Kamali v. Hawaiian Elec. Co., Inc.

Decision Date19 December 1972
Docket NumberNo. 5123,5123
PartiesJoseph A. KAMALI, Plaintiff-Appellee, v. HAWAIIAN ELECTRIC COMPANY, INC., a Hawaii corporation, Defendant and Third-Party Plaintiff-Appellant, v. TANJI HOUSE MOVERS, LTD. and Norman G. Tagata, Third-Party Defendants-Appellees.
CourtHawaii Supreme Court

Syllabus by the Court

1. Failure of a party to object to incompetent evidence does not preclude the trial court from excluding such evidence in the interests of justice on its own motion, absent any prejudice to the other party.

2. HRS § 386-5 precludes a defendant in a tort action from obtaining contribution from an employer on the theory that the employer was a joint tortfeasor.

3. An employer covered by HRS § 386-5 may be liable for indemnity based on a breach of an indemnity agreement.

4. Contracts of indemnity are strictly construed particularly where the indemnitee claims that it should be held harmless from liability for its own negligence.

Gary N. Hagerman, Honolulu (Jenks, Kidwell, Goodsill & Anderson, Honolulu, of counsel), for defendant and third-party plaintiff-appellant.

Clarence Y. Shimamura, Honolulu, for plaintiff-appellee.

Albert Gould, Honolulu (Cobb & Gould, Honolulu, of counsel), for third-party defendants-appellees.

Before MARUMOTO, Acting C. J., ABE, LEVINSON and KOBAYASHI, JJ., and Circuit Judge LANHAM in place of RICHARDSON, C. J., disqualified.


This is an appeal by Hawaiian Electric Company, Inc., the defendant and third-party-plaintiff in this case, from a jury verdict rendered against it and in favor of Joseph A. Kamali, the plaintiff-appellee, and Tanji House Movers, Ltd., the third-party-defendant-appellee.


On January 11, 1966, Tanji House Movers, Ltd. (hereinafter referred to as Tanji), was engaged in moving a house down Hekaha Street in Honolulu, Hawaii. On January 11 and 12, 1966, Tanji procured a house moving permit from the Joint Pole Committee as required by Section 15-21.12(3)(d) of the Traffic Code of the City and County of Honolulu (1969). The plaintiff, Joseph A. Kamali (hereinafter referred to as Kamali), was an employee of Tanji and was stationed on the top of the house to watch for low hanging wires or other obstructions.

The defendant and third-party-plaintiff, Hawaiian Electric Company, Inc. (hereinafter referred to as Hawaiian Electric), owned and maintained three 12,000 volt uninsulated electrical wires and a common neutral wire which crossed Hekaha Street.

While the house was moving down Hekaha Street, Kamali touched the above mentioned wires and suffered severe electrical burns. The above mentioned wires were two and three feet lower than the height requirement prescribed by the Public Utilities Commission.

Kamali brought action against Hawaiian Electric for the negligent construction and maintenance of its electric wires. Hawaiian Electric then filed a third-party complaint against Tanji and Norman G. Tagata (the driver of the truck which pulled the house and flat bed tailer).

Hawaiian Electric has raised a number of issues on appeal but we believe only the following merit consideration:

1. Did the trial court err in partially striking portions of Hawaiian Electric's answers to Kamali's interrogatories after 2. Did the trial court err in dismissing Hawaiian Electric's claim for indemnity against Tanji? Hawaiian Electric urges two grounds:

they had already been admitted in evidence?

a. Indemnity based upon Tanji's independent duty to Hawaiian Electric; and

b. Indemnity based upon express contract between Hawaiian Electric and Tanji.

3. Did the trial court err in submitting the question of proximate cause to the jury?

The trial court ruled that the Joint Pole permit did not constitute an indemnity contract as a matter of law and that Tanji was not liable thereunder. The jury returned a special verdict in the amount of $150,000 in favor of Kamali and specifically found:

(1) That Hawaiian Electric was negligent and that its negligence was a proximate cause of the accident; and

(2) That Tanji was negligent toward Kamali but its negligence was not a proximate cause of the accident.


