Holstein v. Benedict

• Decision Date: 22 January 1915
• Citation: 22 Haw. 441
• Parties: THOMAS HOLSTEIN v. PAUL H. BENEDICT, ADMINISTRATOR OF THE ESTATE OF KELUPE SILVA, DECEASED.
• Court: Hawaii Supreme Court

22 Haw. 441

THOMAS HOLSTEIN

v.PAUL H. BENEDICT, ADMINISTRATOR OF THE ESTATE OF KELUPE SILVA, DECEASED.

Supreme Court of the Territory of Hawai‘i.

Submitted January 18, 1915.

Decided January 22, 1915.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT, SECOND CIRCUIT. HON. W. S. EDINGS, JUDGE.

Syllabus by the Court

The general rule applied, that on exceptions to instructions given or requests therefor refused, the charge given to the jury should be in the record

Only errors of law apparent on the record are reviewable on error. Facts which do not appear in the record may not be brought to the attention of the supreme court by means of exhibits attached to briefs of counsel.

Where maintenance and services are rendered between relatives living together as one household there is a presumption that they were intended to be gratuitous. In order to recover therefor the plaintiff must overcome this presumption by proving affirmatively either an express contract for remuneration or circumstances showing a mutual understanding or expectation between the parties that there would be compensation.

To amount to more than a scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced.Enos Vincent for plaintiff in error.

E. R. Bevins for defendant in error.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

OPINION OF THE COURT BY ROBERTSON, C.J.

The defendant in error recovered judgment in the circuit court of the second circuit for the sum of $158, and costs and attorney's fees, against the plaintiff in error in an action of assumpsit for maintenance and support furnished and services rendered, as it was alleged, to one Kelupe Silva, since deceased, of whose estate the plaintiff in error was the administrator.

Three of the assignments of error relate to the giving or refusing of certain instructions. These cannot be considered for the reason that the court's charge to the jury is not in the record. Kaupena v. Kaio, 20 Haw. 653, 655.

Another assignment questions the validity of the judgment on the ground that after verdict, but before judgment was entered, Benedict had been discharged as administrator and one Lufkin appointed in his place. It does not appear that those facts were brought to the attention of the court below. Counsel for the plaintiff in error has attempted to bring them before this court by attaching to his brief a certified copy of an order approving the accounts of Benedict, discharging him, and appointing Lufkin in his place. Facts which do not appear in the record may not be laid before this court in any such manner upon the expectation that they will be considered. Only errors of law apparent on the record are reviewable on error. Vierra v. Hackfeld, 8 Haw. 436; R. L. Sec. 1871. The action of counsel in attaching a copy of the order mentioned to his brief is disapproved.

The principal assignments of error go to the merits of the case and raise the question whether the verdict was supported by the evidence. Undisputed testimony showed that on the day of the death of her husband, June 13, 1912, Kelupe Silva went to the home of Thomas Holstein at Waikapu, Maui, and continued to live there until November 18, 1912; that Mrs. Silva was an elderly woman and suffered from asthma; and that she was the grand-aunt by marriage of Mrs. Holstein, plaintiff's wife. The plaintiff's claim was for one dollar a day as the reasonable value of the food and attendance furnished to Mrs. Silva by the plaintiff and his wife during the period stated. The plaintiff testified that he took care of Mrs. Silva believing that he would be paid by her in some way, though there was no promise on her part to pay any sum, and he never informed her that he intended to charge her anything. There was no evidence of any conversation between the plaintiff and Mrs. Silva with reference to her living at his home. Against the objection of the defendant the wife of the plaintiff testified to a conversation she had had with Mrs. Silva, as follows: “After she had lived with us a couple of months, one day I spoke to her: ‘Perhaps it may be well for you to return to your own house now, we go and fix your house,’ and she said, ‘I hope you will be kind enough to let me stay with you-you will be paid some day.”’ We may assume that the evidence was admissible either as part of the res gestae or as a declaration against interest, and that, if there was anything else in the case to support the plaintiff's claim, it might be regarded as of some probative force. But the question arises whether that testimony standing alone constitutes more than a mere scintilla of evidence to support the verdict, there being nothing else in the case to meet the principles of law applicable to cases of this kind. Those principles are stated in 15 A. & E. Enc. Law, 1083, et seq., thus: “Ordinarily where services are...