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TTVgl' WTJflf'T,'' ;r"
EVENING nUUET!N, HONOLULU,-. TfjHj.'TlUmSDAY, OCT. 13, 1910.
for Infanta and Children.
Physicians Prescribe Castoria.
ASTORIA has mot with pronounced' favor on tlio part of physicians,
pharmacejtlcal societies and medical authorities. It h used by physicians
with results mot gratifying. Tho extended uso of Castoria Is unquestionably tlio
result of Mirco facts: 1st, Tho Indisputable evidence that It Is harmless j 2nd,
That it not enly allays stomach palnr and quiets tlia nerves, but assimilates tho
food', 3rd, It Is ta agreeable and perfect substitute for castor oil. It is absolutely
safe. It does not contain nny opium, morphine, or other narcotlo nnd does not
stupefy. It is unlike Soothing; Syrups, Dateman's Drops, Godfrey's Cordial, etc.
This is a-good deal for a medical journal to say. Our duty, however, is to expose
danger and record tho means of advancing health. The day for poptoningdnno
cent children through greed or Ignorance ought to end. To our knowledge," Cos
lOfla Is a remody which produces composure aim health, by r. gnl.itlug the
styttem not by stupefying It and our readers aro untitled to the Information.
time Journal of lltalth,
loar Csstorls stands flrit In Iti elss. In mi
ttit) jears of pracUc I can say I neTtr hire (sand
tnjtLUg Unit so filled the place."
WllLM I1H.HOHT. M. D.,
"I hire need jronr Castoria In the cue of m; own
baby end find It pleasant to takr, and hive obtained
excellent reanlu from 111 um."
. 6. A. Btxiunin, M. D
. Philadelphia, ra.
" I tax pleasure In recommending jrcmr Csstorls,
haflng recommended ita use In man InaUou:, and
eonalder It the beet lataUre that conld be need,
upedallr for children.'
HiTHaxm E. Kuo, M. D., St. Louie, Mo.
Children Cry for Fletcher's Castoria.
In Use For Over "3 0 Years.
v4t C!ilwi . HI .
I h.tj u. 1 TiMr CalorN i.i fooitl It at
excellent re.iuOx In mj lni.bo.d and prlr.tu
practici t(.r ujui jearr. Tin rorjtUlaltirxrcllciu
U. J. Tan. SI. 1) ,
"I find jtrar Castoria to lx a tundard Jamil;
remedj. Jt le tha beAt thine for Infants and chll.
dren I hare crer known and I recommend !u"
K. E. Kmuumok, SI. n.,
, Omaha, Neb.
"Daring daring the past U jrrarc prescribed ronr
Castoria for InfanUle stomach dlsonlera, I most
heartlljr commend lis nee. The formula contains
nothing deleterious to the most delleateof children."
J. II. Elliott, SI. CM Ken Tork Cnj.
Cut Price necessitated by arrival
of big shipment of Trunks "on
Have no storage room, so sacrifice
regular selling prices.
YEE CHATU CO.,
Cor. Bethel and King Sts.
' Stay Far Away From
Buhao burned in one of these is
without unpleasant odor
75 CENTS 75 CENTS 75 CENTS
Benson, Smith & Co.,
1 FORT AND HOTEL STREETS
Honolulu Institute for Physiotherapy
CORNER BERETANIA AND RICHARDS STREETS P. 0. BOX 440
& Open From 8 A. M. to 7 P. M., Except Sunday
at - i
All kinds of Electric Light Buths (blue, red, white and violet),
Steam Baths; Turkish. Russian, Pine Needle, Nauheim. Carbonio Acid
and Oxygen, or Medical Baths j Massage, X-Rays and High Frequency,
Special attendant for ladies
ALEXANDER YOUNG HOTEL LAUNDRY
All Special Work roturnccf In 0110 (lay, Guarr
, antepjirst class work. -
Throughout' Maui Precincts
Crowds Hear the Truth of '
Land Laws Matter.
(BHTl.il nil 1 1 il I n Crrres.Kindcnrp.)
WA1MJKU, JIiuil, Oct. II. Delo.
gnlo Kaluiilaiianlj, accompanied ty
Hcv. 8. J.. Ucslia of Itllo, arrived In
Wtijlukii from Hawaii cr the steam
er Mauna Kea last Friday nlglit. Tlio
Uolegnte was put up nt Hon. and
Mrs. A. N, Kepolkal's residence,
while the "Hawaiian Spurgcon" was
entertained nt Assessor mid Mis. J.