We agree with Kamali that the rules for admission of evidence apply to written answers to interrogatories when they are sought to be introduced at trial. However, Kamali claims that the exhibits attached and referred to by Hawaiian Electric's answers to Kamali's interrogatories on July 9, 1968 (hereinafter referred to as answers) were not part of the answers. Kamali alleges that the subsequent admission of the answers into evidence at trial did not include the exhibits to the answers.

Prior to the admission of the answers, Kamali was informed by Hawaiian Electric that the exhibits attached thereto were part of the answers and would go into evidence. Kamali did not object when the court ruled that the answers of July 9, 1968, were already in evidence and that all exhibits thereto were part of the answers and also in evidence. Kamali only later objected to portions of Exhibit 5 to Hawaiian Electric's answers on the basis that they were not part of the answers previously admitted in evidence, and that they were incompetent as hearsay. However, the trial court overruled Kamali's objections.

We hold that the exhibits attached and referred to in Hawaiian Electric's answers to interrogatories were part of such answers and admitted in evidence.

The question remains, however, whether the trial court, on its own motion, may partially strike evidence which has already been admitted without objection. It was admitted by the parties that the portions stricken constituted hearsay statements. Professor McCormick in his treatise on evidence, Handbook of the Law of Evidence (1972), states in § 55, p. 129:

(A) party's failure to object usually waives the objection and precludes the party from complaining if the evidence is let in. But the failure by the party does not of itself preclude the trial judge from excluding the evidence on his own motion if . . . the evidence is incompetent, and he considers that the interests of justice require the exclusion of the testimony.

Here, the stricken evidence did not materially prejudice Hawaiian Electric as the exhibits were neither read to the jury nor did they go to the jury room. The fact that the evidence stricken was helpful to Hawaiian Electric and detrimental to Kamali is not relevant.

Thus, we are of the opinion that the trial court acted within its discretion in striking the hearsay statements already admitted into evidence without objection.


Initially, it should be noted that though Hawaiian Electric's third-party-complaint is couched in terms of indemnity, portions of the complaint are in substance claims for contribution as they are premised on the assumption that, if Tanji and Hawaiian Electric are joint tortfeasors, then Tanji was primarily negligent and Hawaiian Electric was secondarily negligent. Implicit here is the allegation that Tanji's negligence was a proximate cause of the accident and that Tanji is liable in tort despite the exclusive liability provisions of HRS § 386-5 which provides:

§ 386-5 Exclusiveness of right to compensation. The rights and remedies herein granted to an employee or his dependents on account of a work injury suffered by him shall exclude all other liability of the employer to the employee, his legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer, at common law or otherwise, on account of the injury. (Emphasis added.)

This court has not in the past considered the possibility of contribution under the terms of HRS § 386-5. The great majority of jurisdictions having exclusive liability provisions exactly like or very similar to HRS § 386-5 have held that an employer whose concurring negligence contributed to an employee's injury cannot be sued or joined by a defendant-third-party-plaintiff as a joint tortfeasor. Larson, The Law of Workmen's Compensation, § 76.21, p. 235 (1970).

This position is compelling, particularly in light of a clear expression of legislative intent to absolve the employer of all liability save that imposed by statute. The purpose of such legislation is to achieve certainty-certainty that an employee will be compensated for all work injuries regardless of his negligence or fault; and certainty with regard to the amount for which the employer shall be liable. The effect is a compromise where the chance that an employee may not recover at all and the chance that an employer will be charged with an excessive judgment are eliminated.

The position of the majority of jurisdictions is that to allow contribution in the face of the exclusive liability provision of the Workmen's Compensation Law would be to strip the employer of the very protections intended by the statute.

However, a minority of jurisdictions have adopted a theory of limited contribution against an employer which does not subvert the policy of the Workmen's Compensation Law. Larson, The Law of Workmen's Compensation, § 76.22, p. 238 (1970). Basic to this position is the proposition that it is unfair for one joint tortfeasor to bear the entire loss merely because the other joint tortfeasor is an employer. Since full contribution would obviously render an employer's protection illusory, limited contribution is allowed up to the amount for which the employer would have been liable under the Workmen's Compensation Law.

The policy underlying the Workmen's Compensation Law and the principles of contribution among joint tortfeasors were reconciled in Newport Air Park, Inc. v. United States, 293 F.Supp. 809 (D.R.I. 1968), where the court adopted the...

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