Garcia v. Ichikawa , 34 Haw. 748 ( 1939 )

  On March 23, 1938, Antonino Garcia recovered judgment against
the defendant H. Ichikawa in the district court of Waimea, County
of Kauai, in the sum of $428.70 on which an execution issued.
Said execution was levied by the sheriff on March 26, 1938, on
certain barber's tools and implements belonging to the defendant.
The defendant moved the district magistrate to quash said levy of
execution

on the ground that said tools and implements were exempt from
execution and attachment under the provisions of the Revised Laws
of Hawaii, 1935. After a hearing the district magistrate entered
an order quashing and setting aside the levy and directed the
return of the property to the defendant. The plaintiff appealed
from said order to the circuit court of the fifth circuit where,
after a hearing, a decision and order was filed by the circuit
judge quashing the said levy and the plaintiff comes to this
court on exceptions.
  The exceptions contained in the bill are twelve in number but
the plaintiff has waived seven of the exceptions and relies upon
the remaining five. These five exceptions may be considered in
two groups. The first group relates to the overruling of
objections to evidence of the defendant in response to questions
eliciting from him a statement of his intention to resume his
calling as a barber. The other group of exceptions challenges the
correctness of the ruling of the circuit judge to the effect that
the renting of said tools and equipment by the defendant with no
definite term did not constitute an abandonment of his calling as
a barber so as to render said tools liable to execution.
  There is no contention that the tools and implements involved
do not come within the class exempt under section 4161, which
provides inter alia: "The following described personal property
shall be exempt from attachment, execution, distress and forced
sale of every nature and description: * * * The tools or
implements of a mechanic or artisan necessary to enable him to
carry on his trade." The contention of the plaintiff is that the
defendant, by renting his barbershop, together with the tools and
implements, to another for an indefinite period, thereby
abandoned his calling as a barber and subjected his tools and
implements to liability for his debts. It is not necessary that
the property should be in use at the time of levy thereon to
entitle

it to exemption. If a mechanic or artisan ceases to carry on his
trade without any intention to engage in it again within a
reasonable time his tools and equipment though exempt while used
by him immediately become subject to execution. If, however, his
suspension of work at his trade is temporary, i.e., if he intends
within a reasonable time to resume his trade, his tools and
implements remain exempt from execution. The question of
defendant's intention, therefore, was a vital inquiry. The
settled rule seems to be that whenever the motive, intention or
belief of a person is relevant to the issue it is competent for
such person to testify directly upon that point whether he is a
party to the suit or not. (Jones, Evidence [3d ed.], § 170, p.
222; Wigmore, Evidence [2d ed.], § 581, p. 1017; 3 Nichols,
Applied Evidence, § 13, p. 2616; 7 Enc., Evidence, p. 596;
Pease v. Price, 101 Iowa 57, 69 N.W. 1120; Cable v.
Hoolihan, 98 Minn. 143, 107 N.W. 967, 116 Am. St. Rep. 348.)
The evidence complained of in the exceptions was no more than a
statement by the defendant as to whether or not he, at the time
of the levy of said execution, intended at some future time to
resume his calling as a barber and the authorities all agree that
he was entitled to testify on that point. His credibility and the
weight to be given to his direct statement on that issue must be
determined by the trier of the facts, in this case the trial
court. Such testimony is admissible no matter how inconclusive,
unsatisfactory or inconsistent it may be as such characteristics
affect only its weight. (Mahon v. Rankin, 54 Ore. 328,
102 P. 608.)
  A further statement of the facts of this case is necessary to
the consideration of the remaining exceptions. The only question
raised by these exceptions is whether or not the evidence
justified the finding that the defendant had not abandoned his
calling. It is undisputed that the defendant was a barber and had
been for a period of fifteen or sixteen years; that he was the
owner of the tools and

