POHNPEI SUPREME COURT
TRIAL DIVISION
Cite as Koike v. Ponape Rock Products,
3 FSM Intrm. 57 (Pon. S. Ct. Tr. 1986)

[3 FSM Intrm. 57]

FELIX KOIKE and SUSA KOIKE,
Plaintiffs,

v.

PONAPE ROCK PRODUCTS, INC.,
JACK ADAMS, PONAPE AGRICULTURE
AND TRADE SCHOOL,
Defendants.

WALERIANO SHAM and SABINA SHAM,
Plaintiffs,

v.
 
PONAPE ROCK PRODUCTS, INC.,
JACK ADAMS, and YVETTE ADAMS,
Defendants.

CIVIL ACTION NO. 7-83

CONSOLIDATED, TRIED AND
DECIDED TOGETHER

OPINION
 
Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
November 5, 1986

APPEARANCES:
          For the Plaintiffs:         Robert L. Keogh
                                                Attorney-at-Law
                                                P.O. Box GZ
                                                Agana, Guam 96910

          For the Defendants:    Paul Lawler
          (Jack Adams/PRP)     Attorney-at-Law
                                                P.O. Box GZ
                                                Agana, Guam 96910

          For the Defendant:      Edwin Rauzi
                    (PATS)               State Attorney
                                                Pohnpei State Government
                                                Kolonia, Pohnpei  96941

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[3 FSM Intrm. 58]
 
HEADNOTES
Courts; Custom and Tradition
     The Pohnpei State Supreme Court may look to Pohnpeian customs and concepts of justice when there are no statutes governing the subject matter, but it may also draw from common law concepts when they are appropriate.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 64 (Pon. S. Ct. Tr. 1986).

Corporations - Joint Enterprise
     A project that has a number of acts or objectives for a limited period of time and is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise, is a joint enterprise.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 65 (Pon. S. Ct. Tr. 1986).

Torts - Negligence
     The common law definition of negligence, which includes the failure to use such care as a reasonably prudent person would use in a similar situation, is consistent with the Pohnpeian concept of civil wrong.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 66 (Pon. S. Ct. Tr. 1986).
 
Torts - Contributory Negligence
     An employee who is performing a difficult task in one way and is given contrary instructions by his employer and must be mindful of his employer's instructions or face a possible reprimand is not guilty of contributory negligence.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 66 (Pon. S. Ct. Tr. 1986).

Torts - Negligence;
Corporations - Joint Enterprise
     The Pohnpei State Supreme Court will apply an English principle to the situation of a joint enterprise such that when parties to a joint enterprise, or their agents, perform work on another man's property and cause damage to the other man or his property through failure to exercise due care, then they are liable.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 67 (Pon. S. Ct. Tr. 1986).

Torts - Contributory Negligence;
Custom and Tradition
     The common Pohnpeian custom of assisting a person in need should not be dispensed with in order to allow the defense of contributory negligence or assumption of risk to be raised.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 67 (Pon. S. Ct. Tr. 1986).

Torts - Contributory Negligence
     Conduct on an employee's part, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to

[3 FSM Intrm. 59]

conform for his own protection, constitutes contributory negligence.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 67 (Pon. S. Ct. Tr. 1986).

Torts - Assumption of Risk
     Assumption of risk typically involves one of the following situations:  (1) plaintiff has given his consent in advance to relieve defendant of an obligation of conduct toward him, and to take his chances of injury front known risk arising from what defendant is to do or leave undone, (2) plaintiff voluntarily enters into a relation with defendant, with knowledge that defendant will not protect him against the risk; (3) plaintiff is aware of a risk already created by defendant's negligence, but proceeds to encounter it by voluntarily taking part even after the danger is known to him.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 67-68 (Pon. S. Ct. Tr. 1986).

Torts - Negligence - Duty of Care
     In a jurisdiction like Pohnpei, where individual and economic development is beginning to take place and people are not quite sophisticated about the uses or proper handling of certain machinery or equipment introduced into the community to support such development, the procurer, user, owner, or seller of such equipment or machinery must take precautionary measures to educate people, either through written or oral explanation, about the proper handling, operation or storing of such equipment or machinery, and to inform them about the harm that might result if such equipment or machinery is not properly handled, operated or stored.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 68 (Pon. S. Ct. Tr. 1986).

Torts - Negligence - Nonfeasance
     An employer who recognizes the potential danger of a work situation, but who fails to take steps to reduce the danger or to warn his employees of the danger, is guilty of nonfeasance and negligence.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 69 (Pon. S. Ct. Tr. 1986).

Torts - Negligence - Respondeat Superior
     A corporation and its shareholders are liable for the wrongful acts of their employees under the doctrine of respondeat superior.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 70 (Pon. S. Ct. Tr. 1986).

