Maki v. City of Honolulu
| Decision Date | 15 October 1934 |
| Docket Number | No. 2154.,2154. |
| Citation | 33 Haw. 167 |
| Parties | JACOB JALMER MAKI v. CITY AND COUNTY OF HONOLULU. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. C. S. DAVIS, JUDGE.
Syllabus by the Court
The verdict of the jury on controverted questions of fact will not be set aside by this court if there is substantial evidence to support it.
Questions relating to the credibility of witnesses and the weight of the evidence are for the jury alone to determine.
A municipal corporation is not liable in an action for damages for the negligence or tort of its officers, agents or employees committed while in the exercise of what is known as a governmental function as distinguished from corporate activities.
The doctrine of immunity is based upon the theory that municipal corporations have a dual capacity, the one governmental or public and the other private or corporate.
Rubbish, consisting of tree trimmings, coconut trimmings and hibiscus, does not fall within the definition of garbage.
In the absence of proof establishing the fact, a court is not warranted in presuming that the removal of the material above described was a health measure or that its nonremoval would have been dangerous or deleterious to health.
There is no legal duty on the part of the garbage department of the municipality to remove rubbish from private premises and in doing so it performed no governmental function.
The removal of rubbish from private premises while undoubtedly beneficial involved, nevertheless, a corporate activity on the part of the city which did not concern the people of the Territory residing outside of the limits of the municipality.
P. Silver ( F. E. Thompson with him on the brief) for plaintiff.
W. C. Tsukiyama, City and County Attorney (also on the briefs), for defendant.
In the early morning of April 6, 1933, the plaintiff appellee, Jacob Jalmer Maki, a mechanic in the United States Navy, while driving his automobile along what is known as Ala Wai in the city of Honolulu, collided with the rear end of a garbage truck owned by the City and County of Honolulu and operated at the time by its employees. Accompanying the plaintiff in his automobile at the time were two friends, namely, Brown and Sands, both also of the Navy. Plaintiff's car was utterly demolished and he received injuries about the head and face including deep lacerations of the right side of the nose, which continued down through his upper lip with complete separation of the lip, ragged lacerations which extended from the right side of the nose through the right cheek to the corner of the mouth, compound fracture of the jaw, also a fracture of the base of the coronoid process of the jaw bone and a horizontal fracture of the ridge of the bone containing the teeth, which completely displaced six teeth. Plaintiff's companions were less seriously injured. Plaintiff was, for a long period of time, confined to a hospital under medical treatment, and, while escaping death, is permanently impaired and disabled by reason of the injuries sustained. The truck in question is of steel construction, weighing about six and a half tons, seven feet three inches high, seven feet eleven inches wide and twenty-four feet long and at the time of the collision was loaded with rubbish weighing approximately three tons. It was being operated at the time under the superintendent of garbage collection and disposal and of street cleaning, an office created by the city board of supervisors under the authority conferred upon it by section 1738, R. L. 1925. It appears that the crew was collecting rubbish along what is known as the Kaimuki-Kapahulu route and having loaded the truck was proceeding toward the city incinerator at Kewalo and after traveling along Ala Wai for a distance, the driver of the truck discovering that his gas supply was exhausted, parked the truck on the street. Leaving the truck in charge of two of the truck crew the driver, with a fourth employee, proceeded on foot some distance in order to obtain a supply of gasoline. While the truck was thus parked in the street the collision occurred; the street at this point is approximately forty-four feet wide; the plaintiff came from behind the truck, traveling in the same direction, the collision taking place about one o'clock in the morning.
Subsequently the plaintiff made demand upon the city and county for compensation for the damages sustained by him and upon this demand being refused he instituted an action in the circuit court of the first judicial circuit to recover for his personal injuries and the damages to his automobile. The defendant, through the city and county attorney, interposed a demurrer to plaintiff's amended complaint on the ground that the defendant is not liable for the alleged negligence of its employees while performing a governmental function, it appearing affirmatively in said amended complaint that the defendant was performing such function at the time of the collision. The demurrer was overruled by the court and the defendant thereupon entered a general denial including therein a notice of its intention to rely upon the illegality of plaintiff's claim. The cause thereupon went to trial before a jury and resulted in a verdict in favor of the plaintiff and against the defendant assessing his damages in the sum of $8,307.50. The city and county attorney interposed an exception to the verdict and filed a motion for a new trial, which was denied by the trial court. The cause now comes to this court on appeal by defendant's bill of exceptions.
