James W. Glover, Ltd. v. Fong

• Decision Date: 13 June 1958
• Docket Number: No. 3091.,3091.
• Citation: 42 Haw. 560
• Parties: JAMES W. GLOVER, LIMITED v. LEONARD K. FONG.
• Court: Hawaii Supreme Court

42 Haw. 560

JAMES W. GLOVER, LIMITED

v.LEONARD K. FONG.

No. 3091.

Supreme Court of the Territory of Hawai‘i.

Argued March 20 and June 9, 1958.

Decided June 13, 1958.

APPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. HARRY R. HEWITT, JUDGE.

Syllabus by the Court

A public officer is liable for damages that proximately result from his failure to perform a purely ministerial duty. Malice is not a requisite element of such liability.

Where a public officer is liable for damages for failure to perform a purely ministerial duty, loss of use of money is a proper item of damages even where there is no showing of malice, but quaere as to legal fees and expenses in the absence of malice.

A party may not, on appeal, question any error of the trial court brought about by his invitation, except as to errors that are jurisdictional. It makes no difference that an objection to the court's action was noted when the question was presented previously at the trial. He should have stood by his objection.

The doctrine of stare decisis relates to questions of law, that is, to the effect of legal propositions announced in prior adjudications upon subsequent actions which involve similar questions between strangers to the proceedings in which the adjudications were made.

The doctrine of stare decisis does not prohibit this court from overruling its prior decision, upon reexamination, if it is convinced that the decision was erroneous.

The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.

The force of a final adjudication as res judicata is not destroyed even though it is erroneous.

A judgment is final where the time to appeal has expired without an appeal being taken.

The doctrine of the law of the case is that a determination of a question of law made by an appellate court in the course of an action becomes “the law of the case” and may not be disputed by a reopening of the question at a later stage of the litigation. It does not have the rigidity of res judicata and this court may deviate therefrom in a proper case.

This court will not, as a general rule, consider any question not necessary or relevant to the final determination of the appeal. Exceptions are made on questions of great public importance, where it is undesirable to leave a questionable prior decision as controlling precedent.

Where the clerk of the circuit court transmits and certifies to this court the minutes of the circuit court without identifying the matter specified in the designation of contents of the record on appeal, the entire minutes constitute the record on appeal.Earl S. Robinson ( Fong, Miho, Choy & Chuck on the briefs) for appellant.

Frank D. Padgett ( Robertson, Castle & Anthony with him on the brief) for appellee.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY MARUMOTO, J.

This is an appeal by the defendant from a final judgment entered in a tort action filed as a sequel to Glover v. Fong, 39 Haw. 308. We will hereafter refer to Glover v. Fong, supra, as the mandamus case. In that case, this court affirmed the issuance by the circuit court of a peremptory writ of mandamus directed to the defendant.

The instant case was previously before this court on plaintiff's appeal from an order of the circuit court sustaining defendant's demurrer to the complaint. On that occasion, this court reversed the order of the circuit court. (Glover v. Fong, 40 Haw. 503) We will hereafter refer to that appeal as the prior appeal.

The background of this case is stated in the opinion of this court in the mandamus case. Here, only such facts as are necessary for the determination of the questions involved on this appeal will be stated.

Plaintiff is a contractor. It had claims against the city and county of Honolulu, totaling $79,651.54, in connection with a contract for the construction of a sewer line. The city and county controller preaudited the claims and approved their payment. Defendant was the auditor of the city and county of Honolulu when the controller approved the payment of the claims. He refused to draw warrants for their payment despite the controller's approval. Plaintiff, thereupon, brought the mandamus case.

Upon the termination of the mandamus case, plaintiff filed the instant case to recover its damages incident to defendant's failure to draw the warrants. Plaintiff stated his cause of action in two counts. Although the counts are denominated causes of action in the complaint, they are properly separate counts and were treated as such at the trial.

