that the jury in that trial concluded that the only injuries which proximately resulted from the accident were his dental problems and the need to have x-rays taken of his neck; the defendant's explanation continues that the evidence supports a finding that expenses incurred by plaintiff in connection with these injuries were 40% of a $600 dental bill ($240) and $20 for neck x-rays. We agree. ⁵

The evidence on the issue of whether the plaintiff's neck injuries were caused by the accident or by some other event is conflicting. Defendant insisted that the plaintiff, himself a doctor and personal-injury lawyer, never sought medical attention for his neck until twenty-two months after the accident and that the neck injury was unrelated to the accident. Although the first jury apparently rejected this version of the facts, the second jury apparently found this to be the case. Our opinion of the facts is, of course, immaterial since the plaintiff does not contend that the evidence is insufficient to support the second jury's verdict. ⁶ The trial court, which heard all of the evidence, concluded that the jury could have reasonably rendered the verdict that it did. We cannot, on the basis of the cold record on appeal, say that the trial court's denial of plaintiff's motion for new trial is a clear abuse of its discretion.

At the request of counsel for defendant, apparently made in chambers, the trial court 'put all witnesses under the rule.' As plaintiff's third specification, he urges that the trial court erred by allowing defendant's expert medical witnesses to testify after they admitted that they had previously read depositions of plaintiff's doctors which were read into evidence at trial.

In State v. Leong, 51 Haw. 581, 583, 465 P.2d 560, 562 (1970), we stated:

'The purpose for the order excluding a witness from a courtroom is to prevent him from listening to testimony of other witnesses and then 'shaping' or fabricating his testimony accordingly. United States v. Leggett, 326 F.2d 613 (4th Cir. 1964); Witt v. United States, 196 F.2d 285 (9th Cir. 1952). It would appear that this may not be a very sound reason because there are other ways in which testimonies may be 'shaped' or fabricated. ¹'

In the above footnote 1 we remarked:

'E.g., by getting all witnesses together and drilling or rehearsing them; or by informing a witness as to testimony of other witnesses by notes, tape recording or other means.'

By this comment we certainly did not mean to approve methods of evading a trial court's order. It has been held to be a violation of the rule sequestering witnesses to have a transcript or notes of testimony read to a witness who is under the rule. See, e. g., Triton Oil and Gas Corporation v. E. W. Moran Drilling Co., 509 S.W.2d 678 (Tex.Civ.App.1974); Gatto v. Curtis, 6 Ill.App.3d 714, 286 N.E.2d 541 (1972). In the case before us, the witnesses were not asked and did not state whether they had read the depositions before or after the rule had been invoked. If they had read the depositions before trial began, they could not have violated 'the rule' as expressed by an order of the court, unless the court had, for example, issued a protective order pursuant to Rule 26(c), HRCP, preventing the disclosure of the contents of the depositions. In this case, there was no such pretrial order. Also, there is no record of the precise order excluding witnesses from the courtroom before us. The trial court in overruling plaintiff's objection at trial merely explained:

'So the record may be clear-I don't know if it is or not-Mr. Landau is objecting to this witness testifying because of the rule against a witness sitting in the courtroom and listening to the testimony from thereafter testifying; prohibits the Doctor who's read the deposition outside the courtroom from testifying under the same general theory.'

Hence, we cannot determine that violation of a court order excluding witnesses occurred. But even if there was a violation of the rule, the sanctions which a court chooses to attach to the violation of...