Lyon v. Bush

• Decision Date: 23 March 1966
• Docket Number: No. 4441,4441
• Citation: 49 Haw. 116,412 P.2d 662
• Parties: Barbara Jean LYON v. G. Fred BUSH, III.
• Court: Hawaii Supreme Court

Page 662

412 P.2d 662

49 Haw. 116

Barbara Jean LYON v. G. Fred BUSH, III.

No. 4441.

Supreme Court of Hawai'i.

March 23, 1966.

Syllabus by the Court

1. A breach of promise of marriage is a valid cause of action.

2. The verdict of a jury will not be set aside where there is more than a scintilla of substantial evidence to support its findings.

3. A general assignment of error which does not set out separately the particulars of each error intended to be urged is insufficient and does not call for consideration by this court under Rule 3(b)(4), Rules of the Supreme Court.

4. Under Rule 3(b)(3) which requires briefs on appeal to present a concise statement of the questions involved and the manner in which they are raised, the scope of appeal is limited to the points set forth in or necessarily suggested by the statement of questions involved.

5. Where the relationship between plaintiff and defendant was principally established through correspondence, letters and photographs will not be excluded on the grounds that they are of a salacious and reprehensible nature and may be prejudicial and inflammatory, when exclusion thereof would preclude proof of the nature of defendant's solicitation, enticement and persuasion which culminated in acts of seduction after the promise to marry.

6. Absent a statute or rule of court, non-evidentiary exhibits may not be used by the jury in its deliberations.

7. The jury's unauthorized use of a non-evidentiary exhibit is error, but not prejudicial error, when appellant actually benefited by the jury's use of the exhibit.

Sanford J. Langa, Wailuku (Crockett & Langa, Wailuku, on the brief), for appellant.

Ralph E. Corey, Honolulu (Clark & Corey, Honolulu, on the brief), for respondent.

CASSIDY, Acting C. J., WIRTZ, LEWIS and MIZUHA, JJ., and KING, Circuit Judge, assigned by reason of vacancy.

MIZUHA, Justice.

Plaintiff sued defendant for a breach of promise of marriage. The jury found in a special verdict 'one, that the plaintiff and defendant did enter into a contract to marry; two, that the defendant did breach said contract to marry; three, that defendant did seduce the plaintiff.' The jury awarded plaintiff $5,806.50 'as and for actual or compensatory damages,' and awarded plaintiff $10,000.00 'as and for exemplary or punitive damages.' Defendant appeals from the judgment.

First, defendant argues that the common law action for a breach of promise of marriage 'as applied to present day conditions' should be abolished by this court. We have recognized causes of action for a breach of promise of marriage since 1886. Brown v. Bannister, 14 Haw. 34; Ayers v. Mahuka, 9 Haw. 377; and Dias v. Gilliland, 5 Haw. 540. Any argument on the social desirability for the abolishment of breach of promise actions should be addressed to the legislature.

Second, defendant contends that 'the evidence does not support the verdict of the jury.' In denying the motion for a new trial and judgment notwithstanding the verdict, the trial judge stated, 'there is substantial evidence, far more than a scintilla, upon which a verdict could have been rendered' in this case. We agree. A careful review of the record clearly indicates that there was substantial evidence to justify and support the verdict returned by the jury. Collins v. Shishido, 48 Haw. 411, 405 P.2d 323; Johnson v. Sartain, 46 Haw. 112, 375 P.2d 229; Territory of Hawaii, by Sharpless v. Adelmeyer, 45 Haw. 144, 164, 363 P.2d 979, 990; Reynolds v. Van Culin, 36 Haw. 556, 557; Darcy v. Harmon, 30 Haw. 12, 13.

Defendant's third specification of error reads: 'The Court below erred in refusing to grant a new trial.' A general assignment of error which does not 'set out separately the particulars of each error intended to be urged,' is insufficient and does not call for consideration by this court. Rule 3(b)(4), Rules of the Supreme Court. State v. Kahua Ranch, 47 Haw. 466, 468-469, 390 P.2d 737, 739; Watumull v. Tax Comm'r, 34 Haw. 84, 85-86; Mid-Pacific Dress Mfg. Co. v. Cadinha, 33 Haw. 456, 472-473; Solomon v. Niulii Mill & Plantation, Ltd., 32 Haw. 571, 573-574; Lemes v. Lusitana Society, 32 Haw. 522, 525; Smith v. Laamea, 29 Haw. 750, 760.