Corporations - Liability
     Although many family-incorporated enterprises commingle family and business affairs, the Pohnpei Supreme Court will not make a family's personal assets available to satisfy a judicially mandated monetary award because there is still limited knowledge of business laws in Pohnpei. Koike v. Ponape-Rock Products, Inc., 3 FSM Intrm. 57, 70 (Pon. S. Ct. Tr. 1986).

Torts; Custom and Tradition
     According to the Pohnpeian view of civil wrongs, if one damages another's property, he must repair or replace it; if one injures another person, he must apologize and provide assistance to the injured Person and his family; if one kills another person, he must provide the assistance that the victim would have provided and he may have to offer another person to take the

[3 FSM Intrm. 60]

place of the victim in his family.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 70-71 (Pon. S. Ct. Tr. 1986).

Torts - Damages
     To determine damages in a personal injury case, the Pohnpei Supreme Court will consider the victim's loss of income, as well as his inability to provide support through fishing and farming as a result of his disability.  To determine the total loss of income, the Court will assume that income would be earned until the age of sixty, which is the mandatory retirement age for government employees, though not for private employees.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 73 (Pon. S. Ct. Tr. 1986).

Torts - Damages - Pain and Suffering
     The Pohnpei Supreme Court recognizes pain and suffering as a principle element of damages in personal injury cases, but because there is no fixed formula to determine the monetary amount, the Court has to use its  discretion.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 73 (Pon. S. Ct. Tr. 1986).

Torts - Damages - Loss of Consortium
     To determine a monetary value for loss of consortium, the Pohnpei Supreme Court will consider the social structure of the society and the extended family system, whereby other members of the family can be expected to provide some, albeit occasional, assistance.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. S. Ct. Tr. 1986).

Torts - Damages; Custom and Tradition
     The Pohnpei Supreme Court declines to adopt the "collateral source" rule, according to which alternative sources of income available to a victim are not allowed to be deducted from the amount the negligent party owes, because it does not want to discourage customary forms of family restitution. Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. S. Ct. Tr. 1986).

Torts - Damages
     Apportionment of fault among several defendants in a personal injury case must be based on the Pohnpeian concept of "kaidehn peid sipal ieu dihp," which requires each wrongdoer to bear the consequences of his or her own fault.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 75 (Pon. S. Ct. Tr. 1986).

*       *        *        *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
     These are personal injury actions brought in the former Trust Territory High Court to recover damages for personal injuries sustained by plaintiffs Felix Koike and Waleriano Sham as a result of electrical shock injury caused by defendant Jack Adams and his co-defendants as will be discussed later.  Plaintiffs Susa Koike and Sabina Sham respectively joined in the complaints seeking damages against the defendants for loss of consortium.  These cases were transferred to the Pohnpei Supreme Court pursuant to United States

[3 FSM Intrm. 61]

Secretarial Order 3039 by the Trust Territory High Court on March 20, 1984.

     The negligent act or series of acts complained of in both actions arose out of the same incident, and therefore, these cases were consolidated, tried and decided together.

I.  The Parties
     1.     Plaintiff Felix Koike is a Pohnpeian citizen and resident of Nett Municipality. He is married to plaintiff Susa Koike and has five children.  Up to November 5, 1981, plaintiff Felix Koike was employed by defendant Jack Adams of Ponape Rock Products, Inc., as a heavy equipment operator.  At the time of the incident resulting in this action plaintiff Felix Koike was 31 years old, having been born on June 14, 1946.

     2.     Plaintiff Waleriano Sham is a Pohnpeian citizen and resident of Madolenihmw.  At the time of the incident, Waleriano Sham was 40 years Held, having been born on February 6, 1941.  He is married to plaintiff Sabina Sham and they have an adopted daughter.  On November 5, 1981, Waleriano Sham was an employee of Ponape Agriculture and Trade School as a welder.

     3.     Defendant Jack Adams is a naturalized Trust Territory citizen having his legal residence in Pohnpei.  He is married to defendant Yvette Adams.  Jack Adams functioned as the manager of defendant Ponape Rock Products, Inc. and ran the day-to-day operations of the company.

     4.     Defendant Yvette Adams, the wife of defendant Jack Adams, is a citizen of Pohnpei and was the principal stockholder in the Ponape Rock Products, Inc. (hereinafter PRP), holding 1,000 of 1,100 shares issued by the corporation.  The remaining 100 shares were held by two other Pohnpeian men, namely Martani Lipai and Tomas Peters, each holding 50 shares.  Both Martani Lipai and Tomas Peters had since died and no successors had been named.

