Mossman v. Sherman

• Decision Date: 08 March 1938
• Docket Number: No. 2344.,2344.
• Citation: 34 Haw. 477
• Parties: LIBBY MOSSMAN v. BENJAMIN SHERMAN.
• Court: Hawaii Supreme Court

34 Haw. 477

LIBBY MOSSMAN

v.BENJAMIN SHERMAN.

No. 2344.

Supreme Court of the Territory of Hawai‘i.

Argued December 14, 1937.

Decided March 8, 1938.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. H. E. STAFFORD, JUDGE.

Syllabus by the Court

When the court has, at the defendant's request, given the jury an instruction which is in harmony with a ruling previously made by the court, to which ruling the defendant objected and excepted, the defendant is estopped from claiming on appeal that the ruling, to which the exception was taken, was erroneous.

When the driver of an automobile who is accompanied by a gratuitous guest reaches an intersection under conditions that give him the right of way he is not justified in exercising this right under all circumstances regardless of the safety of his passenger but must use that degree of care in the management and control of his car which reasonable prudence requires.

When there is substantial evidence amounting to more than a scintilla tending to support the verdict of the jury the verdict cannot be set aside on the ground that it is not supported by sufficient evidence.

E. J. Botts (also on the brief) for plaintiff.

C. A. Gregory (Smith, Wild, Beebe & Cades on the briefs) for defendant.

COKE, C. J., BANKS AND PETERS, JJ.

OPINION OF THE COURT BY BANKS, J.

This is an action for the recovery of damages for injuries sustained by the plaintiff as the result of a collision between two automobiles. There was a verdict for the plaintiff in the sum of $3500. The case is brought here on exceptions.

Defendant's first exception is to the refusal of the court to grant his motion to withdraw a juror and enter a mistrial. The motion was predicated on the following facts: While the jury panel was assembled in the courtroom counsel for the plaintiff propounded to them as a whole the following questions: “Have any of you gentlemen any connection with Waldron, Fred L. Waldron & Co., or the insurance department of that concern? Would the fact if it becomes developed as a fact that Waldron insurance agency is connected with the outcome of this case, interfere in any way with you against the interests of Miss Mossman?” Defendant's counsel objected to the question on the ground that it was prejudicial to the interests of the defendant and that it was asked for the purpose of creating this prejudice and moved that a juror be withdrawn and a mistrial entered. Thereupon plaintiff's counsel withdrew the question and the court instructed the entire panel to disregard it. Defendant's counsel then renewed his motion contending that the damage had already been done and was not cured by withdrawal of the question. The court overruled the motion and the defendant excepted.

Assuming but not deciding that there was error in the refusal of the court to sustain the defendant's motion his right to take advantage of it on appeal to this court was waived by his subsequent request for the following instruction which was given the jury: “You are instructed, gentlemen of the jury, that there is no evidence in this case to the effect that the defendant carries public-liability insurance. You will therefore in arriving at your verdict, not allow any speculation on the question of insurance to influence you in your decision. For your information counsel had the right to propound questions to you before you were finally chosen to try this cause, concerning your interest or interests in any insurance companies, in order to ascertain your bias and prejudice in this type of case where insurance companies are sometimes involved. Questions relating to their interest in insurance companies may be propounded to prospective jurors whether or not the defendant in the particular case at hand carries public-liability insurance. Those questions are not evidence and should in no way lead you to the conclusion that the present defendant does carry public-liability insurance, and any such conclusion would be entirely foreign to the issues in this case.” By requesting this instruction the defendant voluntarily placed himself in the awkward and inconsistent position of asking this court to set aside the verdict of the jury because of an alleged injury done him by the mere propounding of a question to the jurors and at the same time admitting that the question was rightfully propounded.

The only remaining exceptions relied on by the defendant are the refusal of the court to direct a verdict in his favor, his exception to the verdict and his exception to the judgment. These exceptions are based on the assumption that the evidence as a matter of law was insufficient to justify the submission of the case to the jury. In order to sustain this contention it would be necessary to decide that there was no substantial evidence amounting to more than a scintilla to warrant the action of the court. This, under the evidence before us, we cannot do.

The fundamental question was whether the defendant's conduct in the management and operation of his automobile was in conformity with that degree of care for the safety of the plaintiff which the law requires. The following facts were established by uncontradicted evidence. On February 7, 1937, at approximately 3:30 a. m., there was a collision between the defendant's car and another car, which was being operated by a Filipino whose name does not appear, at the intersection of Nuuanu and Pauahi Streets in Honolulu. As a result of the collision the plaintiff was seriously injured. The defendant's car was traveling makai on Nuuanu Street and the other car was traveling waikiki on Pauahi Street. The courses of the two cars were at right angles to each other. The width...