Morgan v. Yamada
| Decision Date | 07 April 1921 |
| Docket Number | No. 1265.,1265. |
| Citation | 26 Haw. 17 |
| Parties | GENEVIEVE MORGAN v. GEORGE YAMADA. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. J. T. DEBOLT, JUDGE.
(Kemp, J., dissenting.)
Syllabus by the Court
No form of words is necessary to specify the negligent act of the defendant causing the injury.
The doctrine res ipsa loquitur asserts that whenever a thing that produced an injury is shown to have been under the control and management of the defendant and the occurrence is such that in the ordinary course of events does not happen if due care has been exercised the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. The presumption thus raised is of course rebuttable.
A party cannot by amending his complaint set up a new cause of action but the test of whether an amendment to a complaint sets up a new cause of action is whether a recovery on the original complaint would be a bar to a recovery under the amended complaint.
There is much conflict of authority respecting the propriety of permitting an expert to state what is reasonable or prudent or what a reasonably prudent man would do in a given case.
J. W. Cathcart and B. S. Ulrich ( Thompson, Cathcart & Lewis on the brief) for plaintiff.
E. C. Peters and H. R. Hewitt ( Peters & Smith on the brief) for defendant.
This is an action for damages resulting from personal injuries. The original complaint alleged in substance that while plaintiff was walking in the public grounds known as the judiciary grounds situate on Mililani and King streets in Honolulu the defendant, acting through his agents and servants, wrongfully, negligently and in utter disregard of the safety and rights of plaintiff and without sounding any alarm or giving any warning to plaintiff which she could or did hear and without properly guying or steering the direction thereof pulled and razed the Mililani street wall of the opera house situated on Mililani street and King street so that a portion thereof fell outward and across an electric light wire charged with electricity causing said charged electric light wire to strike plaintiff on her body rendering her unconscious; that the breaking of said electric light wire and its contact with plaintiff were the direct result of the negligent and improper method of razing or demolishing said wall by defendant and were without fault on the part of plaintiff; that from said shock received by the plaintiff as aforesaid she did and does suffer intense pain, etc. At the trial and before the introduction of any evidence the plaintiff with leave of court amended her complaint by striking out the words “charged” and “charged with electricity” otherwise leaving the complaint as it was. The trial proceeded and at the close of the evidence the plaintiff again asked and procured leave of the court to amend her complaint to make it conform to the proof, whereupon she filed her amended complaint in two counts in substance as follows:
“I. That heretofore, and on to wit, the 13th day of April, A. D. 1917, at Honolulu aforesaid, the defendant, through his duly authorized agents and servants was razing, demolishing and tearing down that certain building then situate on Mililani street and King street, in said Honolulu, theretofore and then known as ‘The Opera House.’
First Count. II. That on said 13th day of April, 1919 (1917), at about the hour of 4 o'clock P. M., plaintiff was walking in the public grounds in front and a part of the ‘Judiciary Grounds' (so-called) situate on said Mililani and King streets, in Honolulu aforesaid or on the sidewalk on the Waikiki side of Mililani street or on said street. That while plaintiff was so walking as aforesaid, defendant herein, acting through his agents and servants as aforesaid, wrongfully, negligently and in utter disregard of the safety and rights of plaintiff and without sounding any alarm or giving any warning to plaintiff which she, said plaintiff, could or did hear, and without properly guying said wall or steering the direction thereof, pulled down and razed the Mililani street wall of said ‘The Opera House’ so that a portion thereof fell outward and into said Mililani street and across an electric light or other wire or pole, causing said electric light or other wire to strike said plaintiff on her body, and rendering her unconscious. That the fall of said pole and of said electric or other wire and the contact with plaintiff was the direct result of the negligent and improper method of razing or demolishing said wall by said defendant through his agents and servants as aforesaid, and was without fault on the part of said plaintiff.
