Luhi v. Honolulu Lodge No. 1, Modern Order of Phoenix

• Decision Date: 06 January 1931
• Docket Number: 1978.
• Citation: 31 Haw. 740
• Parties: MARY LUHI, A MINOR, BY MARIA K. LUHI, HER MOTHER AND NATURAL GUARDIAN, v. HONOLULU LODGE NO. 1 MODERN ORDER OF PHOENIX, AND COURT LUNALILO NO. 6600, ANCIENT ORDER OF FORESTERS FRIENDLY SOCIETY, ELEEMOSYNARY CORPORATIONS.
• Court: Hawaii Supreme Court

31 Haw. 740

MARY LUHI, A MINOR, BY MARIA K. LUHI, HER MOTHER AND NATURAL GUARDIAN, v. HONOLULU LODGE NO. 1 MODERN ORDER OF PHOENIX, AND COURT LUNALILO NO. 6600, ANCIENT ORDER OF FORESTERS FRIENDLY SOCIETY, ELEEMOSYNARY CORPORATIONS.

No. 1978.

Supreme Court of Territory of Hawai'i.

January 6, 1931

Submitted November 18, 1930.

EXCRETIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. A. M CRISTY, JUDGE.

Syllabus by the Court

In the trial of an action in tort for damages for injury to a third person alleged to have been proximately caused by negligence in the construction, maintenance and operation of a miniature railway by two defendant corporations, one of which was the lessor and the other of which was the lessee of said railway it is not error to admit evidence of the lease establishing such relationship, though said lease contains as one of its terms a provision that the lessee shall pay the lessor a premium for insurance protection to be obtained by the latter.

The owner of an amusement park is not relieved from the duty of exercising reasonable care in the construction, maintenance and operation of a miniature railway by leasing it to an independent contractor, especially when a general supervision of the property is retained.

A declaration in tort that the injury complained of was proximately caused by the negligence of defendant " eleemosynary corporations" is not demurrable on the ground of the nonliability of corporations of that kind when the declaration affirmatively shows that such tort did not arise in the course of work connected with any eleemosynary enterprise.

Upon a bill of exceptions submitted on briefs exceptions not argued in the briefs will be deemed to have been abandoned and will not be noticed.

Upon the evidence in this case held: motion for new trial on the ground of excessive damages properly overruled.

O P. Soares for plaintiff.

C. B. Dwight for Honolulu Lodge No. 1, Modern Order of Phoenix.

R. J. O'Brien for Court Lunalilo No. 6600, Ancient Order of Foresters, etc.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION

PARSONS J. (Perry, C. J., dissenting.)

This is an action in tort for damages for injuries to the plaintiff, alleged to have been proximately caused by the negligence of the two defendant corporations. The complaint in effect and among other things alleges that on January 2, 1928, the defendant corporation Court Lunalilo No. 6600, Ancient Order of Foresters Friendly Society, as owner, and the defendant corporation Honolulu Lodge No. 1, Modern Order of Phoenix, as lessee, of Waikiki Park, operated therein, through their agents and servants certain amusement devices, including among others a miniature railway known as the " dipper, " " well knowing that said dipper operated as aforesaid was a dangerous pastime device, " exposing passengers thereon to perils of which they might be ignorant. The complaint further alleges that the plaintiff, a minor, " on the said 2nd day of January, 1928, ignorant of all of the aforesaid dangers incident to said device, which was well known to the said defendants, was lawfully a passenger on said device, having paid the required amount of money for the privilege of a ride thereon, and while a passenger as aforesaid, and in the exercise of due care, upon said device, said device, operated by said defendants by their servants and agents, and operated by them in a negligent and careless manner, and without providing a safe device for plaintiff to hold on to, and without giving plaintiff any warning to guard against the perils incident to the violent motions of the device or any instructions relative to her conduct while a passenger thereon, and while making a sharp turn in the track, violently jerked and jolted and lurched and threw plaintiff with great force out of her seat and down a considerable distance to the ground, greatly injuring her in her head, neck, shoulders, arms and back, causing her severe bodily and mental suffering, and a shock to her nervous system, from which she has ever since suffered, and will suffer for a long time to come, causing her to expend large sums of money to effect a cure, and all to the damage of the plaintiff in the sum of ten thousand dollars." The complaint refers by way of recital to each defendant as an eleemosynary corporation.

The Court of Foresters demurred to the foregoing complaint upon grounds which are not before us upon said defendant's bill of exceptions. The Phoenix Lodge demurred generally and on the specific ground " that it affirmatively appears from said complaint that this defendant is an eleemosynary corporation and as such is not liable for the injuries complained of herein." Both demurrers were overruled and each defendant answered by general denial. After a trial upon the merits a verdict was found for the plaintiff and against the two defendants in the sum of $6000 and costs. Motions for new trial were made and denied, judgment was entered in conformity with the verdict, and the case is now before us upon each defendant's bill of exceptions. The Court of Foresters' bill contains ten exceptions, only two of which, namely numbers 1 and 6, are presented in its brief. The bill of the Phoenix Lodge contains eleven exceptions, one of which, number 10, was expressly withdrawn and four of which, namely numbers 1, 2, 4 and 11, are argued in its brief. The exceptions presented by the two defendants will be considered in the order in which they are above designated.

Exception number 1 of the Court of Foresters is thus set forth in its bill: " W. G. Bergin was sworn as a witness on behalf of the plaintiff, stated that he was a member of the defendant Modern Order of Phoenix and that the Phoenix Lodge were conducting a carnival in Honolulu the latter part of 1927 and the early part of 1928; that he was chairman of the carnival committee; that the Phoenix Lodge obtained the use of Waikiki Park from the defendant Foresters for the purpose of holding the carnival; that the Phoenix Lodge had a contract with the defendant Foresters to conduct a carnival; that he was unable to locate the contract; that he was familiar with the terms contained therein; whereupon the following occurred: ‘ Q. Can you outline briefly what those terms were? A. Well, they _____ the agreement read that we were to pay the Foresters two thousand dollars for the rental of the park, and also four hundred and fifty dollars for the insurance to protect us. Q. By the insurance what do you mean; what kind of insurance? Mr. O'Brien: We object to that on the ground it's incompetent, irrelevant and immaterial, if your honor please. The Court: Objection is overruled. Mr. O'Brien: Exception.’ "

Following the above exception the transcript shows the following questions and answers: " Mr. Soares: Q. What insurance do you refer to; what was the nature of the insurance? A. All liability, all public liabilities. Q. Public liability? A. For accidents. Q. And can you remember any other terms of the contract? A. No, I don't, unless that the _____ they agreed to cover us, that's all, for that sum. Q. That is, in consideration of the payment of $450_____. A. $450. Q._____ they would cover you against all public liability? A. Yes. Q. Arising out of accidents in your use of the park? A. Yes."

Under the foregoing exception counsel for the Foresters argues " that it was prejudicial error to admit the testimony of the plaintiff's witness that the defendant was insured against public liability for injuries growing out of accidents suffered by third persons." Other than as hereinabove quoted from the transcript there was no testimony that either defendant was insured against liability for accidents to third persons, or that a policy covering the Foresters was within the contemplation of the contracting parties. It is not shown that either defendant was prejudiced by the testimony. But even were the fact otherwise, prejudice alone could not be permitted to...