     5.     The defendant PRP was organized under the Trust Territory laws with
the above-named individuals as owners and incorporators.  Its principal place of business is in Pohnpei.  The corporation never issued shares, was never capitalized, never held shareholders' meetings, never had a Board of Directors or Directors' meeting and essentially never observed corporate formalities.  Jack and Yvette Adams personally assumed debts of the corporation and essentially disregarded the corporate entity to such an extent that the corporation was indistinguishable from themselves.

      6.     Defendant Ponape Agriculture and Trade School is a corporation duly
chartered under the laws of the Trust Territory of the Pacific Islands, having its principal place of business in Madolenihmw, Pohnpei State.  Father James Stehr, not named as a defendant, Was its Director during the time that the incident occurred.

[3 FSM Intrm. 62]

II.  Facts
The Joint Adventure
     1.     In late 1980 or early 1981 defendants Ponape Agriculture and Trade School (hereinafter PATS), through its Director Father James Stehr, and Jack Adams negotiated an agreement whereby PATS was to give a lowboy trailer and a tractor (having a value of $4,000.00) to Jack Adams, and in turn Jack Adams was to give to PATS a barge partially completed, plus welding materials (valued at $9,000.00). The barge was located on Etscheit's land which was under the control of PRP and the Adams.  The agreement was reached verbally by PATS through its director Father James Stehr, and Jack Adams, manager of PRP; incidentally, the lowboy trailer and tractor had been given to Jack Adams prior to the negotiations of the barge.  As the agreement was reached, it became apparent that work to complete the barge before it could be launched into the water had to be done where the barge was, to wit, the area used by PRP.  Further arrangement was made by the parties providing that PATS was to send its welder (plaintiff Waleriano Sham) and three other men to work on thebarge.  Jack Adams provided technical skill, including welding materials and equipment plus the services of his heavy equipment operator, the plaintiff Felix Koike, to work on the barge project.

     2.       For several months before November 5, 1981, employees of defendants
Jack Adams and PATS worked together on the barge construction cleaning, bailing water out, removing dust and doing welding work.  At a point in this process it was recognized by Jack Adams and Father James Stehr that further work to complete the project could not be done unless the barge was turned over.

     3.     Several times before November 5, 1981, Jack Adams and Father James Stehr discussed the task of turning the barge over, each recognizing that there were high tension wires passing overhead which contained, to borrow Father Stehr's words, "deadly force."  The existence of the electric wires severely complicated the task and the wires presented a peculiar risk of serious bodily injury to any person engaged in the task of turning the barge over.  In spite of the perceived and recognized risk, Jack Adams and Father James Stehr, each exercising equal control over the project, decided to go forward and attempt to turn the barge over.

     4.     On November 5, 1981, plaintiff Felix Koike, defendant Jack Adams, and plaintiff Waleriano Sham and other employees of PATS reported to the work site on the land owned by the family of defendant Yvette Adams (the Etscheit's land), upon the instructions of their respective employers.  Plaintiff Felix Koike was instructed by defendant Jack Adams to get the equipment in place and be ready to perform the task of turning the barge over, which Felix Koike  did.  Defendant Jack Adams, after giving the instruction, left the scene to attend to some other task of his own.  Plaintiff Felix Koike began the process of turning the barge over by lifting an I-beam from underneath the barge with a boom crane, intending to remove the I-beam to place it on the side of the barge.  While undertaking this process, defendant Jack Adams returned to the

[3 FSM Intrm. 63]

scene and took control of the boom truck crane and began lifting the I-beam.  As lifted, the I-beam began swinging about and was unbalanced, and defendant Jack Adams instructed plaintiff Felix Koike to take hold of the end of the I-beam to balance it and to guide it to one side of the barge to be placed on the ground. Plaintiff Waleriano Sham Immediately ran to and held onto the other end of the I-beam to help balance and to guide it.  During this process Jack Adams moved the crane and the boom came in contact with the high tension wires running overhead, thus transmitting strong electric currents through the boom crane, then to the I-beam onto which the plaintiffs were holding, thus shocking both plaintiffs.

     5.     As a result of the electrical shock received, plaintiffs Felix Koike and Waleriano Sham were severely injured, spent several months in the hospital, endured severe pain and suffering, have permanent serious injury and are not able to be gainfully employed as they were before their injury, and hence are unable to support their families and to participate in the customary Pohnpeian community and social affairs, as is expected of a normal male citizen of Pohnpei.  As a result of the injuries suffered by plaintiffs Felix Koike and Waleriano Sham, plaintiffs Susa Koike and Sabina Sham have lost the affection, society, consort and support of their husbands.