On 'Saturday afternoon tho Dele
gate nnd Ilev. Desha spoko at the
Wnlchu church to about sixty vol
crs. It was u good meeting, nnd
Mr. Desha "was at his best. Tho
speech of tho Delegate was well re
ceived by his Hawaiian hearers.
On Saturday evening the Delegate
and his tmellng political worker
spoko again to a largo gntherlug ou
Market street. Notwithstanding It
had been quite showery during tbo
day, when It was noised nbout that
Kuhlo was In town and that he was
to undo the harm scattered broadcast
by I. Ink MiCandlcs only a week be
fore), hundreds turned out-to hear
Thu 1'rlnce wns preceded by Coun
ty Attorney D. II. Case, candidate
for reelection; Clem Ciowell, who Is
running for sheriff, nnd C. Lake, tho
Wall ii I; u candidate for supervisor.
Tho county ollKlals merely mado
their Initial appearance In tho pres
ent campaign.' As each candidate
took Ills seat nfter making his an
nouncement, each time tho evening
air wns rent with loud hurrahs. Hut
when tho Prince made his uppenr
nnce thero was Immediate sllenco to
hear him Bpenk on momentous nues
tlons of tho day, especially the pub
lic land question, which groatly con
cerns the people at the present time.
With forceful words he nailed tho
misrepresentation that "Klhval" had
helped pass the land laws In Con
gress, and n conclusion he nsked
why tho necessity of Ellwnl'a mak
ing such a determined fight to be
elected If ho could easlly..help pass
(Jaws JnCongrcss In bis capacity as
)n private citizen, ir no is more uso.
till In that capacity, why, yhongof A
few Democrats who had Imbibed too
freely that tiftorricWcould not re
main silent when they 'heard 111
wat'sjinmo' mentioned, so they made
thelr..prcsenco known Jyst id shor
the Prince that tho Democrats can
show n thing or two to tho, Henubll
cans lu the shape of rowdyism. Hut
It wns of short duration, for the au
dience could not tolerate nny ten
doncy towards disorder.
Tho Prince spoke In Kngllsli to
satisfy tho demands of the English
speaking voters of Wnlluku.
Ilev. Deshn was tho last speaker,
nnd ho kejit tho largo assembly quiet
from tho beginning to tho end. In
eloquent words he pictured to them
tho work of tho Delegate In Con
groFS, nnd then told them how tho
Prluco openeJ his homo at Honolulu
to recelvo tho hundreds, who 'Wero
rnniTftrofl hnmftlpsH liv tho hllhnntc
.... ..,..... .. . ,F
nlncuo fire. Link wns there., too,
but Instead of" kissing babies "ns he
did recently at Kona, nnd seeing'thnt
the homeless wcro made comfortablo,
ho wns promenading the public
streets of Honolulu with ni gun to
se'o that nono of tho homeless should
get nwny. Of the nttltudo of the
two men nt Hint most heartrending
scene, Kuhlo proved himself n bene
factor nnd n lover of mankind bo-
Senntor V. T. Itoblnson was
chairman of ,tho meeting.
On Sunday Delegate Kuhlo. Ilev.
Desha nnd Clem Crowoll wont to Kn
nalo. In the Honuaula district. About
sixty greeted tho travelers nt tho
llttlo church nt Knr.alo. Tho Prlnco
mndo n deep Impression therd, while
Itnv. Deshn caused copious tears to
flow from the oyes of his hearers n
ho related to them how tho Prlnco
had opened his home, yea, his heart,
for tho recentlon of those of his
own people who were In deep dls
Tha sarno afternoon the Prlnco
nnd sulto spoko to n largo audience
nt Pulehu, Kula. Last evening tne
Prince and party spoke nt the Puu
nene clubhouse. The large hall was
filled, n large number of those pres
ent, holng Hawaiian.
This evening the' Prince will speak
nt Pnla, nnd tomorrow evening nt
Wnlhec. On Thursday afternoon
tho party will drive over to Lahalnn,
where Kuhlo will speak prior to em
barking on the Mauna Loa for Ho.
nntiilii that evening.
It Is evident from mo eiunusiun
tic receptions that are being ac
corded the Prlnco nnd party every
where on Maul that tho voters still
remain true to him.
WHY TAKE ANY CHANCES
with some .untried mcdlcino for ill
nrrW, crap'ms. dysonterjfwhen, 'or
in venra Painkiller (Perry Davis')
has been rollovlng iiiillllous of 'cases.
XDWAlip attllMltiLL f.yll. 1IACKFKU) & CO.
LXCKI'TIONH l'MOU CHIUUIT CIIU1IT, KIIKtr CHIUUI1.
