Kisuki Waki v. Takizo Yamada

26 Haw. 52, 1921 Haw. LEXIS 8

• Court: Hawaii Supreme Court
• Decided: April 22, 1921
• Docket: No. 1313
• Status: Published

Opinion

OPINION OF THE COURT BY

COKE, C. J.

Tbis is an action instituted in tbe circuit court of tbe fifth judicial circuit by tbe plaintiff, appellant, against tbe defendant, appellee, based upon a complaint alleging that tbe defendant “did surreptitiously on or about tbe month of May, 1920, send one Sbimo Waki, tbe legal wife of plaintiff, to tbe Empire of Japan and out of tbe jurisdiction of tbe Territory of Hawaii without tbe knowledge and consent of said plaintiff and to deprive tbe plaintiff of ber tbe said Sbimo Waki’s company and services.” At tbe conclusion of tbe evidence on behalf of plaintiff counsel for defendant interposed a motion for a judgment of nonsuit wbicb was granted by tbe trial court and tbe action was dismissed. Tbe plaintiff comes here upon a bill of exceptions which presents the one question, which is whether as a matter of law there was sufficient evidence presented to-the jury to warrant it in returning a verdict for the plaintiff. The gist of the action as revealed in the complaint is the alleged loss of the consortium or society, affection, aid and comfort which the husband was entitled to expect and have from his wife and of which he alleges he was deprived by the wrongful act of the defendant.

The evidence in the case is fragmentary and much of it is hearsay and would no doubt have been excluded had timely objection thereto been interposed. If plaintiff’s case can be sustained at all it must be upon the theory that he has established prima facie that the defendant tortiously enticed, induced or in some other manner wrongfully deprived the plaintiff of the conjugal society or consortium of his wife. The only evidence in the case which at all connects the defendant with the departure of plaintiff’s wife from Hawaii was the mere statement of one of the witnesses for the plaintiff to the effect that defendant in a conversation with the witness stated that he had sent plaintiff’s wife back to Japan. No additional facts were shown connecting the defendant with the abandonment of plaintiff by his wife and it seems to us that the bald statement of the witness for plaintiff that defendant had remarked that he had sent plaintiff’s wife back to Japan is insufficient to support a verdict in favor of the plaintiff. The trial court took this view of the case and drew attention to the lack of any evidence tending to show that the defendant had induced, encouraged or enticed the plaintiff’s wife to quit the Territory. In a case of this nature the quo animo with which the defendant acted ought to be made a material point of inquiry.

Because the plaintiff failed to make out a prima facie case the exceptions must be and the same are overruled.

N. W. Aluli (S. K. Kaeo and B. K. Aiu with him on the brief) for plaintiff. L. A. Dickey for defendant.