III.  Plaintiffs' Claims
     1.   Plaintiffs Felix Koike and Susa Koike claim damages against all defendants jointly and severally as follows:

     a.     $250,000.00 for severe personal injury and suffering sustained by Felix Koike;

     b.   $250,000.00 for loss of earning capacity and past and future wages;

     c.     $ 50,000.00 for loss of consortium as to Susa Koike.

            $550,000.00

     2.   Plaintiffs Waleriano Sham and Sabina Sham claim damages against defendants Ponape Rock Products, Inc., Jack Adams and Yvette Adams, jointly and severally as follows:

     a.     $250,000.00 for severe personal injury and pain and suffering;

     b.     $250,000.00 for loss of earning capacity, including past and future wages;

     c.      $ 50,000.00 for loss of consortium as to Sabina Sham.

             $550,000.00

IV.  Defenses
     Defendant PATS advanced the affirmative defenses of

[3 FSM Intrm. 64]

     (i)   Failure to state a cause of action;

     (ii)  Assumption of risk;

     (iii)  Contributory negligence;

     (iv)   Denial of supervision and control over barge construction;

     (v)   PRP and Adams are obligated to indemnify PATS.

     Likewise, defendant PRP and Jack Adams advanced the defenses of contributory negligence, assumption of risk, and that the completion of the barge was the responsibility of defendant PATS.  They, however, urge plaintiffs to mitigate their damages by filing claims with the Social Security Office for insurance coverage.

V.  Analysis and Conclusion of Law
     I welcome the arguments of counsel urging that consideration of this case takes into account the common law of torts as developed in the United States and printed in the Restatement (Second) of Torts.  In addressing an issue like this one, the Court must keep in mind the judicial policy mandated in our State Constitution which reads:

The decisions of all courts and adjudicatory bodies shall be consistent with this Constitution and the concepts of justice of the people of Pohnpei.

Pon. Const. art. 10, 11.  A similar constitutional mandate for the FSM National Court system provides:

Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia.

FSM Const. art. XI, 11.

     These constitutional provisions aim at substituting Pohnpeian (Micronesian) customs and concepts of justice as the source of law when and where there is no statute regulating or governing a given subject matter.  These constitutional mandates, however, do not restrict our court system from considering the Restatement (Second) of Torts or the laws of other common law countries as advisory sources for our decisions.  What these constitutional provisions provide is that our court system is not bound to apply the common law as printed in the Restatement.  We, however, will have to analyze the common law with great care to ensure that its application to legal or customary issues as developed in our jurisdiction does meet the Pohnpeian concept of justice (kopwung loal en mehn Pohnpei).

     Paragraph 1 of the Facts clearly shows that a joint enterprise or a joint adventure was created to work on and to complete the barge construction

[3 FSM Intrm. 65]

project, so that the completed barge could be delivered to PATS and the balance of the payment promised and due by PATS in the amount of $4,000.00 could be made to Jack Adams.1  A "joint enterprise," according to the common law definition, is:

something like a partnership, for a more limited period of time, and a more limited purpose.  It is an undertaking to carry out a small number of acts or objectives, which is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise.  The law then considers that each is the agent or servant of the others, and that the act of any one within the scope of the enterprise is to be charged vicariously against the rest.

W. Prosser, The Law of Torts 475 (4th ed. 1971) (footnote omitted).  The barge construction/completion project was jointly carried out by PATS' employees and Jack Adams and his employees.  It is therefore a joint enterprise.

     On the morning of November 5, 1981, defendant Jack Adams organized his work force, including that which was provided by PATS, to undertake the task of turning the barge over.

     Jack Adams instructed plaintiff Felix Koike to get the boom crane truck in place and be ready to begin the work.  No mention of the risk of bodily injury by the electrical wires hanging overhead was made to the crew by Jack Adams.  He then disappeared to attend to other tasks.  When Jack Adams was away, plaintiff Felix Koike got everything ready as instructed and began theoperation of lifting an I-beam from underneath the barge with the boom crane.  The effort here was to lift the I-beam off from underneath and replace it with empty drums for support, thus to enable welders to undertake welding work required at the bottom of the barge.

V-1.  Negligence of Defendant Jack Adams
     Before addressing the issue of negligence, I need to examine the meaning of negligence as that term is used in the common law countries, and to determine whether the common law definition is applicable or similar to the Pohnpeian understanding of negligence. Black's Law Dictionary defines negligence essentially as follows:

[3 FSM Intrm. 66]

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Black's Law Dictionary 930-31 (5th ed. 1979).  I see no difficulty in applying the common law definition to our jurisdiction.  This definition satisfies the Pohnpeian concept of civil wrong when one commits a wrong against another unjustifiably.