Auut'Hi Butkmulb 23, 1010. DtUIILU OcitiutK L 1910.
llAUTWKM,, C.J., 1'KIIIIY AMI DlJ UoJ.T, ,1J.
TiiiAty icrdlcf evMenie In tupport ofptalntlU'a habits.
A verdict Is not set asldo because evident e wn3 rejected or
rtrticlc out If It afterwards went before tho Jur.
It Was not error to refuse to allow the plaintiff to nik his witness
whether he was nt drinking man or not nt the time nt the acci
dent. Tsui. instructions facti for the jurv, tatc for Hie cowrf court not
rcqulral to summarize facts tn xchlch instructions are to
' Instructions Were properly refused Involving n finding by tho
Jury of defendnnt's liability or n finding by the court that tho
plaintiff was net negligent.
It Is not the duty of tho court to refer rpeclflcally to facts In
tho case to which lu Instructions nre Intended to'apply.
Tbial irufrrr vojuntary submission of personal examination.
The plaintiff waived his exception to an order that ho be ex
nmlned by a physician by voluntarily submitting his person fur ex
nmlnatlon by the physician In presence of the Jury.
OPINION OK TUB COUIIT I1Y HAnTWELU C.J.
TIip plninlilT brought mi ncliim on tlio case to recover dam
nges for injuries tolliis pewm received in tlio defendant's em
ploy, resulting from the lirenking of n defective rope iwd in
liointing from tlio lipid of the fdiip on which lie wns employed
two trucks which had lxcn tihed in diseliiirging rnrgo. Tlio
d'tniN of the en?, a shown nt the former trial in which a. di
rected verdict wn Mil nsiile, nppeur in 20 Haw. .'I.". A verdict
for the defendnnt vm rendered nt the sooond trinl nnd tlio
plniiitilT hriug'i exceptions to rulings upon evidence, to grant
ing the Jefenilnnt's motion tluit the pluintifT's person bo ex
iimined hy n phynielnii, to eertnin'iiiRtruetiont refuped nnd to
others which were iven, to' the verdict n eontrnry to lnw, thu
evidence nnd the wejght of evidence, nnd to the refuinl of lii
motion for a new trial Wed on the same, grounds.
The verdict was not unsupported by evidence: On the con
trary, thero wns evidence, nnd more than n scintilla, in support
of it which in conformity with the established practice of this
court requires the vcidiet to siaud unless there was prejudicial
error in the rulings or intructions or in requiring the plaintiff
to submit to a personal examination.
Exceptions were taken to the striking out of certain answers
made by witnesses 'for the plaintiil on the grounds that they
were inference, hereby, irresponsive to tho questions, not ap
ptopriiito for re-diieot examination or immaterial, and to tho
rejection of certain offers of evidence by tho plaintiff on tho
ground that the offer was not sufficiently specific, failing to
slate specific facts sought to be shown; but as tho evidence
struck out or rejected was afterwards presented and went to
the jiiry it is unnecessary to discuss whether they wero right
i.r wrong as the plaintiff was not harmed by them. Territory v.
Xohriqa, 10 llnw. 20. This applies to exceptions J, 2, 3, 4, B,
8, Jt, io, 11 and 10.
fn exception 0 a witness for tho plaintiff when asked "What
was the manner in which Tom I'cdro showed tho rope to tho
eaptnin?" answered i"Jt seemed to me he wns showing tho ropo
to, the captain and nt,thc same, time it seemed to me in the way
he was speaking that the ropo was rotteji, unfit to use." Thq
answer was struck out ns not responsive and as giving tho wit
ness' opinion. Tho witness having' testified .that be did not ro
inemlier that ho understood "any word.srjoken between tho
captain nnd Tom Pedro," the ruling 'was correct.
As no reference to exceptions 7, 1!!, 14 and 15 nppears in
the, brief of, either party they nre not to'be taken ns relied upon.
'Exception 12 was.taken to tho refusal to allow tlio plaintiff to
asjc pno of his witnesses whether at-thoHimc 6f tho accident tlio
plaintiff "was a drinking man or not." It is not obvious what
bearing'the fact that tho plaintiff was not n drinking man, if
shown, would hnvo had upon tho case since nt tho most it would
only have affected the amount of damage to which ho would
have been entitled if bo bad received n verdict, and for tbo
further reason that in the alwnco of evidence to the contrary
tho presumption was that his habits wero good.
