Levy v. Kimball

• Decision Date: 16 February 1970
• Docket Number: No. 4872,4872
• Citation: 51 Haw. 540,465 P.2d 580
• Parties: Esther LEVY v. George P. KIMBALL, Trustee of the Estate of Clifford Kimball, Deceased, dba the Halekulani Hotel, et al.
• Court: Hawaii Supreme Court

Page 580

465 P.2d 580

51 Haw. 540

Esther LEVY v. George P. KIMBALL, Trustee of the Estate of Clifford Kimball, Deceased, dba the Halekulani Hotel, et al.

No. 4872.

Supreme Court of Hawai'i.

Feb. 16, 1970.

Syllabus by the Court

1. Depositions and transcript of testimony at a former trial should be admitted into evidence when witness is unavailable at the trial based on the principle of necessity.

2. Where it was shown that the plaintiff was without our jurisdiction the trial court properly and correctly admitted into evidence the transcript of the plaintiff's testimony given in the first trial.

3. In suits against the state, HRS § 662-12 authorizes the court to award attorney's fees in addition to the award of compensatory damages, providing it does not exceed twenty per cent of the amount recovered.

4. Where a legislative body adopts a law of another jurisdiction all changes in words and phraseology will be presumed to have been made deliberately and with a purpose to limit, qualify or enlarge the adopted law to the extent that the changes in words and phrases imply.

5. Where the legislature has failed to express its intent, the court will not usurp legislative power and enter into the legislative field.

6. The general law is that a statute should be so interpreted to give it effect; and that in the construction of statutes, we must start with the presumption that our legislature intended to enact an effective law, and it is not to be presumed that legislation is a vain effort, or a nullity.

7. It is the law of this jurisdiction that attorney's fees are not taxable as costs or damages in tort actions to losing parties in the absence of a statute.

8. In claims against the state, HRS § 662-9, which allows court and fees as set by law, except attorney's fees, to the successful claimant, is not inconsistent with HRS § 662-12, which specifically applies to attorney's fees.

William H. Yim, Deputy Atty. Gen., State of Hawaii, Honolulu, (Bertram T. Kanbara, Atty. Gen., Ronald Y. Amemiya, Donald K. O. Wong and Walton D. Y. Hong, Deputy Attys. Gen., on the briefs) for defendant-appellant.

Stuart M. Cowan (Greenstein & Cowan, Honolulu, of counsel) for plaintiffs-appellees.

Before RICHARDSON, C. J., MARUMOTO and ABE, JJ., M. DOI, Circuit Judge, for LEVINSON, J., disqualified, and KABUTAN, Circuit Judge, for KOBAYASHI, J., disqualified.

ABE, Justice.

The present status of this suit, though it originally involved several defendants, is a tort claim for damages brought by plaintiff Levy against the State of Howaii under the State Tort Liability Act, HRS Ch. 662.

This appeal is from the second trial ¹ where the question of damages was the sole issue. The trial judge, after a trial without a jury, entered a judgment against the State for the total sum of $64,866.41, consisting of general damages in the sum of $50,500, special damages $3,555.34, and attorneys' fees $10,811.07.

I. Admission of Transcript

The first point of appeal is that the trial court erred in admitting into evidence the transcript of the plaintiff's testimony in the first trial.

The complaint alleged that the plaintiff was a resident of New York State. The record shows that at the time of the second trial she was still residing in New York State, and that she had not come to Honolulu for the trial.

On the issue as to under what circumstances a transcript of testimony of a former trial may be admitted into evidence, in Tsuruda v. Farm, 18 Haw. 434 (1907), we held that depositions and transcript of testimonies at a former trial should be admitted into evidence when witnesses are unavailable at the trial based on the principle of necessity. And on the question of unavailability of a witness the court said at page 438 that it:

'may result from his death, his absence from the jurisdiction, his disappearance and inability to find him, his illness, infirmity, age or official duty preventing his attendance, insanity, loss of memory, speech or sight or disqualification by infamy. The unavailability of the witness for purposes of testifying, if shown to the satisfaction of the trial court and with proper limitations to guard against collusion or surprise or the giving of undue advantage avoidable by continuance, is generally sufficient in civil, if not in criminal, cases to admit evidence of his former testimony.'

Here the plaintiff was without our jurisdiction in New York State, of which state she was a resident at the time she was injured while visiting this State as a tourist. In a civil case, we believe a transcript of testimony of a witness at a former trial should be treated similarly as a deposition. In Kono v. Auer, 51 Haw. 273, 458 P.2d 661 (1969), we held that a deposition taken of defendant who had moved to Canada should have been admitted into evidence under the provisions of H.R.C.P. Rule 26(d)(3). Therefore, we hold that upon the showing that the plaintiff was without our jurisdiction the trial court properly and correctly admitted into evidence the transcript of her testimony given in the first trial.

II. Awarding of Attorney's Fees Under State Tort Liability Act

The State contends that the trial court erred in awarding attorneys' fees of $10,811.07 over and above the sum awarded as general and special damages, and that attorneys' fees should be paid out of the sum of $54,055.34 and not in addition thereto.

HRS § 662-12 provides:

'The court rendering a judgment for the plaintiff pursuant to this chapter * * * may, as a part of such judgment, award, or settlement, determine and allow reasonable attorney's fees which shall not, however, exceed twenty per cent of the amount recovered.'

The language of the statute indicates that the court may award attorney's fees in addition to the award of compensatory damages, providing it does not exceed twenty per cent of the amount recovered. There is nothing in the statute requiring that the amount recovered be reduced by the amount of attorney's fees. Rather the statute says that the amount recovered is the figure by which attorney's fees are to be computed and that the attorney's fees so computed may be awarded by the court as a part of the judgment.

The State draws our attention to the provisions of the Federal Tort Claims Act. 28 U.S.C. § 2678, Chapter 171:

'The court rendering a judgment for the plaintiff pursuant to section 1346(b) of this title * * * may, as a part of such judgment, award, or settlement, determine and allow reasonable attorneys fees, which, if the recovery is $500 or more, shall not exceed * * * 20 per centum of the amount recovered under section 1346(b) of this title, to be paid out of but not in addition to the amount of judgment, award or settlement recovered, to the attorneys representing the claimant.'

The italicized portions represent the Hawaii version of the statute. It is clear that the Hawaii statute is patterned after the federal statute, as contended by both parties. Our statute omits the phrase 'to be paid out of but not in addition to the amount of judgment, award, or settlement recovered, to the attorneys representing the claimant.' The legislative history of HRS § 662 reveals no discussion whatsoever on this omission. However, because the Hawaii statute so clearly follows the federal statute, such omission must be deemed intentional. In Helbush v. Mitchell, 34 Haw. 639, 648 (1938), it is stated:

'It is a generally accepted rule of statutory construction that where the legislative body adopts a law of another State all changes in words and phraseology will be presumed to have been made deliberately and with a purpose to limit, qualify or enlarge the adopted law to the extent that the changes in words and phrases imply. * * * Moreover where portions of the statute adopted are omitted the difference in phraseology between the statute adopted and the local statute as ultimately enacted, may have special interpretative significance. * * * Where, as here, the legislative body adopts...