Hymer v. Chai

• Citation: 407 F.2d 136
• Decision Date: 13 February 1969
• Docket Number: No. 22081.,22081.
• Parties: Karen Jean HYMER, Defendant-Appellant, v. Benjamin K. CHAI and Victoria Leilani Chai, Plaintiffs-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

407 F.2d 136 (1969)

Karen Jean HYMER, Defendant-Appellant, v. Benjamin K. CHAI and Victoria Leilani Chai, Plaintiffs-Appellees.

No. 22081.

United States Court of Appeals Ninth Circuit.

February 13, 1969.

Albert Gould (argued), of Cobb & Gould, Honolulu, Hawaii, for appellant.

Dennis E. W. O'Connor (argued), of Robertson, Castle & Anthony, Honolulu, Hawaii, for appellees.

Before MERRILL, BROWNING, and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Appellees Mr. and Mrs. Chai brought a diversity action in the Hawaiian District Court for damages resulting from a collision between a motorcycle driven by Mr. Chai and a car driven by appellant Mrs. Hymer. Mr. Chai sought $75,000 damages for personal injuries and damage to his motorcycle and Mrs. Chai claimed $7500 for loss of consortium. The jury returned a $48,000 verdict for Mr. Chai and a $5000 verdict for Mrs Chai.

Mrs. Hymer asserts several grounds for reversal, but only two need be discussed: (1) Did the court have jurisdiction to adjudicate the claim of Mrs. Chai for loss of consortium? (2) Did the court prejudicially err in failing to give Mrs. Hymer's requested instruction concerning exercise of the right of way at an intersection? We have concluded that both issues must be resolved in favor of Mrs. Hymer and, therefore, both judgments must be reversed.

Mrs. Chai's claim for loss of consortium

Mrs. Chai's claim of $7500 damages for loss of consortium fell below the monetary minimum necessary to sustain federal diversity jurisdiction (28 U.S.C. § 1332(a)), and no independent basis for federal jurisdiction existed. The District Court had no jurisdiction to entertain Mrs. Chai's action unless her claim can be tacked to her husband's action by the doctrinal thread known as "pendent jurisdiction."

The doctrine of pendent jurisdiction permits a federal court to accept jurisdiction of a party's nonfederal claims which are intertwined with his federal claims in a case in which all of the claims emerge from "a common nucleus of operative fact." (United Mine Workers v. Gibbs (1966) 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218.) Pendent jurisdiction was devised to avoid the waste and inefficiency resulting from fragmenting a single action and dividing the pieces into separate proceedings before the state and federal courts and to encourage a party who had a claim presenting a substantial federal question, mixed with a nonfederal claim, to take his bundle of claims to the federal court.¹

Joinder of claims, not joinder of parties, is the object of the doctrine. It was not designed to permit a party without a federally cognizable claim to invoke federal jurisdiction by joining a different party plaintiff asserting an independent federal claim growing out of the same operative facts. (United Mine Workers v. Gibbs, supra; Hurn v. Oursler (1932) 289 U.S. 238, 245-246, 53 S.Ct. 586, 77 L.Ed. 1148; cf. Kataoka v. May Department Stores Co. (9th Cir. 1940) 115 F.2d 521.)

Mrs. Chai contends that the doctrine should be extended to encompass her claim because her action for loss of consortium is ancillary to her husband's personal injury claim and both claims should be tried together to avoid piecemeal litigation. To support her argument she cites two decisions of the Third Circuit, Wilson v. American Chair & Cable Co. (1966) 364 F.2d 558, 564 and Borror v. Sharon Steel Co. (1964) 327 F.2d 165, and two District Court decisions, Morris v. Gimbel Brothers, Inc. (E.D.Pa.1965) 246 F.Supp. 984 and Raybould v. Mancini Fattore Co. (E.D.Mich. 1960) 186 F.Supp. 235.² Wilson, Borror, and Raybould permit a single plaintiff, acting in a dual capacity, to tack a claim not federally cognizable to an intimately related federally recognized claim to bring the former within the jurisdiction of the federal court. The Wilson result is contrary to our decision in Kataoka, supra.³ We are bound by Kataoka and must decline to follow Wilson, Borror, Raybould,⁴ and Morris.⁵ We hold that the District Court did not have jurisdiction to entertain Mrs. Chai's claim for loss of consortium.⁶

Mr. Chai's personal injury action

The collision occurred during the morning rush hour traffic on heavily traveled Kamehameha Highway in Honolulu, Hawaii. Mrs. Hymer was attempting to make a left turn from Kamehameha onto Lipoa Street. Mr. Chai was traveling on Kamehameha approaching the intersection from the opposite direction. Kamehameha consists of three lanes in each direction, with the outside lane extending approximately one tenth of a mile in each direction from Lipoa Street. Mr. Chai was riding his motorcycle in the outside lane. In the stop-and-go traffic, cars in the two primary lanes of Kamehameha stopped to allow Mrs. Hymer to make her turn. She did not see any vehicles in the third lane and slowly began making her turn. Meanwhile, Mr. Chai was riding his motorcycle at about 32 miles per hour down the outside lane.

Neither party saw the other until just before the collision. Mr. Chai's motorcycle struck the right side of Mrs. Hymer's car. The motorcycle was demolished and Mr. Chai was seriously injured.

Mr. Chai's theory of liability was that he had the right of way and that Mrs. Hymer was negligent in failing to yield it to him. The court instructed the jury, in accordance with the Honolulu Traffic Code, that the driver of a vehicle making a left turn must yield the right of way to an approaching vehicle which is close enough to constitute an immediate hazard and further instructed that violation of that provision is evidence of negligence.

Mrs. Hymer contends that the court prejudicially erred in refusing her requested instruction "that a right of way is not absolute but at all times relative and subject to the fundamental doctrine that a party shall exercise the right so as to avoid any injury to himself and others." Both parties agree that the refused instruction correctly states the Hawaiian law. (State v. Arena (1963) 46 Haw. 315, 379 P.2d 594, 20 A.L.R.3d 450; Mossman v. Sherman (1938) 34 Haw. 477; Ferrage v. Honolulu R. T. & L. Co. (1917) 24 Haw. 87.)

Mr. Chai says that there was no error in refusing the instruction because its substance was adequately covered by the instructions given.

In addition to giving general instructions defining negligence and contributory negligence, the court told the jury that Mrs. Hymer had to yield the right of way to Mr. Chai "unless otherwise instructed"⁷ and that the right of way is "a privilege" and not "a right."⁸ The court's description of the right of way as a privilege and not a right simply does not convey to the jury the message contained in the rejected instruction. (Cf. Young v. Price (Haw.1968) 442 P.2d 67; Borowsky v. Honolulu R. T. Co. Ltd. (1926) 29 Haw. 188; Hustace v. Davis (1917) 23 Haw. 606).

The failure to give the requested instruction was prejudicial error. The evidence of negligence and contributory negligence was in delicate balance. Both parties at the time of trial recognized that the right of way question was the fulcrum of liability.

The judgment in favor of Mr. Chai is reversed; the judgment in favor of Mrs. Chai is reversed with directions to dismiss.

1 United Mine Workers v. Gibbs, supra, 383 U.S. at 726-727, 86 S.Ct. 1130; Hurn v. Oursler (1933) 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. See generally, Olivieri v. Adams, 280 F.Supp. 428 (E.D.Pa.1968); Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262 (1968); Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Colum.L.Rev. 1018, 1044 (1962); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 218 (1948...