Johnson for Galdeira v. Robert's Hawaii Tour, Inc.

• Citation: 664 P.2d 262,4 Haw.App. 175
• Decision Date: 25 April 1983
• Docket Number: No. 7985,7985
• Parties: Yolanda JOHNSON, individually and as Guardian Prochein Ami for Harry L. GALDEIRA, a minor, Plaintiffs-Appellants, v. ROBERT'S HAWAII TOUR, INC., James T. Taba, Fujio Sakurai, individually and as Guardian Ad Litem for John A. Sakurai, a minor, Defendants-Appellees.
• Court: Court of Appeals of Hawai'i

Page 262

664 P.2d 262

4 Haw.App. 175

Yolanda JOHNSON, individually and as Guardian Prochein Ami

for Harry L. GALDEIRA, a minor, Plaintiffs-Appellants, v. ROBERT'S HAWAII TOUR, INC., James T. Taba, Fujio Sakurai,

individually and as Guardian Ad Litem for John A.

Sakurai, a minor, Defendants-Appellees.

No. 7985.

Intermediate Court of Appeals of Hawai'i.

April 25, 1983.

Motion for Reconsideration Denied

May 9, 1983.

Syllabus by the Court

1. The failure of appellant to include in the appellate record the transcript of a hearing pertaining to an issue raised on appeal is fatal to that issue.

2. A motion for mistrial is directed to the discretion of the court and the trial court's denial of such motion will not be overturned on appeal absent a showing of abuse. Abuse is shown when the trial court's decision clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant.

3. The court may decline to address issues which are not raised in compliance with Rule 3(b)(5), Rules of the Supreme Court.

4. Depositions may be admitted into evidence pursuant to Rule 32(a)(3)(D), Hawaii Rules of Civil Procedure, where the offering party has been unable to secure the witness' presence at trial by subpoena.

5. The admission into evidence of a deposition of an unavailable witness does not deprive the non-offering party of the right of cross-examination where he received notice of the taking of the deposition but declined to attend.

6. Where appellant raises as error the admission of evidence, he must show that the trial court abused its discretion in admitting it.

7. Questions of negligence and proximate cause are not ordinarily susceptible of summary adjudication and where the evidence is conflicting, the trial court does not err in denying plaintiff's motion for directed verdict.

8. Where the jury in its verdict found plaintiff to be 100% negligent in causing his own injuries, the appellate court will not address any error by the trial court in granting defendants' motion for directed verdict as to "punitive damages," as the issue is rendered moot by the verdict.

9. The trial court does not err where it gives an instruction that is a correct statement of the law and which does not render the instructions as a whole prejudicially insufficient, erroneous, inconsistent or misleading.

10. Where there is conflicting evidence on issues of fact and the matter was submitted to the jury, a motion for judgment notwithstanding verdict or new trial is properly denied.

Joseph A. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for plaintiffs-appellants.

Robert P. Richards, Honolulu (Walter Davis and Ashley K. Fenton, Honolulu, on the brief; Davis, Playdon, Reid & Richards, Honolulu, of counsel), for defendants-appellees Robert's Hawaii Tour, Inc. and James T. Taba.

Wray H. Kondo, Honolulu (James Kawashima and J. Douglas Ing, Honolulu, with him on the brief; Kobayashi, Watanabe, Sugita & Kawashima, Honolulu, of counsel), for defendants-appellees Sakurais.

Before HEEN, Acting C.J., TANAKA, J., and ACOBA, Circuit Judge, in place of BURNS, C.J., disqualified.

HEEN, Judge.

This is an appeal by plaintiff Yolanda Johnson (plaintiff), individually and as Guardian Prochein Ami for Harry L. Galdeira (Galdeira), from an adverse jury verdict and judgment entered on July 14, 1980. For the reasons set forth below, we affirm.

Plaintiff asserts the following errors: (1) bifurcation of the trial into liability and damages issues and the denial of her motion for mistrial based on that bifurcation, (2) rulings on evidence, (3) rulings on matters of law, (4) rulings on proffered instructions, (5) use of a special verdict form, and (6) denial of her motion for judgment notwithstanding the verdict.

The pertinent facts are as follows. On June 30, 1979, Galdeira and Eddie Jesus (Jesus) were waiting at a bus stop in Kailua, Oahu, for a bus to take them to the Honolulu airport. Galdeira was drinking a beer. They saw John Sakurai (Sakurai) and Neldon Shigeo Marumoto (Marumoto) drive past in a pickup truck and called out to them. Galdeira and Jesus spoke to Sakurai and he agreed to take them to the airport. The group first stopped off at a gas station where they purchased gas and picked up Webster Leong. They then stopped at a liquor store to purchase a six-pack of beer before proceeding on towards the airport by way of the Wilson Tunnel to Nimitz Highway. Galdeira and Jesus rode in the bed of the truck. At Nimitz Highway, Sakurai made a wrong turn and proceeded in a diamond head (easterly) direction instead of in an ewa (westerly) direction.

