9 Haw. 377 | Haw. | 1894
Opinion of the Court, by
This is an action of assumpsit for damages for breacli of promise .to marry. It was tried at the last December Term
“ The affidavit to set aside a default must state that a default has been taken, show reasonable diligence, must set forth facts showing a good defense and not a mere conclusion of law; should also state the facts relied upon in such motion, so that the Court may judge of the question of merits,” &c. 5 Encycl. Law', pp. 496n, 16 and 17, and cases there cited.
The affidavits before us do not show that the answer was
Power is given to the Judge or Court to open a default “in their discretion, for good and sufficient reasons.” Sec. 1126, Civil Code. We do not deem the reasons in this case to be good and sufficient. Being in default the statute, Sec. 1127, Civil Code, directs the clerk “to enter the cause upon the calendar of assessments to be made ex parte at the term, upon the sole adduction of plaintiff’s evidence, without admitting the defendant to rebut the same ”; — only allowing defendant to cross-examine plaintiff’s witnesses and to address the jury in mitigation of damages. But the default was opened and defendant put in testimony in defence which may have influenced the verdict. We sustain this exception, deeming the error sufficient upon which to order a new trial so that the case may be proceeded with, with defendant in default. We remark here that the Court, upon plaintiff’s demand, should have signed the order declaring defendant in default upon the filing of the clerk’s certificate of the default in answering, and should not have postponed doing so until the term had opened. See Sec. 1109, Civil Code.
Another exception is taken to the Court’s allowing defendant to identify and give the date of a letter said to have been written by plaintiff’s mother to defendant. The letter itself was thereafter ruled upon as not admissible and did not go to the jury. We do not consider this reversible error. It did plaintiff no harm.
A third ground of exception is that the Court refused to grant a new trial on the ground that the verdict was contrary to law and the evidence and the weight of evidence, and counsel for plaintiff urge that the verdict of the jury for
In an action for breach of promise of marriage though nominally the damages are compensatory for the breach of the agreement, i. e. for the loss of marriage, it also admits of punitive damages for injury to feelings, affections and wounded pride.
Sedgwick, Damages, p. 368.
Johnson vs. Jenkins, 24 N. Y. 252.
The measure of damages is a question for the sound discretion of the jury as in other cases of personal tort. “ In such cases the Court will refuse new trials for smallness of damages for the same reasons that prevail on questions of excessive damages. To entitle the application to succeed the jury nrast have clearly manifested an abuse of their powers.” 1 Graham & Waterman, N. J. 447. This verdict does not seem to us to be so flagrant and unjust as to require the interposition of the Court — that is, the verdict rendered for $400 damages does not per se indicate partiality or misconduct of the jury. A fair and unprejudiced jury might come to the same conclusion as to the amount of damage to be awarded as the jury did in this case, and it might also award a greater sum. Within reasonable limits the amount of damage was within their discretion.
We overrule this ground of exception.
On the last ground advanced by the exceptions of misconduct of the jury we think a new trial should be ordered.
The case was tr:ed on the 9th December, Saturday. It appears by the affidavit of Lukela Kulu that on the day previous to the trial a native named J. Kamahele came to deponent’s house in Lahaina with a third party. Kamahele was one of the regular panel of jurors, and had been summoned from Wailuku where he resides. While there,
Conway, a juror, testified to being treated by Kapuabiwa
Kapuahiwa does not offer his affidavit to rebut these statements, nor does he or the juryman Kamahele explain the nature of their conversation if it was not as suspected by Lukela Kulu. One J. K. Kahookele was drawn as a juror in the case and answered on his voir dire that he had not formed or expressed an opinion in this case. “ Q. Has anyone talked with you about this case or attempted to influence you ? A. Somebody has talked with me and attempted to influence me. Q. Who is it? A. I know his voice, but I don’t know his name.' Q. Is he a young man or an old man. No answer. Q. Do you know where he lives ? A. No. Q. Do you see him anywhere here? A. Not in this room. Q. Did they talk in favor of either side ? A. They merely said that the case had been tried in Honolulu and brought up here. Q. Did you understand that, or did he say or do anything which led you to believe that he intended to influence your judgment in this case? A. No. Q. Did he know you as a juryman? A. Yes, he knew I was a juryman.” After some other unimportant questions had been asked and replied to, the man said that he could try the case fairly for both sides, but he was challenged peremptorily by plaintiff. We have, in short, the facts that a person having a close connection with the defendant, and living with him as a father, with the knowledge that the Hawaiian jurors were summoned for the next clay, and that the case in which he was interested was the first one to be tried, asking and obtaining the names of the jurors who were coming from the other side of the island, meeting and talking with two of them, John Kanakamaikai and Kamahele, and probably also J. K. Kahookele, treating to liquor several of the jurors, and in the case of J. Kanakamaikai, making-improper efforts to influence him, which Kapuahiwa does not deny. The presumption is not a violent one that his conversation with J. Kamahele was of the same character as that with Kanakamaikai. Kapuahiwa, in treating the jurors to
Stafford vs. The City of Oskaloosa, 57 Ia., 748, is another case where the verdict was set aside for misconduct of a juror. Pending the trial a Sunday intervened, and the juror spent a night at the house of the prevailing attorney, who was an old friend of his. No conversation w>as had between them on the case, and both were men of high character, but the Court reversed the verdict in view of these circumstances, saying, that “ to sanction the ' transaction would bring disgTace upon the administration of the law.” In Bradbury vs. Coney, 62 Me., 225, the court said, “It is important that jurymen should be devoid of prejudice. It is hardly less so that they should be free from the suspicion of prejudice.” See Martin vs. Morebock, 32 Ill., 485.
The books are full of cases treating of misconduct of juries, but the circumstances of each case must be considered by themselves as they present facts wrhich are not likely to be exactly repeated in other cases.
Numbers of these cases are in reference to jurors, after
Thompson and Merriam on Juries says (p. 416) : “ Where the successful party is shewn to have attempted by improper means to influence the verdict in his favor, whether by corrupting or intimidating pai'ticular juroi's by arousing prejudice in their minds against the opposite party, or his cause, or by undue hospitalities or ciA'ilities, the verdict will be set aside, as a punishment to the offender and as an example to others, without reference to the merits of the controversy, and iviihoui considering whether the attempt was successful or not.” We adopt this principle.
New trial ordered.