     In his testimony, Felix Koike stated that his intention was to lift the I-beam and to place it on his left side because in relation to the location of the boom crane and the electric wires running overhead it would pose no harm if the I-beam were lifted and placed on the left side.  When Jack Adams returned and took over the operation of the boom crane, his effort was to move the I-beam to the right side. This decision and conduct on the part of Jack Adams led to the unfortunate fate of electrocution suffered by the plaintiffs.

     Defendant Jack Adams and PRP argued that plaintiffs were contributorily negligent because Felix Koike was supposed to be serving as a signal man and Waleriano Sham assumed his own risk to get hold of the other end of the I-beam when not instructed to do so.

     The Court notes here that the I-beam, being of steel and iron, 24 x 9 inches and approximately 30 feet long, must be a very heavy object and quite hazardous as well if it fell on Felix Koike.  Given the situation and under the circumstances, I find it quite impossible for Felix Koike or anyone of his caliber to serve concurrently as a signal man and watch the proximity of the boom to the electrical wires and hold onto one end of the I-beam, balancing and guiding it to the right side.  The work area was congested, according to Jack Adams' testimony, and Felix Koike would not be free to move about trying to perform two hazardous tasks at the same time. Felix Koike, in that instance, was subjected to double risks of harm by the act of Jack Adams, and he had to choose which one to attend to, being mindful of his own safety, or facing a reprimand from his employer.  Under the circumstances as is evidenced here I cannot attribute any taint of contributory negligence to plaintiff Felix Koike.

     Likewise, I find no legitimate reason to charge plaintiff Waleriano Sham for assumption of risk or contributory negligence.  The barge construction project was a joint adventure undertaken by PATS employees and PRP employees.

[3 FSM Intrm. 67]

Waleriano Sham was there on the project to perform his part Of the project, not anticipating to get burned by electrocution.  The instruction given by Jack Adams on the morning of November 5, 1981 was that the work crew was to turn the barge over. Waleriano Sham was one of the work crew.  Hence one is an agent of the other and is under the duty to ensure that each and every one of the crew members is safe from bodily harm in the operation of the barge construction project.  To regulate the conduct of each party in a joint enterprise situation like the instant case, or in any other similar situations, I venture to apply the principle laid down in an old English case in which the Court of the King's Bench stated:

The principle is that if a man does work on or near another man or the property of that other man which involves danger to that other man or to his property unless proper care is taken, he is liable to that other man or to his property for damages resulting from the failure to take proper care, and he is equally liable, if instead of doing the work himself, he procures another, whether agent, servant or otherwise, to do the work for him.

Brooke v. Bool, All E.R. Rep. 155 (K.B. 1928).

     When Jack Adams lifted the I-beam by means of the boom crane and the I-beam began swinging, unbalanced, the natural course of conduct that can be expected of both plaintiffs, whether instructed to do so or not, would be to help out in the task being undertaken.  This signaled to Jack Adams to take proper care. Otherwise the unbalanced and swinging 30-foot long, heavy steel/iron object could cause injury to persons or property.  It is customary conduct of a Pohnpeian to come to the aid of another when you see the other is in need.  Your relationship to the other person is immaterial.  This common Pohnpeian custom should not be dispensed with in order to allow the defense of contributory negligence or assumption of risk to take its place.

Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard towhich he is required to conform for his own protection.

W. Prosser, The Law of Torts 416-17 (4th ed. 1971); see also Restatement (Second) of Torts 463 (1964).

     Assumption of risk has been defined and classified into three basic types of situations:  The first situation is where the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.  The second situation is where the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against the risk.  And the
 
[3 FSM Intrm. 68]

third situation is where the plaintiff is aware of a risk already created by the negligence of the defendant, and proceeds voluntarily to encounter it by proceeding to use it or take part in it after he has discovered the danger.  W. Prosser, supra, at 440.  The facts of this case do not yield to any Of these defenses.  No prior warning of any risk was given.

     Now what could have been done to avoid the injury sustained by the plaintiff? The evidence suggests certain alternative courses of conduct which could have been taken to avoid the injury.  Plaintiff Felix Koike suggested moving the I-beam to the left side, Jack Adams moved the boom and the I-beam to the right side.  Or having known that the electric wires contained "deadly force," Jack Adams could have requested the Public Works to turn the power plant off during the operation of turning the barge over.  Or Jack Adams could have pulled or dragged the barge to a different location, one less hazardous.  Or Jack Adams could have waited until PATS found someone to undertake any one or a combination of the alternative precautions enumerated above.  Jack Adams admittedly on the stand said "all of this is my fault."  I find Jack Adams here to be negligent by resorting to a wrong judgment in not electing to follow any one of the above-enumerated precautions.