equipment levied upon and had, up to about two weeks prior to the
levy, been personally using them in his work; that on the 12th
day of March, 1938, he rented the same to one Ota for an
indefinite period. There was no written agreement between the
defendant and Ota and the undisputed evidence is that no duration
of the term of rental was fixed by the oral agreement and both
the defendant and Ota understood that the defendant could
terminate the agreement at any time. It further appears from the
evidence that the defendant had just moved into a new home which
required his attention for some time to get it into proper shape
for living and that after he rented his barbershop tools and
equipment to Ota he devoted his time to that end and while he was
so engaged the execution was levied.
  The rule adopted by practically all of the courts, and which we
find to be the correct rule, is that exemption statutes such as
we have are to be liberally construed so as to effectuate their
beneficent purposes. As stated in section 4, page 492, 11 R.C.L.,
"while it has sometimes been stated that, as at common law all
property was liable to seizure for the payment of the debts of
its owner, a statute creating an exemption should be strictly
construed, the better and almost universal rule is that such
statutes should receive a liberal construction in favor of the
debtor, in order to advance the humane purpose of preserving to
the unfortunate or improvident debtor and his family the means of
obtaining a livelihood and thus prevent him from becoming a
charge upon the public." See also Hills v. Joseph, 229 Fed.
865 (9th C.C.A.), where it is said: "The rule of construction
applicable to exemption statutes is the most liberal known to the
law." In Caswell v. Keith, 12 Gray's (Mass.) 351, a tinsmith
had given to another an agreement of sale of his tools and
engaged in another business. The artisan was permitted to show
that the agreement of sale was intended

as a mortgage, that the diversion from the prosecution of his
trade was temporary and that he intended at some future date to
resume his trade. Applying the liberal rule of construction, the
court sustained a verdict finding the tools to be exempt.
  Much longer suspension of the prosecution of a trade or calling
has been held to fall short of showing an intention to abandon
the calling which gave exemption to the property. In Pease v.
Price, supra, at the time of the levy the debtor had not been
engaged in his occupation of farmer for nearly a year, had moved
to town and was employed as a barkeeper in a saloon and had
advertised some of his property for sale, yet the court held that
this did not show an abandonment of his calling as farmer. In
Van Lue v. Wahrlich-Cornett Co., 12 Cal. App. 749,
108 P. 717, the defendant had not been engaged in farming for a period
of eighteen months prior to the levy and during that period had
earned his living by teaming. In order for the property involved
in that case to be exempt it must be property owned for the
purpose of carrying on the calling of a farmer but the court, in
giving the plaintiff the benefit of every reasonable inference
and construction deductible from the evidence, concluded that he
in good faith intended to resume farming and therefore held the
property levied upon exempt from execution. (See also Harris v.
Haynes, 30 Mich. 140; State Ex Rel. McKee v. McNeill,
58 Wash. 47, 137 Am. St. Rep. 1038.)
  The only case cited by the plaintiff in support of his
contention that the renting of said tools and equipment
constituted a waiver or loss of the exemption claimed by the
defendant is Cable v. Hoolihan, supra. In that case the
debtor was a butcher and meat cutter by trade and was the owner
of and had been using certain tools necessary to carry on his
trade. Just prior to the levy of an execution upon said tools he
leased the same to a copartnership for a

term of two years with an option to purchase the same, at a price
named, within one year from the date of the lease and he engaged
in another calling, that of a traveling salesman. The lessee took
possession of the tools shortly before the levy of the execution.
The debtor testified that it was his intention at the time of the
execution of the lease to resume possession of the tools at a
future time and continue in the exercise of his trade and that he
had abandoned his trade only temporarily. The court, however,
found that the nature of the transaction between the debtor and
the lessee of his tools was inconsistent with that intention and
conclusively showed an abandonment of his trade. That is very
different from the situation confronting us, however. Here the
artisan, like the artisan in Cable v. Hoolihan, supra, had
rented his tools and equipment to another but unlike the artisan
in that case, the artisan in this case had not engaged in another
calling and he had the power to resume possession of his property
at any time. The defendant has testified that he had no other
means of making a living and that it was his intention to resume
possession of his tools and equipment and again engage in his
regular calling. The plaintiff relied entirely upon the fact that
the defendant had rented his barbershop tools and equipment to
another on a month-to-month tenancy with no definite term to show
that the defendant had abandoned his trade or calling. Those
facts are not, in our opinion, sufficiently inconsistent with the
defendant's statement of his intention to resume possession of
his tools and equipment and again engage in his regular calling
to justify this court in overriding the finding of the trial
court that the renting of said property was temporary and that
the defendant had no intention of abandoning his calling as a
barber. Without overriding the findings of fact made by the trial
judge it is clear that the conclusion that said property was
still exempt from execution must stand.
 
  The only other exception presented is to the taxation of costs
of the appeal against the plaintiff. The correctness of the bill
of costs which was taxed against the plaintiff was admitted by
counsel for the plaintiff by written endorsement on the
defendant's bill of costs and since the defendant prevailed on
the plaintiff's appeal to the circuit court we see no reason why
the costs should not be taxed against the plaintiff.
  All of the exceptions being found without merit, the same are
overruled.