Second Count. And plaintiff further alleges that on said 13th day of April, 1919 (1917), at about the hour of 4 P. M. plaintiff was walking in the public grounds in front and a part of the ‘Judiciary Grounds' (so-called) situate on said Mililani and King streets, in Honolulu aforesaid, or on the sidewalk on the Waikiki side of Mililani street or on said street. That while plaintiff was so walking as aforesaid, defendant herein, acting through his agents and servants as aforesaid, wrongfully, negligently and in utter disregard of the safety and rights of plaintiff and without sounding any alarm or giving any warning to plaintiff which she, said plaintiff could or did hear, and without properly guying said wall or steering the direction thereof, pulled down and razed the Mililani street wall of said ‘The Opera House’ so that a portion thereof fell outward and into said Mililani street, and induced in said plaintiff reasonable fear and caused said plaintiff to run and fall down and become unconscious and to be hurt, and injured without any fault on her part. That from the premises aforesaid and from said injuries so received by the plaintiff as aforesaid, plaintiff did and does suffer intense pain and loss of strength, and has incurred permanent disabilities to her body and nervous system, is forced to leave and remain away from her usual employment, and is nervous and distraught, to the damage of the plaintiff in the sum of Five Thousand Dollars ($5,000.00).”
The cause proceeded upon the amended complaint and resulted in a verdict and judgment in favor of plaintiff for $1500 and the defendant brings exceptions.
We will first consider the exceptions raising the sufficiency of the complaint and challenging the action of the court in allowing amendments to the complaint. It is first contended by defendant that the original complaint does not state a cause of action and therefore could not be amended. The plaintiff does not concede that the original complaint could not be amended even if it be conceded that it does not state a cause of action, neither is it conceded that the original complaint does not state a cause of action. We do not find it necessary to decide whether a complaint which does not state a cause of action can be amended for we think the original complaint does state a cause of action.
It is contended first that no facts are alleged which show in any way a duty to be owing from defendant to plaintiff, the argument being that no necessity for warning or other precaution is shown because the allegations of the original complaint do not locate her in the vicinity of the work being carried on by defendant. The complaint locates the building, the wall of which was being pulled down, at Mililani and King streets and locates the plaintiff in the front part of the judiciary grounds on Mililani and King streets. It is true that this is a rather indefinite statement of the relative positions of the plaintiff and the wall which defendant was pulling down but since it locates both at Mililani and King streets and places plaintiff in a place where it was lawful and proper for her to be we think it was sufficient to withstand a general demurrer and is therefore sufficient to withstand the attack now being made upon it.
It is also contended that the complaint fails to allege that the defendant was negligent in the discharge of any duty which he owed to plaintiff. Defendant undoubtedly owed to plaintiff, as he did to all other persons in the vicinity of the place he was carrying on the work of pulling down the wall, the duty of exercising ordinary care to protect her from any danger likely to result from the act about to be performed and to warn her of such danger unless the danger was obvious. (29 Cyc. 474.) The complaint alleges that the defendant wrongfully and negligently and in utter disregard of the rights and safety of plaintiff failed to properly guy the wall and steer the direction of its fall, etc. It is therefore not subject to the criticism under consideration. The remaining objection to the original complaint is that it does not allege that the defendant's negligence was the proximate cause of her injury. The language of the complaint is that the breaking of said electric light wire and its contact with plaintiff were “the direct result of the negligence and improper method of razing or demolishing said wall,” etc. True the term “proximate cause” does not appear in the complaint but no form of words is necessary and where the negligent act causing the injury is set out with an allegation that “by reason of, by, through, or in consequence of such negligence it is a sufficient as well as a direct allegation that defendant's negligence caused the injury or that it was wholly caused thereby.” (29 Cyc. 573.)
In Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, the complaint alleged that on October 25, 1893, the defendant was engaged in hoisting sundry iron girders and trusses and placing the same on a building on the west side of Ferry street in the city of New Haven, using for said...
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Winter v. Scherman, 5707
...49 Haw. 77, 82, 412 P.2d 669, 675 (1966), quoting from Ciacci v. Woolley, 33 Haw. 247, 257 (1934), quoting in turn from Morgan v. Yamada, 26 Haw. 17, 24 (1921). It has been argued that there is nothing distinctive about the doctrine of res ipsa loquitur, and that the logic used in res ipsa ......