At that time, a bus owned by Robert's Hawaii Tour, Inc. (Robert's) and driven by defendant James T. Taba (Taba) was travelling in the lane next to the pickup. After travelling a couple of blocks, Galdeira and Jesus attempted to tell Sakurai that he was going in the wrong direction. In doing so, Galdeira either knelt near or sat atop the right side rail of the truck bed with his head extending towards the passenger window. Thereupon, Sakurai attempted to change to the left traffic lane and Galdeira fell out of the truck. Galdeira managed to hang onto the rail of the truck for a few seconds, but his foot slipped under the rear tire of the pickup and he fell to the pavement. At that point, the bus ran over his left leg.

Prior to trial, the lower court granted the defendants' motion to bifurcate the action into separate trials on liability and damages. Robert's pre-trial motion for summary judgment on the issue of punitive damages was orally granted on June 19, 1980, and a written order was entered on July 1, 1980. Trial commenced on June 23, 1980.

Prior to the close of the evidence, Taba, Robert's and Sakurai moved for directed verdicts. These motions were denied. Plaintiff's motion for directed verdict as to liability was denied. Taba and Sakurai then moved for a directed verdict as to punitive damages and it was granted. ¹ On June 26, 1980, the jury returned a verdict finding none of the defendants negligent and Galdeira 100% negligent. On July 16, 1980, plaintiff filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial. This was denied by an order filed August 19, 1980. A timely appeal followed.

I. BIFURCATION

Plaintiff raises several issues on appeal relating to bifurcation. The issues break down into two basic questions: (A) did the court err in granting the motion to bifurcate, and (B) did the court err in refusing to grant a mistrial based on the prejudicial effect of the bifurcation? We find no error.

A.

Plaintiff has failed to order and designate the transcript of the hearing on the motion to bifurcate as part of the appellate record.

Rule 75(b) of the Hawaii Rules of Civil Procedure (HRCP) (1980, as amended) states that, "Within 10 days after filing the notice of appeal, the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record." In State v. Goers, 61 Haw. 198, 600 P.2d 1142 (1979), our supreme court held that since appellant had failed to include the transcript of a lower court hearing in the record on appeal, there was no basis on which the lower court's findings could be reversed. Also, in State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964), the supreme court stated that an appellant must furnish to the appellate court a sufficient record to positively show the alleged error. See also Marn v. McReynolds, 44 Haw. 655, 361 P.2d 383 (1961). Other courts have held that the failure of an appellant to designate the transcript of a lower court hearing as part of the record on appeal is cause for dismissal of the appeal or affirmation of the lower court decision. D & M Adjustment Co. v. Takahashi, 474 P.2d 184 (Colo.App.1970); Yetter v. Kennedy, 175 Mont. 1, 571 P.2d 1152 (Mont.1977); Nicklau v. People's State Bank, 459 P.2d 853 (Okl.1969); Huckaby v. Newell, 16 Or.App. 581, 519 P.2d 1290 (1974); Nix v. Chambers, 524 P.2d 589 (Wyo.1974). We find that plaintiff's failure to order and designate the transcript as part of the appellate record is fatal to this issue on appeal. ² See Hawaiian Trust Co., v. Cowan, 4 Haw.App. 166, 663 P.2d 634 (1983).

B.

A motion for mistrial is directed to the discretion of the trial court. 76 Am.Jur.2d Trial § 1073 (1975); Peters v. Benson, 425 P.2d 149 (Alaska 1967); Hernandez v. State, 132 Ariz. 561, 647 P.2d 1159 (Ariz.App.1982); Watkins and Faber v. Whiteley, 592 P.2d 613 (Utah 1979); Vern J. Oja and Associates v. Washington Park Towers, Inc., 15 Wash.App. 356, 549 P.2d 63, aff'd, 89 Wash.2d 72, 569 P.2d 1141 (1976). As in all actions involving discretion, the trial court will not be overturned on appeal absent an abuse thereof. Appellant must show that the trial court's decision "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Friedrich v. Department of Transportation, 60 Haw. 32, 586 P.2d 1037 (1978); Title Guaranty Escrow Services, Inc. v. Powley, 2 Haw.App. 265, 630 P.2d 642 (1981); GLA, Inc. v. Spengler, 1 Haw.App. 647, 623 P.2d 1283 (1981).

Plaintiff contends that the bifurcation prevented her from introducing into evidence a photograph of a scar on Galdeira's leg, which she argues tended to prove that the front tires of the bus ran over the leg. Plaintiff asserts that the photograph would have proved that the bus was partly in the same traffic lane as the truck at the time Galdeira was run over. The court ruled that this was evidence of damages and therefore, inadmissible in the liability portion of the trial. The court also denied plaintiff's motion for mistrial based on the court's ruling.

We find no abuse of discretion by the court in rejecting the evidence or in denying the motion for mistrial. While the photograph might...