Bissen v. Fujii , 51 Haw. 636 ( 1970 )

OPINION OP THE COURT BY

ABE, J.

Plaintiff, Naomi D. Bissen, and defendant, Chiyoko Fujii, were involved in an automobile accident at an intersection in the City of Honolulu on November 12,1966. An action was filed by plaintiff against defendant in the First Circuit Court on July 25, 1968. Defendant in her answer raised the defense of contributory negligence. Plaintiff’s motion to strike the defense on the ground that comparative negligence and not contributory negligence was the law of this jurisdiction was denied and plaintiff was allowed to take this interlocutory appeal from the order denying the motion to strike.

In Loui v. Oakley, 50 Haw. 260, 265, 438 P.2d 393, 397 (1968), this court stated in a footnote that it may be time to reconsider the judge-made rule of contributory negligence, citing Maki v. Frelk, 85 Ill. App. 2d 439, 229 N.E.2d 284, 286 (1967), wherein the Illinois appellate court espoused the doctrine of comparative negligence in place of contributory negligence.

It is interesting to note that the Illinois Supreme Court reversed the ruling of the appellate court in Maki v. Frelk, 40 Ill. 2d 193, 239 N.E.2d 445 (1968). The court refused to replace the doctrine of contributory negligence with the rule of comparative negligence and stated at page 196: “such a far-reaching change, if desirable, should be made by the legislature rather than by the court.” It went on to say that it considered the legislature to be manifestly in a better position than the court to consider the numerous problems involved in the adoption of the comparative negligence doctrine.

Our legislature, in the 1969 session, enacted a comparative negligence statute, HRS § 663-31, which became effective on July 14,1969. The statute is not applicable to this suit under a provision reading that it “shall not be retroactive and shall affect only those claims accruing after its effective date.”

The sole issue before us is whether the doctrine of contributory negligence or comparative negligence should be applied in this case.

At the time the claim for relief in this action accrued on November 12, 1966, the rule of contributory negligence was the recognized law of this jurisdiction. In Loui v. Oakley, supra, decided on March 1,1968, a footnote implicitly acknowledges this. Also as late as June 7, 1968, both the majority and dissenting opinions in Young v. Price, 50 Haw. 430, 442 P.2d 67 (1968) recognized the doctrine of contributory negligence to be the rule of our jurisdiction.¹

Article III, Section 1 of our State Constitution vests the legislative power of the State in the legislature. The legislative power has been defined as the power to enact laws and to declare what the law shall be. Gas & Electric Sec. Co. v. Manhattan & Queens Traction Corp., 266 F. 625 (2d Cir. 1920); People v. Puckett, 324 Ill. 293, 155 N.E. 319 (1927); Browne v. City of New York, 213 App. Div. 206, 211 N.Y.S. 306 (1925), aff’d, 241 N.Y. 96, 149 N.E. 211 (1925). Under this power the legislature also has authority to enact statutes to modify or change, for the future, common law as may have been established by decisions of courts. People v. Grand Trunk Western R.R., 3 Mich. App. 242, 142 N.W.2d 54 (1966); S. H. Kress & Co. v. Superior Ct., 66 Ariz. 67, 182 P.2d 931 (1947). Certainly, a legislative enactment adopting the doctrine of comparative negligence in place of the common law rule of contributory negligence is strictly within the legislative power. The act in no way attempts to interfere with the judicial functions and no one has questioned its legality as an unconstitutional encroachment of the judicial branch of government.

We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.

Stuart M. Cowan (Creenstein & Cowan of counsel) for plaintiff-appellant. Herbert K. Shimabukuro (Idbkuman} Shimabukuro é Ventura of counsel) for defendant-appellee.

Although the courts frequently venture into judicial law making where there are gaps in substantive law, particularly in the field of torts, once the legislature has acted, it is not for us to evaluate the wisdom of legislative action, including the determination regarding retroactive or prospective applicability. Even Professor Fleming James, Jr., co-author of Harper and James, The Law of Torts (1956), and who is one of those “who accept or welcome the present regeneration of judicial law making in the field of torts,” states: “All concede that it is proper legislative function to make and change the law and that the courts should always respect the exercise of this function by a coordinate branch of government.”²

It should be remembered that though this court makes law on a case-by-case method, it is not a legislature. Further, at this time, we should not engage in “wholesale” legislation such as the adoption of the doctrine of comparative negligence in place of contributory negligence. Such act on our part may frustrate the trial courts in their attempt to solve a countless number of questions and problems with which they will be faced.

The statute is effective for tort claims which accrued after July 14,1969, and to adopt the doctrine of comparative negligence for this case would create unnecessary and unwarranted confusion in the law. We should use judicial restraint and not leave any implication that we are trying to “outdo” the legislature.

Affirmed.

1 The two questions decided by tbis court: (1) admission of demonstrative evidence and (2) the refusal of the trial court to give instructions requested by plaintiff were on the sole issue of contributory negligence of the plaintiff as a defense. Justice Levinson wrote the dissenting opinion, joined by Justice Marumoto, for the affirmance of a judgment in favor of defendant which denied recovery to plaintiff on the defense of contributory negligence.

2 Fleming, Comment on Maki v. Frelk, 21 Vand. L. Rev. 891, 893 (1968).