Bonacon Ex Rel. Bonacon v. Wax

Appellee's petition for rehearing herein rests upon two grounds, both argued in the briefs.

The first is that the specification of error in appellant's brief to the rejection of evidence did not comply with the requirement that "the specification shall state the substance of the evidence * * * rejected" in conformity to appellate rule of court. (Rules Sup. Ct., 36 Haw. 753, rule 3, par. 1 [d].) This ground is untenable and, although not specifically referred to in the opinion of Bonacon v. Wax, 37 Haw. 57, it was fully considered by this court but not deemed necessary of discussion therein due to the situation that on one hand strict compliance with the requirement of the rule has never been exacted and on the other reasonable and substantial compliance therewith was clearly evidenced in appellant's brief by its quotation of the full context of the evidence rejected immediately following a restatement of the error specified thereto.

Nor can the second be maintained. It contends that this court, in coming to the conclusion that the trial judge in prejudice to the appellant erroneously excluded statements of the appellee made at the scene of the accident, overlooked and did not consider the statements either as relating to the willingness of the Star-Bulletin to care for the appellant or as not being susceptible to a construction consonant with appellee's admission of culpability. This constitutes an assumption not based on fact and a hearing thereon would tend to reopen the argument of the briefs on points settled by the opinion of this court.

Such being the character of its grounds, the petition is found to be without merit. Argument thereon, not being desired by any concurring justice, therefore will not be permitted.

The petition is denied.