The bill contains six separate exceptions but these may be condensed into three questions for the consideration of this court, the first of which is that the plaintiff was guilty of contributory negligence and therefore the negligence or carelessness of the defendant was not the proximate cause of plaintiff's injury. The second point made by defendant in the bill of exceptions is that the amount of the damages awarded to plaintiff is excessive. Defendant, however, has refrained from pressing this exception and we assume it has been abandoned by it; and finally it is urged by the defendant that the verdict and judgment are contrary to law because “the defendant, a municipal corporation, is not liable for negligence of its employees in the performance of a governmental function.”
The evidence presented at the trial is in sharp conflict and disagreement in reference to the events leading up to and which occurred at the time of the collision. The plaintiff testified and was generally supported in his statements by both Brown and Sands that he was driving along Ala Wai just prior to the collision at a rate of between thirty and thirty-five miles an hour; that when about fifty feet from the truck he observed the same standing in the street without rear lights and some eight to ten feet to the left of the curb; that he put on his brakes and did everything a reasonable and prudent man could do to avoid the collision but was unable to do so, and collided with the rear end of the truck, receiving the injuries of which he complains. The impact of the collision propelled the truck along the road for approximately fifty feet. The employees of the city and county testified that the truck was parked three or four feet to the left of the curb and witness Eddie Lau, the driver, testified that the head and tail lights were on at the time he left the truck in quest of gasoline and witness Kapeliela testified the tail lights were on shortly after the accident. Mr. Pence, another witness, testified that he arrived at the truck about five minutes after the accident and found the tail lights burning. The statement of the plaintiff and his witnesses of the rate of speed plaintiff's car was traveling immediately before the accident is also disputed by the testimony of witnesses Sills and Rogelio. On this contradictory testimony of the witnesses these issues were submitted to the jury and they passed upon them favorably to the plaintiff. It was within their province to do so.
This court, by an unbroken line of decisions, has established the rule that the verdict of the jury on controverted questions of fact will not be set aside by this court if there was substantial evidence to support the verdict; that questions relating to the credibility of witnesses and the weight of evidence are for the jury alone to decide and it is beyond the scope of this court's power to disturb the findings of the jury rendered under those circumstances. One of the early cases announcing this rule is Bryne v. Voeller, 13 Haw. 494. (See also Tibbets v. Pali, 14 Haw. 517; Darcy v. Harmon, 30 Haw. 12.) The same rule applies to decisions of circuit judges, jury waived. (See Hewahewa v. Lalakea, 27 Haw. 544.)
Confronted with this contradictory testimony the jury was free to resolve the questions in favor of either the plaintiff or the defendant. It chose the former course and we are unwilling to usurp the functions of the jury by withdrawing from its consideration one of the questions of fact which it was impaneled to decide.
Defendant's exceptions present the further question to be determined by this court, namely, whether the verdict and judgment should be set aside because of the rule that a municipal corporation is not liable in an action for damages for the negligence or tort of its officers, agents or employees, committed while in the exercise of what is known as a governmental function, as distinguished from corporate or ministerial activities. This rule of immunity is founded upon an ancient fiction of the law. It is a rudimentary survival of the maxim “the king can do no wrong,” and has little aside from its antiquity to commend it. Many courts and law writers have expressed keen dissatisfaction with the rule, but it has the sanction of the Federal Supreme Court as...
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Kamau v. Cnty. of Haw.
...The territorial supreme court has indeed made this distinction between “proprietary garbage” and “governmental garbage.” In Maki v. City & Co., 33 Haw. 167, it held the City and County liable in an action for tort for the negligence of its employees in removing rubbish but stated it would n......