Lim v. Motor Supply, Limited

• Decision Date: 10 July 1961
• Docket Number: No. 4131,4131
• Citation: 45 Haw. 111,91 A.L.R.2d 1067,364 P.2d 38
• Parties: , 45 Haw. 198, 91 A.L.R.2d 1067 David S. LIM v. MOTOR SUPPLY, LTD.
• Court: Hawaii Supreme Court

Page 38

364 P.2d 38

45 Haw. 111, 45 Haw. 198, 91 A.L.R.2d 1067

David S. LIM v. MOTOR SUPPLY, LTD.

No. 4131.

Supreme Court of Hawai'i.

July 10, 1961.

Rehearing Denied July 28, 1961.

Syllabus by the Court

1. Upon an appeal from a District Magistrate on points of law (R.L.H.1955, § 208-1) a point of law appearing from a written decision of the magistrate, signed by him and appended to his certificate of appeal as part of the certified record, will be deemed incorporated in the certificate of appeal even though not incorporated therein by express reference to the decision in the certificate. However, if the points of law are not stated in the certificate of appeal or in a written decision, it is essential that there be an express reference in the certificate of appeal to the paper in which the points of law are to be found.

2. An employee was hired as a department manager for an indefinite term. His contract of employment stated that the usual company policy of annual vacations of two weeks would apply. After several years, he was discharged for the convenience of the employer of a half month's notice. At the time of his discharge he had accoumulated vacation time. Upon consideration of the particular employment, it is held that he has no right to pay for the accumulated vacation time.

3. The general principle that, in the absence of an applicable statute, agreement or custom, an employee cannot collect for overtime work which is of the same nature as the work contracted for, applies to lost vacation time accumulated by a department manager whose contract of employment did not limit the numbers of hours required to be devoted to the work.

4. Though an employee, a department manager, was privileged to accumulate vacation time, this in itself did not constitute a guarantee by the employer that the employee would be enabled to take vacation time which he allowed to accumulate, and upon the employee being discharged by reason of an administrative reorganization of the employer's business, the employer was not required to fix the date of termination of the employee's employment far enough off to permit him to take his accumulated vacation in addition to current vacation which he did receive.

Tobias C. Tolzmann, Honolulu (Anderson, Wrenn & Jenks, Honolulu, on the briefs), for appellant.

Frank W. C. Loo and George W. T. Loo, Honolulu (Loo & Loo, Honolulu, on the briefs), for respondent.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ, and LEWIS, JJ., and R. B. JAMIESON, Circuit Judge, Assigned by Reason of Vacancy.

LEWIS, Justice.

Plaintiff-appellee, also referred to herein as plaintiff, filed his complaint in the District Court of Honolulu, alleging that under an employment contract entered into December 21, 1951 he was to receive annual vacations of two weeks with pay, and that he was entitled to $1067.27 for the annual vacations which, at the time his employment ceased, he had not been able to take.

The magistrate gave judgment for plaintiff on March 20, 1959 for $836.51 with interest and costs, and certified the judgment to this court on a printed form which concluded:

'* * * that an appeal from said judgment was duly noted by the defendant above-named to the Supreme Court of the Territory of Hawaii on Points of Law and that said appeal has been duly perfected.

'A full and correct copy of my record in said case is hereto attached.'

Included in the attached record was a written decision of the magistrate, also dated March 20, 1959, from which it appears that plaintiff was employed by defendant for an indefinite period as a department manager at a monthly salary of $500 plus a commission on net volume over a certain figure. The contract of employment was in the form of a letter by which it was agreed that: 'The usual company policy of annual vacations of two weeks duration will apply * * *.' Plaintiff worked up to August 15, 1956, when he was discharged to the convenience of the employer. He was paid up to the end of August 1956, and the magistrate concluded that the payment of salary for the last half of August 1956, during which time no work was performed, represented an opportunity to take vacation during that period, the magistrate reducing plaintiff's demand accordingly. However, the magistrate allowed the claim for vacation accumulated in previous years, from the inception of the employment January 1, 1952.

The first questions which confront us are jurisdictional and procedural. R.L.H.1955, § 208-1, provides in pertinent part:

'* * * any appeal solely upon points of law from a decision of a district magistrate shall be so stated in the notice of appeal, and such appeal upon points of law may be made * * * to the supreme court, at the option of the party appealing whenever the party appealing shall file notice of his appeal * * * within ten days * * *.'