In the first count, plaintiff alleged that it was damaged by the filing of a return to an alternative writ of mandamus by the defendant which contained material allegations of fact which he knew to be false. In the second count, it alleged that it was damaged by defendant's malicious, wilful and arbitrary conduct in refusing to perform the plain duties of his office. Under such allegations, plaintiff sought to recover special damages for loss of use of the money which should have been paid to it promptly upon approval of its claims by the controller and legal fees and expenses incurred in the mandamus case; and it also sought to recover punitive damages for defendant's malicious conduct and harassing actions in depriving it of the use of the money and forcing it to incur legal fees and expenses in the assertion of its right to prompt payment of the money.

The case was tried before a jury. The jury returned a verdict of no damage, either special or punitive, under the first count, and special damage of $14,308.28, but no punitive damage, under the second count. The verdict of special damage under the second count was for precisely the amount of legal fees and expenses incurred by the plaintiff in the mandamus case.

On this appeal, the defendant charges that the trial court erred in refusing to give to the jury instructions Nos. 1 and 20 requested by him and in giving instructions Nos. 6 and 7 requested by the plaintiff. Defendant's objections to the action of the court with respect to these instructions are noted in its minutes.

Defendant's principal complaint concerns the giving of plaintiff's requested instruction No. 6. That instruction read as follows:

“Where the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct, irrespective of any mistake as to his duty and honest intentions.

“You are instructed that it has already been adjudicated and therefore is the law that the defendant as auditor had a ministerial duty to draw the warrants which were the subject of the mandamus action and that therefore as to Count 2 you must render a verdict awarding to the plaintiff such actual damages as you may find from the evidence the plaintiff suffered as a result of defendant's disobedience. The evidence in this case is that plaintiff suffered actual damage consisting of the interest on the respective vouchers from the dates upon which payments should have been made to it and attorney's fees and expenses incurred by plaintiff to compel defendant to perform his ministerial duty of issuing the warrants.”

The trial court initially refused to give the instruction. However, upon further consideration, it reluctantly gave the instruction because, in its view, the instruction embodied the holdings of this court in the mandamus case and on the prior appeal and it was bound to follow such holdings regardless of its opinion as to their soundness.

The court was correct in its view that it was bound to follow such holdings. In connection with the instant action, the holding in the mandamus case is res judicata and the holding on the prior appeal established the law of the case.

It was also correct in taking the view that the instruction embodied the holding in the mandamus case. The holding in the mandamus case is that the defendant had a purely ministerial duty to draw the warrants in payment of plaintiff's claim. The instruction contained a statement to that effect.

We do not think that the court was correct in its view that the instruction embodied the holding on the prior appeal. On the prior appeal, the question before this court was whether the complaint stated a cause of action. Both under the first count and the second count, the cause of action was predicated upon defendant's allegedly malicious misconduct. Thus, the holding on the prior appeal related only to a situation which involved malice and did not cover a situation where malice was absent, despite the language in the opinion which appears to countenance a wider coverage. The instruction contained no reference to malice.

We are then confronted with the question as to whether the instruction correctly stated the applicable law, aside from the question as to whether it embodied the holding on the prior appeal.

The instruction purported to state the law with respect to the basis of liability and the law with respect to the measure of special damages.

It correctly stated the law with respect to the basis of liability. A public officer is liable for damages that proximately result from his failure to perform a purely ministerial duty. Malice is not a requisite element of such liability. (Amy v. The Supervisors, 11 Wall. 136; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65;Hupe v. Sommer, 88 Kan. 561, 129 Pac. 136; McGraw v. Gresser, 226 N. Y. 57, 123 N. E. 84; Stiles v. Morse, 233 Mass. 174, 123 N. E. 615; Industrial Commission v. Strong, 77 Colo. 590, 239 Pac. 12; Talmadge v. McDonald, 44 Ga. App. 728, 162 S. E. 856;Rowley v. Ferguson, [Ohio App.] 48 N. E. [2d] 243)

We cannot say categorically that the...