The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-01-06
OPINION OF THE COURT BY DOLE, ]

OPINION OF THE COURT BY DOLE, j.
The plaintiff claimed of the de-
PENDANT $352.40 for damages to his
planning mill on the easterly side of
Alakea street, in Honolulu; in that
the defendant failed to provide suffi-
cient drainage for the surface water
OF the said street, and unlawfully
and wrongfully cut trenches across
the sidewalks of said street, whereby
large quantities of surface water
were caused and suffered to flow
from said street to and upon the
plaintiff 's premises, causing great
injury to the betting, pulleys and
machinery Of said mill, and putting
him to great expense in pumping the
said water therefrom, and causing
him to lose much time in the carry
ing on of his business.
The defendant demurred to the
declaration, and for cause of demur-
rer, said that the complaint does
not state facts sufficient to constitute
a cause Of action" The demurrer
was overruled, and no appeal taken.
At the trial of the case on
the merits, the defendants coun-
sci, at the close of the evidence
for the plaintiff, moved the court to
instruct the jury to find verdict for
the plaintiff, on the grornd mat no
Liability lad .bggensh shown on the part
..ssne defendant, which motion was
overruled and exception noted.
The defendant asked the court to
give certain instructions to the jury,
which the court refused, deeming the
charge already given to be sufficient.
No exception was made to this by the
defendant. The charge, as given,
substantially covered that portion of
the instructions requested by the de-
PENDANT, which it was entitled to
have to go to the jury.
The verdict was for the plaintiff,
which was excepted to by defendant,
and its motion for new trial was
thereafter overruled by the presiding
judge, from which decision excep-
tions were taken to this court. The
grounds of the motion for new trial
were these:-
:. 1. Errors of law occurring at the
trial and duly excepted to by de-
PENDANT.
2. That the verdict is contrary to
the law and the evidence.
3. The verdict is against the
weight of evidence.
At the argument before the full
court the point was raised in behalf
of the defendant that the govern.
ment is not liable for forts. As this
contention had not been made before
in the course of the proceedings, we
have had some doubt whether it can
be made now. But nc objection
having been taken against its CON
sideration by the plaintiffs counsel.
we have concluded to admit it under
the general exceptions to the refusal
of the court to grant the motion fol-
non suit, which was based on the
ground that no liability of defendant
had been shown, and upon the see
ond exception to the refusal of the
court to allow the motion for a new
trial, i. g., that the verdict was con
trary to the law and the evidence.
It is admitted that the government
as such, cannot be sued by private
parties without its consent; and the
question upon this point is merely
whether the consent given by Chap
ter 81 of the Laws of 1888 includes
claims arising from torts as we'll a:
contracts, or is limited to contracts
The second section of said chapter
is as follows: "Whenever any either
Of this kingdom, or other person
shall have claim or claims agains
the Hawaiian Government which
said government shall refuse or neg
lect to satisfy or adjust, it shall bt
competent for such person to bring
and maintain suit or suits agains
said government in any appropriate
court of record of the kingdom fol
the purpose of adjudicating sucl
claim or claims"
The defendant counsel contend
that these words only authorize suits
against the government based OF
contracts, and although the wore
"claim" In the statute is of genera
significance, it is argued on behalf O.
the defendant that it's meaning i!
controlled by Section 1 of the same
act, which provides for bringing
suits by the Hawaiian Government
sin order to collect or recover an.
money or penalty, or to recover or OBJ
tain the possession of any specific
property, real or personal, or to en-
force any other right, except il
respect to criminal prosecutions"
We do not see any necessary con
nection between these two sections o
the law; they might as well and per
haps better have been placed in diff
ferent acts. IL the contention o
the defendants counsel is correc
that the word "claim" in Section
is explained by the more explicit
statement of causes of action In Sec
ton lit would not thereby appear
that actions of tort were excluded, a
the right of action 'to collect or re
cover any money" + i i "or to en-
force any other right" might we'll b'