Matsumura v. Cnty. of Haw.

• Decision Date: 09 July 1909
• Citation: 19 Haw. 496
• Parties: KUMAZO MATSUMURA v. COUNTY OF HAWAII.
• Court: Hawaii Supreme Court

19 Haw. 496

KUMAZO MATSUMURA

v.COUNTY OF HAWAII.

Supreme Court of the Territory of Hawai‘i.

Argued June 10, 1909.

Decided July 9, 1909.

EXCEPTIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.

Syllabus by the Court

Advantage cannot be taken of an irregularity in the drawing of trial jurors unless it clearly appears that the party objecting was injured.

The admission of incompetent evidence of a material fact is an error without prejudice when the fact is proved by other competent and undisputed evidence.

A county is liable for injury to private property caused by the negligent act, done in the course of their employment, of road employees engaged to repair a public highway, even though the act was not authorized or was expressly forbidden by the county or was in itself a trespass on the land of third parties other than the plaintiff.

C. F. Clemons ( Thompson & Clemons on the brief) for plaintiff.

W. H. Smith ( Charles Williams and W. H. Smith on the brief) for defendant.

HARTWELL, C. J., WILDER AND PERRY, JJ.

OPINION OF THE COURT BY PERRY, J.

This case has been before this court, on exceptions to the sustaining of a demurrer. 19 Haw. 18. The conclusion on those exceptions was that upon the facts stated in the declaration the county of Hawaii was liable. At the trial, which was had before a jury, a verdict was rendered for the plaintiff in the sum of $7,500. The case now comes to this court on thirty-four exceptions.

Exception 1. The jury was impanelled January 21, 1909, out of twenty-six names drawn by the judge January 11, 1909. The November term, 1908, of the circuit court of the fourth circuit did not expire until after the conclusion of the trial in this case, the February term opening, under the statute, on the third Wednesday of February, 1909. The regular jurors in attendance at the November term were excused for the term on December 21, 1908. On January 11, 1909, a criminal case, Territory v. Toon Miung Ho, was called and the presiding judge directed the clerk to draw a jury for its trial. No jurors being in attendance and more than three talesmen being required, the court, on the theory that the term of service of the 1908 jurors had expired, and without publication of notice, directed the drawing of the twenty-six names just referred to, for the purpose of filling the panel and acting as trial jurors for the residue of the term, out of the list of 150 trial jurors prepared by the commissioners in December, 1908, for the year 1909. In making this drawing the court acted under R. L. Sec. 1782. Prior to the impanelling defendant challenged the array.

The contention is that the failure to publish notice in accordance with the provisions of R. L., Sec. 1779, as amended, rendered the drawing irregular, that under that section no drawing out of the list for 1909 could be made for service during January, 1909, unless for a special term first called and that R. L., Sec. 1782, does not authorize a drawing when no jurors are in attendance or obtainable but only when some, insufficient in number, are in attendance or obtainable. Assuming, but not deciding, that the drawing was irregular, the error cannot result in a new trial, because it does not appear that the plaintiff was injured by the drawing. Sec. 1795 of the Revised Laws reads as follows, omitting immaterial portions: “No person shall take advantage of any irregularity * * * in the drawing, summoning, returning or impanelling of * * * trial jurors unless such irregularity shall have been objected to by him before verdict or unless it clearly appears that he was injured by such irregularity.” The word “or” towards the end of the sentence should be read as “and.” The context so requires. While defendant's challenge was interposed in time, there has been no showing or claim that the irregularity in any way injured the plaintiff. No reason exists for supposing that it did. It may be added that Sec. 1795 was enacted in 1903 and that no such statutory provision was in force at the date of the decision in King v. Cornwell, 3 Haw. 154 (1869), in which case a similar irregularity was apparently regarded as reversible error.