Rule 3(b)(3) of the Rules of this Court requires briefs on appeal to present a concise statement of the questions involved and the manner in which they are raised. The scope of appeal is limited to the points set forth in or necessarily suggested by the statement of questions involved. State v. Kahua Ranch, supra, 47 Haw. at 469, 390 P.2d 737; Miller v. Loo, 43 Haw. 76, 80.

In examining defendant's statement of the questions involved in this appeal, we find inter alia the following:

'2. Did the Court below err in admitting to evidence letters and photographs which had no probative value and which were offered for the purpose of inflaming and prejudicing the jury against the defendant?

'5. Can a jury's verdict stand when it appears that the jury has made unauthorized use of a party's argumentative exhibits not in evidence?'

Since there is no statement indicating the manner in which they were raised, the foregoing questions do not comply with Rule 3(b)(3). Nevertheless, and despite the insufficiency of the general specification of error that 'the court below erred in refusing to grant a new trial,' we will consider the points set forth or necessarily suggested by questions numbered 2 and 5.

The defendant argues that the court erred in not granting a new trial 'because the verdict and judgment below were the product of passion and prejudice,' based upon 'inflammatory pictures and letters that have no logical relevance to any material issue in the case, but whose sole purpose was to prejudice the jury against defendant by attacking his morals.'

Plaintiff testified that defendant's proposal of marriage and its acceptance were made in a trans-pacific telephone call to her home in Kentucky on February 2, 1961. She arrived in Honolulu on August 15, 1961. On September 17, 1961, defendant, who lived on Maui, came to visit her in Honolulu. It was during this visit that defendant instructed plaintiff, who was naive in such matters, in sexual practices which fell just short of intercourse. In October 1961, defendant's letters detailed to sex acts desired and anticipated by defendant and described defendant's sexual condition when he wrote or spoke to her over the telephone. In November and December 1961, plaintiff made two week-end trips to Maui during which plaintiff and defendant engaged in sexual intercourse. On December 27, 1961, defendant flew to California and on December 30, 1961, proposed to another woman whom he was also courting and whom he subsequently married. On January 16, 1962, defendant wrote to plaintiff and told her he did not love her and asked her to forgive him. Plaintiff, ignorant of the other courtship and engagement, attempted a reconciliation which failed.

The passionate letters of defendant and three photographs of defendant which were sent by defendant to plaintiff showing him in lewd and pornographic positions were admitted in evidence over objections of defendant. Defendant argues that the effect of these 'exhibits can be conservatively described as shocking and revolting, and it may be conceded that they constitute an arresting indictment of his then moral character. It is impossible to view these exhibits without experiencing an immediate and strong reaction against the Defendant for having written the letters and made the pictures.'

The relationship between plaintiff and defendant was principally established through correspondence. Plaintiff offered the letters and photographs as evidence of enticement, inducement, solicitation, and subsequent seduction after a promise of marriage and as corroboration of the subject matter of numerous telephone calls which constituted the other major means of communication between the parties.

After a careful examination of the letters and photographs sent by defendant to plaintiff in this case, we are of the opinion that they are evidence, in addition to the testimony of plaintiff and the other evidence, from which the jury could determine whether there was a promise to marry, whether plaintiff was seduced, and whether defendant's course of conduct entitled plaintiff to exemplary or punitive damages. Exclusion of the letters and photographs on the ground that they may be prejudicial and inflammatory, because of their salacious and reprehensible nature, would have precluded proof in this case, after the promise of marriage, of the nature of defendant's solicitation, enticement and persuasion which culminated in the two acts of seduction. See State v. Molina, 47 Haw. 391, 403-405, 390 P.2d 132, 139-140; Territory v. Josiah, 42 Haw. 367, 381-385; Territory v. Joaquin, 39 Haw. 221, 228.

Defendant also contends that a new trial should be ordered 'because the jury was permitted to use (during deliberations) exhibits not duly offered and admitted during the trial.' This, defendant asserts, is prejudicial error since the effect was to allow plaintiff to reargue her case for damages without a similar opportunity being given the defendant.

These 'exhibits,' hereinafter referred to as 'tables,' consisted of sheets of paper tacked to a blackboard, on which appeared a compilation of plaintiff's alleged expenditures made in reliance on the alleged promise to marry. Plaintiff's counsel noted each expenditure on the sheets of paper as the figure was introduced into evidence; these compilations were then used by plaintiff's counsel as an illustrative aid ¹ in his closing argument to the jury. Essentially, the compilations represented uncontradicted evidence of plaintiff's claim for compensatory damages, a fact admitted by defendant in oral argument and borne out by the transcript. Defendant objected to the use of the compilations only once on the grounds of expediency. ²

After the verdict was rendered in plaintiff's favor, and at the...