Reynolds v. Van Culin. Avis Reynolds

• Decision Date: 08 December 1943
• Docket Number: No. 2506.,2506.
• Citation: 36 Haw. 556
• Parties: HENRY S. REYNOLDS v. SAMUEL VAN CULIN. AVIS REYNOLDS v. SAMUEL VAN CULIN.
• Court: Hawaii Supreme Court

36 Haw. 556

HENRY S. REYNOLDS

v.SAMUEL VAN CULIN.

AVIS REYNOLDS

v.SAMUEL VAN CULIN.

No. 2506.

Supreme Court of the Territory of Hawai‘i.

Argued November 5, 1943.

Decided December 8, 1943.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

The verdict of a jury based on conflicting evidence will not be set aside when there was before the jury substantial evidence, more than a mere scintilla, in support of its findings.

Where the defendant is primarily liable for the negligence that caused injury to the plaintiff, his action against the defendant for such negligence is not rendered fictitious or collusive by a showing that the plaintiff intends after judgment to proceed against an insurance company not a party to the suit under a policy issued by the company in an attempt to have satisfaction of his judgment.C. A. Gregory ( W. R. Ouderkirk and Smith, Wild, Beebe & Cades on the briefs) for defendant-appellant.

C. B. Dwight (also on the briefs) for plaintiffs-appellees.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY KEMP, C. J.

Henry S. Reynolds and his wife Avis Reynolds each sued Samuel Van Culin for damages for personal injuries suffered by them as the result of a collision between two automobiles one of which was being operated by the defendant. The plaintiffs were passengers in the automobile being operated by the defendant, and they attribute the collision and their resulting injuries to the alleged negligence of the defendant in the operation of said automobile.

The two cases were consolidated for trial and resulted in a verdict and judgment against the defendant in each of the cases. The defendant's one bill of exceptions brings both cases to this court.

There are five exceptions which raise only one question applicable to both cases, viz., the sufficiency of the evidence to warrant the submission of the question of negligence to the jury. The other exceptions relate solely to the case of Henry S. Reynolds.

The question of the sufficiency of the evidence of negligence will be considered first. “It need scarcely be said that the rule is well established in this jurisdiction that when there is before the jury substantial evidence, more than a mere scintilla, in support of its findings the verdict cannot be set aside and that questions relating to the credibility of the witnesses and to the weight of the evidence are for the jury alone to decide and are not within the province of this appellate court to pass upon.” Darcy v. Harmon, 30 Haw. 12, 13.

Neither the defendant nor the operator of the automobile with which he collided testified.

While there was other evidence more favorable to the defendant, there was evidence given by two disinterested witnesses to the following effect: Each of the two witnesses was operating another automobile in close proximity to the scene of the accident when it happened. One was following the defendant and the other was meeting him. The paved portion of the street upon which the accident occurred was very narrow. Its exact width was not shown but one witness estimated that two automobiles, but not three, could be driven abreast on the paved portion. The other witness estimated that it would accommodate three automobiles abreast. The paved portion was clearly not more than a three lane highway. The witness who was operating the automobile meeting the defendant said that the collision occurred within about ten feet of him; that when he first saw the defendant they were about 100 yards apart, at which time he, the defendant, was driving on his, the defendant's, half of the street but near the middle of the pavement; that about the time he first saw the defendant he noticed that another automobile “was creeping up from behind, passing me on the left slowly.” This was the automobile with which defendant collided. He also testified that just before the collision “the car in front of me [operated by defendant] I saw turn towards me to the center. He turned to his left.” He also said: “Of course, it all happened inside a split second. But it is the best of my impression.”

The witness who was operating the automobile following the defendant by twenty-five or thirty feet testified as to the movements of the two automobiles in much more detail, but most of his description of the movements was illustrated by a drawing of the street on a blackboard and by toy automobiles. What the witness did while using the drawing and toy automobiles to illustrate the movement of the automobiles involved in the collision may have been quite illuminating to the jury but is not and could not be made a part of the record. However, this witness corroborated the other witness in one significant particular. In speaking of the movement of the automobile being operated by the defendant just before the collision he said: “It swung over to the left; I noticed the car pull over.” The evidence as to the width of the street and that the automobile with which the defendant collided was passing another long before the collision, that the defendant was driving near the middle of the street and just before the collision “swung over to the left,” i.e., across the middle of the street, was substantial evidence more than a mere scintilla and was sufficient to justify submitting the question of negligence to the jury.

By its verdict the jury found the defendant negligent, and there being substantial evidence of negligence more than a scintilla to support the verdict, the exception under discussion is without merit.

Exception No. I raises the question of the correctness of the ruling of the court denying defendant's motion that the case of Henry S. Reynolds v. Sam Van Culin be dismissed. The evidence relied upon in support of the motion follows. Henry S. Reynolds having sued Samuel Van Culin on February 5, 1940, to recover damages for personal injuries, wrote a letter to Van Culin on July 15, 1940, which counsel for the defendant introduced in evidence after Reynolds admitted writing it. In the letter Mr. Reynolds said, inter alia, “I want to remind you again that we do not propose to look to you for the satisfaction of any judgment. The only way that we can proceed against the insurance company under the Kaufman policy is to sue you, obtain judgment and then sue the insurance company under the policy, alleging and proving that you were driving the car for the Kaufman's [sic] at the time Avis and I got hurt.”

Upon the letter being received in evidence, counsel for defendant moved “that the case of Henry S. Reynolds v. Sam Van Culin be dismissed upon the grounds, first, that there is a waiver of his claim by reason of the letter just introduced in evidence, defendant's exhibit 1; second, that there is an abuse of process in this court in filing the suit under the circumstances as set forth in his letter; and, third, that there is no substantial legal question before the Court, the plaintiff having admitted that he doesn't intend to look to the defendant for satisfaction of any judgment that he may receive.”

The motion was denied and the defendant's exception No. I brings the ruling here for review.

At the oral argument counsel for the defendant abandoned the first ground of the motion but insists that the motion should have been sustained on the other grounds. He has cited 1 C. J. 974 § 69 J, and 1 C. J. S. 1059, § 19, dealing with fictitious or collusive actions. A fictitious action is defined in 1 C. J. S. 1058 as “one brought on pretense of a controversy which does not exist.” A collusive action is defined as “one brought under a secret agreement for the decision of a legal question not involved in a controversy, or one so brought with intent to defraud other persons.” The portion of the text upon which defendant relies to support his argument that the suit of Henry S. Reynolds is fictitious or collusive follows: “An action cannot be maintained, as being fictitious or collusive, where its real object is * * * to procure a judgment which will affect or settle the rights or liabilities of third persons who are not parties to the action, * * * ” 1 C. J. S. § 19, b (1), p. 1059. The bringing of an action either fictitious or collusive would constitute an abuse of the process of the court. “ * * * any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.” Lord v. Veazie, 49 U. S. 250, 254.

The contents of the letter and the fact that the defendant at the time of the accident and for some time prior thereto had been associated with the plaintiff in business are the facts upon which we are asked to hold that the action is fictitious and collusive. The facts do not bring the action within the above definition of a collusive action. No agreement, secret or otherwise, of any character, between the plaintiff and defendant is disclosed by the letter or otherwise shown. It remains to be determined whether the action is fictitious.

Adjudicated cases cited by Corpus Juris Secundum in support of the text relied upon by the defendant are Golden Gate Bridge Etc. Dist. v. Felt, 214 Cal. 308, 5 P. (2d) 585;Fitzjarrell v. Boyd, 123 Md. 497, 91 Atl. 547, and Horneman v. Brown, 286 Mass. 65, ...