26 Haw. 557 | Haw. | 1922
This is an action for damages for the negligence of the defendant corporation resulting in physical injuries to the plaintiff. The jury rendered a verdict in favor of the plaintiff for the sum of $7,250. The case comes to this court on a writ of error. The more important assignments of error will be considered in detail.
The case was tried in Hilo in the fourth judicial circuit of this Territory at a time when a vacancy existed in the office of circuit judge of that circuit. The trial was presided over by the Honorable J. W. Thompson, Judge of the Circuit Court of the Third Judicial Circuit, upon the written request and authorization of the chief justice of this court. One assignment of error is that this request and authorization were invalid because, as it is said, the statute purporting to provide for such temporary grants of authority is in conflict with the Organic Act of the Territory and therefore void. The statute under which the chief justice acted in requesting Judge Thompson to “preside at the trial of any cause or causes pending in the circuit court of the fourth circuit” is
On tbe afternoon of tbe first day of tbe tidal before tbe jury a newspaper published in Hilo published an article reading as follows:
“FOURTEEN-YEAR-OLD HILO G-IRL SEEKS $11,500 DAMAGES FROM INSURANCE FIRM FOR INJURIES.
“Pretty Miss Margaret Fraga, fourteen-year-old Hilo school girl, fell down a sidewalk elevator shaft, owned by tbe Hoffschlaeger Company, Ltd., last August.
“When her case was called in tbe Circuit court this morning she asked for $11,500 damages for injuries which she declares she suffered from her fall, from which she declares that she has never entirely recovered.
“Shortly before noon, tbe trial jury was completed and tbe beginning of testimony will start when court convenes this afternoon.
“Unusual Circumstances
“Tbe circumstances surrounding tbe case are rather unusual. According .to tbe Insurance company, which is defending tbe case for thé defendant, it is admitted that Miss Fraga was walking along Keawe street and fell down tbe elevator shaft, but they declare that tbe complainant did not suffer serious injuries. It is reported that tbe Insurance company, at tbe time of tbe accident, agreed to settle for a small amount of damages.. It is admitted that half of tbe iron grating, which was supposed to cover tbe shaft, was left unguarded.
“Miss Fraga declares that her injuries, both physical and mental, were so serious that she has not entirely re*561 covered. The twelve men who were selected to hear the evidence in the case are as follows: James Davis, George H. Akau, John Kahiawi, Antone J. Kimi, James Kauhu-lapua, Charles Johnson, T. O. Mitchell, E. B. Hamauku, A. Arasuda, S. K. Maka, E. A. Namohala, and Harry Hapai.
“Questions Jurisdiction •
“Judges William L. Stanley and Charles F. Parsons are appearing for the Insurance company, who are shouldering the responsible for the Hoffschlaeger company. It is expected that this case will require two days.
“Yesterday, when the case was first called, Judge W. L. Stanley filed a motion that Judge Thompson had no jurisdiction to hear this case. The motion was overruled and the case was continued until this morning.”
On the first day of the trial evidence had been presented to the jury after the noon recess only. Upon the opening of court on the second day of the trial counsel for the defendant presented a motion for the withdrawal of one juror and for the entry of a mistrial, basing his motion upon the ground of the newspaper publication of the article above quoted. Affidavits for and against the motion were filed and the motion was denied by the presiding judge and the trial proceeded. After verdict for the plaintiff the defendant in support of a motion for a new trial, based inter alia upon this same ground of the appearance of the publication in the local paper, presented additional affidavits upon the subject. The motion for a new trial was denied by the presiding judge.
In support of the errors assigned in connection with the denial of these two motions it is contended that the publication of the article was prejudicial to the defendant in that the article states, first, that an insurance company was the real defendant and was “shouldering” defendant’s case and the responsibility involved, and, second, that the insurance company had agreed to settle the claim of the plaintiff for a small amount of damages.
It is true that in many cases in New York, Illinois and perhaps other states it has been held that tbe mere statement, direct or indirect, by counsel to or in tbe presence of tbe jury that tbe defendant is protected by accident insurance is reversible error. This is an extreme view and does not appeal to us as sound. We do not care to
A motion to withdraw a juror and to enter a mistrial, even if a correct form of procedure in this jurisdiction, is at best addressed to the sound judicial discretion of the trial court. Marrin v. United States, supra; Fed. Cas. No. 14,858; Pirrung v. Supreme Council, 93 N. Y. S. 575, 578; Heiler v. Storage Co., 105 Atl. (N. J.) 233. We cannot find that in denying the motion the trial judge in the case at bar abused his discretion. Whether in this jurisdiction a motion of this kind (for the history of this method of procedure, which originated in a fiction, see Usborne v. Stephenson, 48 L. R. A. (Ore.) 432, 435, 438) can be entertained in the absence of reason shown why any particular juror should be excused or should not be permitted to longer serve in the case is a question that need not be decided in this case. For other reasons already stated the motion in this instance was correctly overruled.
The refusal of the court to order the witness to procure the books at his home or office and to produce them to counsel for further cross-examination is assigned as error. This assignment cannot be sustained. The general rule seems to be well settled that medical books are not admissible as evidence of the truth and correctness of the statements and views therein contained. 8 Ency. PI. & Pr., 768, 769; 8 Wigmore on Evidence, Sec. 1700; 22 O. J., Sec. 831. It seems to be equally, well settled' that when a medical expert cites a book as. authority for his statement passages in the book to the contrary may be shown him in cross-examination and further questions asked of the witness which are intended to bring forth an admission that the witness was in error. Same authorities.' But counsel in the case at bar sought to go further than this. He did not produce any books, he did not confront the witness with any passages in conflict with his testimony, but he sought to have the witness compelled to leave the stand and proceed to his home or office to obtain the books, return with them to the court-house and then to search for passages tending to confirm the opinions advanced by him in evidence. The most that can be said in favor of the defendant in this respect is that the matter was at best in the discretion of the trial judge and that that discretion having been exercised in the way that it was no reversible error is to be found in the ruling.
Another assignment of error is that upon the undis
It is further assigned as error that the verdict was excessive and that it must have been due to bias and prejudice on the part of the jury. The latter part of this
There are other assignments of error relating to so-called restrictions of the right of cross-examination and to the instructions of the court. Suffice it to say that we have examined them all with care and find no reversible error.
The judgment is affirmed.