     It is imperative in a jurisdiction like Pohnpei where industrial and economic development is beginning to take shape and the people are not quite sophisticated about the uses or proper handling of certain machinery or equipment being introduced to our communities to support such developments that the procurer, user, owner, or seller of a piece of equipment or machinery takes extra precautionary measures in educating the people about the proper handling, operation, or storing of any such piece of machinery or equipment and also informs the people about the potential harm to persons or property if such piece of machinery or equipment is not properly handled, operated, or stored.  Failure to observe such extra precautionary measures may render the procurer, user, owner, operator, or the seller of such machinery or equipment liable for any injury which might result from such failure. Such education or information can be made in writing, or by oral explanation, through demonstration, or uses of signs easily understood and noticeable.

V-2.  Negligence of Defendant PATS
     PATS was eager to have the barge completed.  PATS provided its best welder, plaintiff Waleriano Sham, and recruited three other men, including Ponape Transportation Authority's welder Wilson Andon, to work on the barge to expedite its completion.  PATS, through its Director Father James Stehr, conveyed PATS' urgent need of the barge to defendant Jack Adams.  Both Father Stehr and Jack Adams visited and examined the work site, and both men knew very well of the existence of the electric wires running overhead, and recognized the inherent danger that the electric wires posed to those engaged in the enterprise if the task of turning the barge over was to Lake place on the site without having the power plant shut off or removing the barge to a different, safer location.  Father Stehr stated in his testimony that he himself went to MAEDA to request MAEDA's assistance in removing the barge to a

[3 FSM Intrm. 69]

safer location.  Additionally, Father Stehr informed the Public Works of the need to turn the power off momentarily when the task of turning over the barge took place. Public Works officials, according to Father Stehr's testimony, were receptive to the request and advised Father Stehr to inform the Public Works of the date and time to turn the power off.  Father Stehr, though recognizing the inherent danger of the electric wires running overhead, did not take the initiative to inform his men of that danger, in order to alert them to the risk of bodily injury that could result from the enterprise.  PATS's crew showed up on the morning of November 5, 1981, the date of the incident, and Jack Adams instructed them on the work to be undertaken that morning.  Had PATS, through Father Stehr, alerted plaintiff Waleriano Sham or any of his associates of the inherent risk of bodily injury that could result and the need to have the Public Works turn the power off, perhaps, plaintiff Waleriano Sham or anyone under his command could have been dispatched to Public Works to have the power plant turned off.  This nonfeasance helped to facilitate the bodily injury inflicted and I find it imputed to the negligence of Father Stehr, the Director of PATS whose knowledge of the existence of the risk was far more than that of the plaintiffs. Although Father James Stehr was not named as a defendant in any of the actions, his negligent conduct or omission is attributable to his employer Ponape Agriculture and Trade School under the principle laid down in Brooke and applied above.


V-3.  Negligence of Defendants Ponape Rock Products Inc., and Yvette Adams, PRP's Principal Shareholder

     PATS's Exhibit C admitted into evidence as a statement of a business transaction made on Ponape Rock Products, Inc. letterhead which memorialized the barge transaction as follows:

Sold to Ponape Agriculture & Trade School for the sum of $9,000.00

               1 Barge 151 x 351

               Received in payments: 1 THC tractor & lowboy

               Value:...........................$4,000.00

               10/30/81 BOH check #4004 ........$1,000.00

               05/24/83 BOH check #9467 ........$4,000.00

                                                                         $9,000.00

Sgd:  Jack Adams
      JACK ADAMS
      President

               May 30, 1983.

     This piece of evidence unequivocally shows that defendant Jack Adams was in fact negotiating the agreement for the sale, and for the joint adventure

[3 FSM Intrm. 70]

in the construction of the barge in the name of, and for the benefit of, Ponape Rock Products, Inc., of which he was the president as well as the operator.  This relationship makes PRP the employer of defendant Jack Adams.  Accordingly Ponape Rock Products, Inc., and its principal shareholder Yvette Adams, are liable for the wrongful acts of their employee under the maxim of respondeat superior.

     Plaintiff urges that since the personal affairs of Jack and Yvette Adams were so intermingled with the business affairs of Ponape Rock Products, Inc. that they should be deemed one and the same and the personal assets of Jack and Yvette Adams should be available to satisfy whatever judgment is entered in this case. While this argument is of great influence in a tort action in other jurisdictions, I think it will be premature and non-productive to apply this principle to Pohnpei when the knowledge of business law is lacking.  The Court takes judicial notice of the fact that practically all family incorporated enterprises in Pohnpei do intermingle the family's personal affairs with its incorporated business affairs as is the custom of property holdings in Pohnpei.