Exceptions 2 to 8, 11, 12 inclusive. The court admitted testimony of a statement to plaintiff by Keola, one of the servants of the defendant engaged in repairing the road at the time of the injury complained of, “I made you a lot of pilikia and I don't care if I make (die);” and also of another statement by the same servant to the effect that he, Keola, “was very sorry, that he had no intention of doing anything that way, and he asked my pardon,” made in answer to a remark by the witness, who had been injured as a result of the accident in question, “You see what you have done because you didn't mind me and stop the water a little mauka; see the condition I am in now.” The acts complained of and the resulting injury to plaintiff's property occurred about noon. The first of these statements was made “in the latter part of the afternoon,” and the second a day or two later. The case sought to be established by the plaintiff was that Keola and three others while acting as the agents and servants of the defendant in clearing of weeds a public highway situated in the defendant county negligently tapped a flume which paralleled the highway at that point and caused water to flow in the gutter along the highway for the purpose of carrying off the weeds and that because of this flow of water from the flume to the highway large quantities of earth and rock were loosened and fell against and destroyed certain houses and other property of the plaintiff. The testimony was evidently admitted as admissions of an agent against his principal. Assuming that the admission was erroneous, the error was not prejudicial or reversible. It was abundantly proved by other evidence which stood undisputed that the flume was tapped by Keola and his co-laborers, that the flow of the water diverted caused a land-slide and that the land-slide, whether by the direct impact of the earth and rocks so precipitated or by a resulting shaking of the ground at that point, caused the injury to plaintiff's property. That there was such undisputed proof is admitted, but it is contended on behalf of the defendant that Keola's statements as received in evidence from other witnesses could be construed by the jury as admissions that the material dislodged came in direct contact with the plaintiff's buildings and other property and thus caused the injury and that the error was therefore prejudicial because one of the defences at the trial was that the injury was caused not by direct contact with the earth and rocks but by the quaking of the ground operating upon the flimsily constructed buildings of the plaintiff. Assuming that upon the latter theory the diversion of the water could not be regarded as the proximate cause of the injury, we think that Keola's statements under consideration are incapable of the construction urged and that no reasonable juror could have understood them as being anything further than an admission that he, Keola, or those under him had set in motion the forces which directly or indirectly resulted in the injury. The plaintiff's case was as strong without the testimony as with it. The admission of incompetent evidence of a material fact is an error without prejudice when the fact is proved by other competent and undisputed evidence. See Railway v. Elliott, 102 Fed. 96, 106; Gay v. Farley, 16 Haw. 69, 79; Kapiolani Estate v. Thurston, 17 Haw. 312, 323-326; Brown v. Spreckels, 18 Haw. 91, 104.

Exception 9. Plaintiff was asked upon cross-examination, “Can you state, from the appearance of the remains of the warehouse and its contents at the time you arrived from Hilo after this accident took place, in what way the building went down, whether it tumbled over or slid down the bank or how?” This question was correctly disallowed for it called for a conclusion of the witness as to the precise method of destruction drawn from what he saw on the ground. At most his testimony could properly refer to what he saw, leaving it to the jury to draw its inference as to the cause and the method of the injury.

Exceptions 15, 21, 24, 25, 26, 27. Some of these are to rulings on evidence and the others on the subject of instructions to the jury. It is contended that they present the question whether the defendant is liable for acts done by the laborers without express authority or against express directions of the road supervisor. It may well be doubted whether the issue, in so far as it relates to acts against the express directions of the defendant, is raised. We shall, however, consider the subject as though both phases of the matter were properly before us.

Where the employer is an individual or a private corporation the ordinary rule is that the master is liable for the negligence, whether of omission or of commission, of the servant committed within the scope of his employment even though the acts or omissions were not authorized or were expressly forbidden by him. It is not essential in order to render the master liable that the acts complained of were necessary to the performance of the master's business. These principles are well established. The difficulty arises only with reference to their application to particular cases. Whether an act is within the scope of the employment may not be as simple of solution in one instance as in another. The test seems to be that if the servant, for however short a time, goes outside of his master's business and does something wholly disconnected from it purely for private purposes of his own, as, for example to visit his vengeance or spite upon another, the master is not liable; but if the act, however improper or ill advised, and even though wrongful, unlawful or forbidden is done in supposed furtherance of the master's business and for the purpose of thereby performing the latter's work, liability attaches.

A few citations will...