S & W Crane Service, Inc. v. Berard's Dependents

• Court: Hawaii Supreme Court
• Writing for the Court: Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and MENOR, Circuit Judge, in place of KOBAYASHI; RICHARDSON
• Citation: S & W Crane Service, Inc. v. Berard's Dependents, 489 P.2d 419, 53 Haw. 161 (Haw. 1971)
• Decision Date: 27 September 1971
• Docket Number: No. 4894,4894
• Parties: S & W CRANE SERVICE, INC., and Pacific Insurance Company, Limited, Appellants-Appellees, v. DEPENDENTS of George H. BERARD, Jr., (Deceased), et al., Appellees-Appellants.

Page 419

489 P.2d 419

53 Haw. 161

S & W CRANE SERVICE, INC., and Pacific Insurance Company Limited, Appellants-Appellees, v. DEPENDENTS of George H. BERARD, Jr., (Deceased), et al Appellees-Appellants.

No. 4894.

Supreme Court of Hawai'i.

Sept. 27, 1971.

Syllabus by the Court

1. In any proceeding to enforce a statutory claim for workmen's compensation, it is presumed that the claim is for a covered work injury. If the employer fails to adduce substantial evidence to the contrary, the presumption dictates that the claimants must win.

2. Under H.R.C.P. Rule 51(e) a party may not assign error to the giving of an instruction unless he objects thereto stating the grounds for his objection.

3. In order to assign error to the giving of an instruction, it is necessary to state grounds specifically sufficient to direct the attention of the court to the issue the objection seeks to raise.

4. In order to assign error to the giving of an instruction, it is necessary that the objection call the alleged defect to the attention of the trial court and advise the court of the question presented, thereby affording the trial judge an opportunity to consider his ruling and correct it if necessary. Harriet Bouslog, Honolulu (Bouslog & Symonds, Honolulu, of Counsel), for appellees-appellants.

Wilbur K. Watkins, Jr., Honolulu, for appellants-appellees.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and MENOR, Circuit Judge, in place of KOBAYASHI, J., disqualified.

RICHARDSON, Chief Justice.

On December 15, 1965, the decedent, George H. Berard, Jr., reported for work at the Kalihi work yard of his employer, S & W Crane Service, Inc., (herein called appellee). Upon arrival, Berard was assigned to drive two fellow employees to a nearby work site. Returning from this assignment, the decedent assisted another fellow employee in moving a crane boom section. The decedent then climbed up the side of a 60-ton crane, a vertical distance of five feet, and sat in the operator's seat. After giving a horn signal to mean that he was ready to proceed, Berard slumped to the floor of the crane and died as the result of a heart attack. The dependents of George H. Berard, Jr., (herein called appellants) brought a claim for workmen's compensation benefits. The hearings officer denied the claim. On appeal to the Labor and Industrial Relations Appeal Board, the hearings officer was reversed. The decision of the Appeals Board was then appealed, pursuant to HRS § 386-88 ¹ to the Circuit Court where the jury found against the appellants.

The appeal raises several points; however, we find that only one merits consideration.

The appellants allege that the trial court erred in charging the jury, as requested by the appellee, as follows:

The presumption in favor of the claimants as set forth in the Workmen's Compensation Law does not have the attribute of evidence in the claimants' favor. The only office is to control the results where there is an absence of substantial evidence to the contrary.

The appellants' objection to the instruction was:

(T)hat the first sentence says that the presumption is not evidence, whereas I believe that under the law of Hawaii the presumption is evidence in Claimants' favor and can only be rebutted when there is substantial evidence to the contrary.

It would appear that the appellants reasonably anticipated our holding in Acoustic, Insulation & Drywall, Inc. v. Labor & Ind. Rel. App. Bd., 51 Haw. 312, 459 P.2d 541, rehearing denied 51 Haw. 632, 466 P.2d 439 (1970), wherein we held HRS § 386-85, ² the statutory presumptions in workmen's compensation cases to mean that 'if the employer fails to adduce substantial evidence to the contrary, the presumption dictates that the claimants must win.' 51 Haw. at 316-317, 459 P.2d at 544.

The issue in this case is whether appellants have complied with H.R.C.P. Rule 51(e) which provides that: 'No party may assign as error the giving * * * of an instruction * * * unless he objects thereto * * * stating * * * the grounds of his objection.' We think the grounds stated for the objection were 'sufficiently specific to direct the attention of the Court to the issue it sought to raise.' Pierro v. Carnegie-Illinois Steel Corp., 186 F.2d 75, 78 (3d Cir. 1950) citing Green v. Reading Co., 183 F.2d 716, 719 (3d Cir. 1950). See also Thomas v. Union Ry. Co., 216 F.2d 18 (6th Cir. 1954). Beyond simply giving notice of a belief that the instruction was erroneous, counsel for appellants proposed two concepts of the law of presumptions: First, an idea that presumptions are evidence ³ in favor of workmen's compensation claimants and second, that the employer must 'rebut' the presumption with substantial evidence to the contrary.

This objection correctly pointed out the statutory presumptions under the Workmen's Compensation Law and it reasonably called the attention of the trial court to advise it on the question...