Tho plaintiff requested tho following instructions, which
"If you find that at tho time of the falling of tho trucks,
tlio plaintiff did not hear tho call to stand from under, if you
,iiud thero was such call,, then tho plaintiff wna not guilty of
contributory negligence." ,
"If you find that nt tho time of tho falling of tho truckd into
the bold, plaintiff was working in tho starboard wing of tho
liold not directly beneath tho open hatch, but on tho starlioard
side of the space in tho hold directly beneath tho hatch, and out
from under heavy bodies fulling through tho hatch, ho wns not
guilty of contributory negligence."
The instructions wero properly refused ns thoy involvo n
finding by the jury of tho defendant's liability or duty which
was u question of law fir the court, and a finding by tbo court
that there wns no negligence in being where tho plajntiff stood
at thu timo off the accident.
Tho plaintiff excepted to tho following instructions, which
were given :
"If you find from tho evidence thnt nlthoiigh tho defendant
may have been guilty of negligenco through its servants con
tributing to produce tlio injury complained of, still if you find
that the plaintiff, was also guilty of negligence proximately con
tributing thereto, the defendant is not liable unless his negligent
act occurred after he beenmo aware of tbo danger to which
plaintiff by hjs own neglect mny have exposed himself."
"If you believe fioiu the evidence that tho danger to which
the plajntiff was exposed was a risk assumed, by him, or if such
danger wns a risk ordinarily incident to his work, or wns a
danger of which he knew, or by tho exerciso of ordinary caro
in the dixahargc of his duties' might have known tbo plaintiff
is entitled to nothing, and your verdict must lio for tho defend
ant." "If you find under the nliovc instructions that plaintiff and
defmdant were both guilty of negligence which contributed to
bring aliout the accident' to plaintiff, then plaintiff cannot re
cover herein, nnd you will find for tho defendant."
"It is the duty of ono engaged in dangerous employment tn
keep a constant outlook for the dangers that IhwI him, but if
be receives an injury liecuuse of n danger to which he is ex
posed or which he bad equal advantages and opportunities with
the employer to know and fully understand, he cannot recover
for nn injury ns a result of such danger."
",If you find that tbci doAhiilnnt fnrnUlicd rei(miably snfn'
tools, nppliancesaud machinery for the work of discharging tho
.cargo, of coal .from the1 bark "Aeolus," and that the defendant
was iirurellnn ncconnt of thoiip'gligcncoof one or more of'liid"
"ii you una iiiat at tne time oi me inning oi mo irucKs,
lnintitf wns working in the hold under or near tho batch and1
lint plaintiff had no duty or liabilityias to selection, oversight,
r charge of the ropes used in hauling out the1 trucks, nnd that
co-workers, then jour verdict must be for tho defendant."
The plaintiff's objection to the instruction is that they aro
a "bald statement of the law without a nummary of tho facti
taken fioiu the case;" wcro "inapplicable Jo the weight of evi-
deuce" and might have milled the jury to niiiapply them and
omit to apply them where thoy were properly applicable, and
thut they ignore the doctrine of "last clear chance." We do not ,
regard it as the duty of a court to refer specifically to facts in
the ease to which its instructions are intended Io apply if not ,
requested to do o. The intructions state the law correctly.
The evidence did not require' further recognition of the "Inst
clear chnncu" than appears in the instructions shown in tho
bill of 'e.coptinij. The entire charge is not brought here nnd
may have further referred to this matter.
Exception 12a was taken to the granting of the defendantV
motion for an order requiring the plaintiff to be examined as
to his physical condition, alleged in the complaint, "by such
physician ami surgeon as the court may think proper, at such
timo and place as the court may appoint." The motion wns
based upon tho atlidavit of tho defendant's attorney of his in;
formation and belief that the plaintiff "was suffering with
tubcrcnlois and that unless he would submit to an cxnmiuiitioii
of his physicul condition the nflluut would be unable 16 procure
expert testimony ns to the extent of the tulicrculosis condition,.
its effect upon the plaintiff's earning capacity or his life ex
pectancy becnuse of it,' nnd (lint the examination was neces
sary in order that the defendant might intelligently defend tho
action. Tho motion, was presented and argued before the trial
nnd denied without' prejudice to its renewal at a subsequent
time during the trial. The plaintiff having rested his case,
after testifying in his own Ixdialf and without offering nny ex
pert testimony ns to his physical condition, the order wns made,
the plaintiff objecting that it "was a violation of his personal
lilierty," that "James It. .Tudd, a physician nnd surgeon duly
authorized to practice and practicing in the Territory of Ha;
waii, nnd having no interest in the suit herein lie and he is
hereby appointed to examine at a time suitable and convenient
to the said .Tudd and to said plaintiff herein, tho said plaintiff
as to his physical condition, the result of said examination, to t
lie established by tho oral evidence of said .Tamqs 15. .Tudd so
far as the samo is competent, relevant and material, to lie used
by either party hereto," The doctor was called by tho defend
ant, and after stating in part what he had observed in the ex
amination, said, "If I had the man stripped I could show very
much better than I could talk alwnt it just what his condition
is." Thereupon the plaintiff's attorney asked the defendant's
attorney, "Have you any objection i" the reply being, "I havo
no objection, let's have it." The pluintiff was then stripped to
tho waist in tho court room and examined by tho doctor wio
showed that the plaintiff had not been injured in the manner,
or to the extent ho had testified for himself. The defendant
claims that this was a waiver of the plaintiff's exception.
