Lima v. Tomasa

• Decision Date: 18 April 1958
• Docket Number: No. 3087.,3087.
• Citation: 42 Haw. 478
• Court: Hawaii Supreme Court
• Parties: ELAINE LIMA v. DAVID J. TOMASA.

42 Haw. 478

ELAINE LIMA

v.DAVID J. TOMASA.

No. 3087.

Supreme Court of the Territory of Hawai‘i.

Argued February 28, 1958.

Decided April 18, 1958.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. CARRICK H. BUCK, JUDGE.

Syllabus by the Court

On decisions rendered after the adoption of Hawaii Rules of Civil Procedure, Rule 52 (a) of the rules applies, and not R. L. H. 1945, § 10107.

In the findings of fact under H. R. C. P., Rule 52 (a), over-elaboration of detail or particularization of facts is not required. The trial court need only make brief, definite, pertinent findings upon contested matters.

A judgment may be vacated and the case remanded for further findings if the findings are not sufficiently definite for a clear understanding of the basis of the decision. Reversal and remand are unnecessary if the decision contains an adequate discussion of the major factual issues, which leaves no doubt as to the facts upon which the trial court based its decision.

The trial court's findings of fact may not be set aside unless clearly erroneous. Due regard must be given to the opportunity of the trial court to judge of the credibility of witnesses. (H. R. C. P., Rule 52 [a])

This court will not disturb the determination of the trial court respecting the amount of general damages unless it appears that the court acted with prejudice and passion and the award is so excessive as to shock the moral sense.Daniel H. Case ( Pratt, Tavares & Cassidy with him on the briefs) for appellant.

Henry T. Hirai ( Mirikitani & Hirai 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 judgment in favor of the plaintiff in a jury-waived action for damages suffered in an automobile accident. Judgment was for $5,221, being $118 for medical expenses, $564 for loss of earnings, $4,500 for general damages, and $39 for costs of court.

Defendant's objections to the judgment are set forth in his specifications of error as follows:

“1. That the trial court erred in failing to state reasons for finding that plaintiff was not contributorily negligent.

“2. That the trial court erred in its award to plaintiff of special damages for loss of earnings because such award was contrary to evidence.

“3. That the trial court erred in its award to plaintiff of general damages because such award was based on findings which were contrary to the evidence.”

Trial was held after the adoption of Hawaii Rules of Civil Procedure. Thus, H. R. C. P., Rule 52 (a), instead of R. L. H. 1945, § 10107, applies. (Hawaii Builders Supply Co., Ltd., v. Kaneta, 42 Haw. 111; Leslie v. Gonsalves, 42 Haw. 169; Lum v. Stevens, 42 Haw. 286) Defendant contends that even if the new rule applies, the finding of the trial court that the facts in evidence do not establish contributory negligence on the part of plaintiff is insufficient to satisfy the requirements of the rule.

Under the rule, a bare statement of ultimate conclusion is insufficient. (Tugaeff v. Tugaeff, 42 Haw. 455) However, the rule does not require over-elaboration of detail or particularization of facts. The trial court “need only make brief, definite, pertinent findings and conclusions upon the contested matters.” (Advisory Committee of the United States Supreme Court on Rules for Civil Procedure, Note to 1948 Amendment of Rule 52 [a]; Moore's Federal Practice; 2d Ed., § 52.01 [5]; Barron and Holtzoff, FederalPractice and Procedure, Appendix, Advisory Committee Notes to Rule 52) This court may vacate a judgment and remand the case for further findings if the findings are not sufficiently definite for a clear understanding of the basis of the decision. But reversal and remand are unnecessary if the decision contains an adequate discussion of the major factual issues, which leaves no doubt as to the facts upon which the trial court based its decision. (Huszar v. Cincinnati Chemical Works, Inc., 172 F. [2d] 6)

In this case, the trial court filed a decision which contains the following statement of the circumstances under which the plaintiff was injured: “At about eleven or eleven-thirty p.m. defendant left the house, seating himself in his car behind the wheel and closing the door. Plaintiff followed him, standing outside the car beside him. At this time plaintiff was holding the young child of Mrs. Ching on her left arm. On defendant's again refusing to give plaintiff the keys to her car or to tell her where they were, plaintiff reached into the car and seized defendant by his shirt, tearing it. Plaintiff then stepped back a few steps to give the baby to Mrs. Ching, at which moment defendant put his car in motion, turning the wheels abruptly to the left. Plaintiff endeavored to flatten herself against the side of her parked car, but the end of the front bumper on defendant's car pinned plaintiff's leg against her car, crushing and bruising an area from above to below the knee.” We think that the statement, particularly the portion thereof which states that the plaintiff endeavored to flatten herself against the side of her parked car, makes the basis for the trial court's finding concerning contributory negligence sufficiently clear. This case is unlike Leslie v. Gonsalves, supra, and Tugaeff v. Tugaeff, supra, where only findings of ultimate facts were set forth without a discussion of subsidiary facts on which such findings were predicated.

Under the rule, the trial court's findings of fact may not be set aside unless clearly erroneous. The rule also enjoins this court to give due regard to the opportunity of the trial court to judge of the credibility of the witnesses.

We cannot say that the trial court's findings regarding loss of wages and general damages were clearly erroneous.

The finding regarding loss of wages was based on the plaintiff's testimony that she had an average net earning of $6 per day before the injury and that she lost 94 working days because of the injury.

The defendant argues that because the plaintiff testified on cross-examination that her earnings varied between $4 and $6 per day depending on whether business was good or bad, and because of the self-serving element of the testimony, the trial court would have had more reason to award the lowest claimed earnings of $4 per day. It is not accurate to say that the plaintiff testified that her earnings varied between $4 and $6. The defendant's attorney asked the plaintiff on cross-examination: “You said that your earnings as a driver varied from about four dollars to approximately six dollars, and occasionally a little bit higher, depending on business, is that correct?” (Emphasis supplied) To this, the plaintiff answered: “That's right.”

The defendant also argues that the trial court erred in finding that the plaintiff lost 94 working days on the basis of six working days per week because her testimony showed that she was normally not steadily employed. However, the defendant does not deny that the plaintiff's testimony showed that she worked six days per week immediately before the accident.

With regard to general...