VI.  Pohnpeian Notions of Civil Wrongs - Torts
     In all communities of peoples known there always exist among them a notion of wrong (whether civil or criminal in nature) and of the remedy for such wrongs.2  We learned of the old Jewish law "an eye for an eye" as recorded in the Old Testament; we learned of the "pay back" system in the Melanesian communities. Pohnpeians have a rather strict view of civil wrong and the form of remedy which provides generally that

if I injure your property, I must repair that property almost as good if not exactly as it was prior to the injury.  Some people even insist that if the property injured is red in color the replacement must also be in red.  Or if I injured ten plantings of yam belonging to another, I must replace the ten yam plantings of the same size and same variety.

When the injury sustained is on the body of a person (personal injury), the person causing the injury must undertake certain undertakings which include, first an apology to the injured person and his family to ease the tension, and second the provision of specialized assistance to heal the injury or to stop the pain sustained by the injured person or by his family.  The third is the provision of material assistance to the injured person to assist

[3 FSM Intrm. 71]

in the sustenance of his livelihood as he would be expected to provide for himself and for his family had he not been injured.  Some people even provide land to the injured person as a remedy for the injury.  There is no specific length of time for which the provision of such remedial assistance should continue.  The impact of the injury attaches an everlasting obligation on the part of the tort-feasor to provide support to the injured person.

     When the injury however results in the death of a person, the form of remedy may extend to making the person who caused the killing Lake the place of the deceased person in his family and provide all the services expected of the deceased.  But when one undertakes to negotiate for the remedy of exchanging the person who did the killing for the deceased, one must be very careful for there is a danger inherent in the situation that the receiving family may be very receptive to the bargained exchange mainly for the purpose of revenge, and if revenge is successful a family feud is sure to continue and social unrest will follow as the clansmen join the feud.

     This being the custom on civil wrongs and the remedy known in Pohnpei, I shall now proceed to determine the damages that may be awarded, taking into account the differences as well as the similarities in the common law and the Pohnpeian notion of civil wrong, or tort.

VII.  Damages
     The people of Pohnpei today live in a mixed subsistence and cash economy. Plaintiffs here relied on their employability to bring in the cash they could find to help support themselves and their families in addition to the farm and fish products which they could produce through farming on their lands or through fishing. Evidence shows that immediately prior to the injury plaintiff Felix Koike was making an average of $110.00 bi-weekly or a total of $2,860.00 annually.  Plaintiff Waleriano Sham was making $150.00 bi-weekly or $3,900.00 annually prior to the injury. PATS now pays Waleriano Sham $72.00 bi-weekly as a pension, and he may do some modest work when he feels his ability could stand it.  Thus, due to the injury sustained by plaintiff Felix Koike, he is no longer able to bring home $2,860.00 annually and to produce enough food from the land or from the sea to support himself, his wife and five children.  Likewise, plaintiff Waleriano Sham is no longer able to bring home $150.00 (less $72.00) bi-weekly or $3,900.00 (less $1,872.00) annually and to produce enough food from the land or from the sea to support himself, his wife and their one daughter.  This inability will continue for some time.

     The Medical Statement prepared by one Dr. John C. Steele, M.D., dated December 30, 1984, offered and received into evidence without objection, describes plaintiff Felix Koike as follows:

Before the injury he was entirely healthy and vigorous.  He was a normally adjusted husband and parent providing his family's full support.  He worked regularly and without time loss as a heavy equipment

[3 FSM Intrm. 72]

operator, enjoyed his work and was employed by the same employer for the preceding 5 years.  He was a successful fisherman and farmer and took part in community activities and social events in his home municipality of Nett.  Since the injury he has had to severely restrict his activities because of persistent pain at the burn sites.  In the left chest he experiences a deep burning neuralgic pain with  most physical exertion and this prevents such things as carrying loads, digging, diving, etc.  He also experiences severe pain in the toes and left foot at the site of amputation when walking and even standing.  This pain occurs even when he wears protective shoes or boots.  He has pain in both hands at the sites of burn which prevent him from grasping and gripping normally.

Not only does he suffer these disabling pains which prevent most normal activities but also he has psychic symptoms since the injury which are also disabling.

It is now 3 years since injury and it is likely his present symptoms will continue.  It is likely he will remain disabled by and unemployable because of post traumatic neuralgic pain at the burn sites and reactional depression which are the late and permanent consequences of the electric shock injury.

and plaintiff Waleriano Sham as follows:

Before the injury he was entirely well and without physical symptoms. Since it he has felt sick and he has been constantly nervous and depressed.  He sleeps poorly, be has lost 20 pounds in weight, he is often irritable and his libido is very reduced.  He has frequent and severe head pain over the scalp at the site of the burn and he also experiences periodic generalized headache and vasomotor instability with dizziness and blurring of vision when he changes position quickly.