Undoubtedly tho defendant did not intend to waive his ex
ception to the order by offering himself for examination but it,
may bo inferred that ho expected to show to the jury that tho
doctor was not cprrect in what he would testify conccrning.iiiiu
and perhaps could convinco the, doctor of thisas ito afterwords
tried to "do in cross-examination. If jio meant to rely 'on his
exception could he consistently, seek in this manner to gain any
benefit fpr himself j isteadof objecting to, the doctor testify
ing or afterward iioyihg) tjint his testimony bo -struck out,
thereby giving the court nu opportunity to reconsider tho order,,
the plaintiff proposed that bis person bo examined in tho pres
ence of the jury. This was inconsistent with relying upon his
exception". It whs held in Union Pacific Railway Go. v. Rots
ford, 141 U. S. 250, 251, 25.'J, a caso like that before us, that
tho United States Circuit Court had properly denied n motion
by the defendant three days before tho trial that the plaintiff
bo required to submit to u surgical examination on the grouud
that "Ko light is ffeld more sacred, or is moro carefully guard
ed, by the common law, than the right of every individual to
tbo k. i s.-ion and control of his own person, free from all re
straint or interference) of others, unless by clear and unques
tionable authority of lavy," and that "no order to inspect tho
body .of a parly in a personal netibn appears to have been made,
or even moved for, in nny of the English courts of common,
lnw, at any period of their history." In Camden and Suburban
liy. Co. V. Stetson, 177 U. S. 172, 174, an action in tho U. S.
District Court for New Jersey to recover damages for injury to
the person of tho plaintiff caused byttho defendant's negligence,
a similar motion was denied on tho ground that the court had,
no power to order tho plaintiff to subject himself to examinn-
tion against his will although there wns a Xew Jersey statute
authorizing it. Tho court held that tho statute applied in trials'
nt common law in United States courts ns Sec. 721 Itevised'
Statutes provided that "the laws of the several States, except
where the Constitution, treaties or statutes of tho United Stales
otherwise require or provide, shall lie regarded as rules of de
cision in trials' at common law in courts of tbo United Slatcn,
in cases in which fhey apply," saying, "There is nd claim made
that the statute violates the Federal Constitution, and wn nre
of opinion thnt such a claim would havo no foundation if
Assuming, but only for tho purpose of this case, that under
liko conditions the rule in the llotuford case would bo obligatory
on this court, wo aro of tho opinion that it docs not apply to tho
circumstances here shown. If the plaintiil was wronged by tho
orjjer it was becatibc of the unjustifiable- invasion of his person
which it authorized, but its .ofo object was to obtain evidence
of his physical condition. As tho samo evidence,- to lie obtained
in tbo samo way, was proposed by the pluintiff, he was not in
fact harmed thereby. That an illegal method of obtaining evi-.
denco does not make it inadmissible is settled in Territory yv
Soya, 20 llnw. 71, 82. If wrong had lieen done to the plaintiff
after ho had voluntarily, subjected himself to examination, it
was a wrong in tluory only. His offer to lie examined waS,
intended to niuko n favorublo impression on the jury nnd if ho,
had succeeded in obtaining a verdict thereby he would hnvo
had no cause to complain of the order. It was not the orden
which was object iomibln to the plaintiff when he txik the ex
ception, but the examination it required. Hy requesting ex
amination he showed as plaiuly'as words could do that ho rin
longer objected to it. 1 f tlio doctor had not examined the plain
tiff, or had not lieen called to testify, tho order if illegal would
have lieen harmless. Upon tho whole the plaintiff's conduct in
this mutter appears to havo been n practical waiver of any
right he may have had to bo exempt during the (rial frqm in
vasion of liis person. , , ' .
Exception1 overruled. " ' "
MAGOOXit- WEAVER, for plaintiff: . ,y '
A. A. WIWE1T nnd C. C. ttlTTlXa l-TJIOMPSON.
CbtiMONS it- WILDER on thoMiriefffiforTdefeudantS