The same section provides further:

'Within a reasonable time after an appeal has been perfected from a decision of a district magistrate * * * to the supreme court, it shall be incumbent upon such district magistrate to make a return thereof * * *.'

Rule 13 of the rules of this court provides:

'District magistrates, in all cases in which appeals have been taken and perfected from them to the supreme court, shall forward without delay to the clerk of the supreme court a certificate of appeal, stating the nature of the action, the decision made and the points of law upon which the appeal is taken; also, the summons or warrant, all vouchers and exhibits filed, or certified copies thereof, and a statement of the facts involved; * * *'.

In the present case the notice of appeal was filed March 30, 1959 and the return made by the magistrate, dated May 22, 1959, was filed May 25, 1959. The following questions were raised by the court sua sponte upon the argument of the case.

Do we have before us one or more points of law presented in such manner as to enable us to proceed to the decision thereof? If not, may the appeal still be perfected? If the appeal still could be perfected, should the court so permit?

Supplemental memoranda were filed and defendant-appellant presented a motion for an order directing the magistrate to transmit a supplemental certificate, which was argued. Defendant-appellant's position is that in view of the documents attached to and attested by the magistrate's certificate, particularly the written decision, the point of law involved in the appeal sufficiently appears and there is no serious defect in the certificate of appeal; further, that the defect if any is not jurisdictional in any event, and the court should be liberal in permitting a supplemental certificate. Plaintiff-appellee is of the view that there is a jurisdictional defect in the magistrate's certificate and the appeal should be dismissed, but if the court has jurisdiction it should take the point of law from the magistrate's written decision or order a supplemental certificate. In no event, plaintiff-appellee argues, should the court take the point of law from the record as a whole.

We agree with plaintiff-appellee that the point or points of law upon which a direct appeal is taken to this court under R.L.H.1955, § 208-1, must appear from the magistrate's certificate of appeal and cannot be gleaned from the record as a whole. The King v. Lee Choy, 1887, 7 Haw. 62; Humuula Sheep Station v. Ahlo, 1888, 7 Haw. 213; Territory v. Schaefer, 1908, 19 Haw. 214, 218; Murphy v. McKay, 1916, 23 Haw. 173; Territory v. Do Rego, 1928, 30 Haw. 560, 564; cf., Afong v. Kale, 1889, 7 Haw. 520, 521, characterized in Murphys as obiter dicta insofar as it was suggested in Afong that the points of law might appear on the minutes of the magistrate; see also as to the indulgence to be shown in determining what the certified point is, if not clear, Humburg v. Namura, 1901, 13 Haw. 702; Martinez v. Parado, 1939, 35 Haw. 149, 152.

In none of the above cases was there a written decision signed by the magistrate. The significance of a written decision appears in Castle v. Bowler, 1891, 8 Haw. 366. Summarizing the earlier cases of The King v. Lee Choy, supra, Humuula Sheep Station v. Ahlo, supra, and Wenner & Co. v. Lindsay, 1887, 7 Haw. 119, and without distinguishing between appeals on points of law from a police court, as in the first two of these cases, or from a Justice of the Supreme Court sitting alone as an intermediary court, as in Wenner and in the case then before the court, the Castle case settled the practice as follows:

'In The King v. Lee Choy, 7 Haw. 62, we held that an appeal from a Police or District Court to the Supreme Court in banco, upon questions of law, must comprise a certificate signed by the Justice, of the points of law upon which the appeal is taken, failing which the Court has nothing to consider. This was affirmed in Humuula Sheep Station v. Ahlo, 7 Haw. 213.

'In Wenner v. Lindsay, 7 Haw. 119, we held that the certificate of appeal from a Justice of the Supreme Court should be signed by the Justice, and should state whether the appeal is to the Supreme Court in banco on points of law, or an appeal for trial on the facts. This decision also lays down that when the decision appealed from is written, and the appeal is taken on points of law therein stated or decided, the points of law need not be re-written (in the certificate of appeal). If the decision be oral, the points of law appealed from should be reduced to writing by the appellant, signed by the Justice, and appended to the certificate of appeal.

'These decisions should settle the practice, and are as authoritative as if made a Rule of Court.' 8 Haw. at page 367.

Upon comparison of the above with Wenner it appears that in settling the practice in Castle the court advisedly omitted the qualifying words underscored in the following quotation from Wenner: 'Where the decision * * * is in writing * * * it is not necessary to re-write the points, but the certificate may state that the appeal is taken from the...