In the past 2 years he has resumed partial employment at the Ponape Agriculture and Trade School but his persisting symptoms of pain and depression prevent him from  undertaking all his former duties.

It is now 3 years since he suffered thermal burns as a result of an electric shock injury.  Although the burn sites have healed satisfactorily, he continues to suffer intermittent head pain at the site of scalp burn and chronic depression; both as late consequences of theinjury.  It is likely these symptoms will persist and thatthey will be a continuing disability and discomfort to him throughout his life.

[3 FSM Intrm. 73]

Although the medical opinion is not specific enough to pinpoint the length of time in terms of months or years that each plaintiff will be unable to produce income and other necessities of life to support themselves and their families as they were able to do before November 5, 1981, it does show that the injury sustained by the plaintiffs, as the result of the electrocution resulting from the direct negligent conduct of defendant Jack Adams and the indirect negligent conduct as well as omission of Father James Stehr of PATS, disabled them from engaging in those pursuits and occupations which they normally engaged in before their injury to support themselves and their families.  Under American common law consideration is given to

[h]ow far injury will in all probability disable plaintiff for engaging in those pursuits and occupations for which,  in the absence of the injury, he would have been qualified.

22 Am. Jur. 2d Damages 94.

     Using the common law principle as a guide, the medical statement tends to suggest that in all probability the plaintiffs will be disabled for the rest of their lives. Now how long or how many more years will each plaintiff live is totally unknown. The court however must in all fairness determine a reasonable time frame to aid in the determination of the amount of damages that can be awarded to each plaintiff. Pohnpei Government has a law which provides mandatory retirement of government employees at age 60.  (S.L. No. 2L-57-81).  While this mandatory retirement age is riot binding on private employees, I think, given the circumstances of this case, that the sixty year age limit is a reasonable time frame. Accordingly I shall utilize this Lime frame to determine the award of damages due each plaintiff for his disability to earn money income.

     Pain and Suffering.  Under the common law practice, pain and suffering constitutes a principal element of damages for which recovery is allowed in an action for personal injuries, and like other elements of damages recoverable in a personal injury action, there is no fixed rule to determine the amount in money to compensate for one day of pain and suffering.  Hence the discretion of the Court is utilized to determine the amount in dollars to compensate a plaintiff for pain and suffering.

     The medical statement shows that plaintiff Felix Koike was hospitalized for 51 days having been admitted on November 5, 1981 and having remained in the hospital until he was discharged on December 26, 1981.  Plaintiff Waleriano Sham was hospitalized for a cumulative total of 98 days as a result of the injury he sustained.  Both plaintiffs had experienced, and will continue to experience, pain and suffering as the result of the injury.  I figure $8,000.00 and $12,000.00 would be reasonable compensation for pain and suffering experienced by Felix Koike and Waleriano Sham respectively.

[3 FSM Intrm. 74]

      Loss of Consortium by the Wives.  The services, particularly farming, which provided a substantial portion of the plaintiffs' and their families' "daily bread" can no longer be performed by plaintiff-husbands, consequently their wives will suffer the loss of such service.  Consequently, the wives will have to exert more time and labor and perhaps money in order to maintain a reasonable level of the services once provided by the husbands.  I find great difficulty in assessing the monetary value that can best compensate the plaintiff-wives for loss of consortium.  I have to take into account the social structure of our society and the extended family system prevailing here.  In a situation where a family member meets an unfortunate fate, the other members of the extended family contribute a little, though occasionally, toward the support of the unfortunate member.  On the basis of this consideration I believe an award of $5,000.00 to each plaintiff-wife will be reasonable compensation.

     Incidentally, however, the court is mindful of plaintiffs' objection to defendants' urging that the court consider collateral sources of payment like social security benefits as a mitigation of damages.  In support of their objection, plaintiffs cite the collateral source rule as developed in the United States, to wit:

Courts generally have held that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.

22 Am. Jur. 2d Damages 206.

Thus, as a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages.

Id.

     While this collateral source rule sounds logical and may have functioned perfectly in an impersonal society, I believe it is not wholly proper in our society where extended family and social ties are strong.  I can appreciate discounting certain gratuitous payments like payment of medical care, food and clothing, transportation to and from medical facilities or local healers.  These kinds of payments whether made by the wrongdoer himself or by a member of his family to the injured person or his family are according to Pohnpeian custom "a must constituency of the apology process" given with the objective of helping to ease the tension between the injured person and his family and the wrongdoer and his family.  They are not intended as part of the damage payments.  Moreover any member of the wrongdoer's family may come to the aid of the wrongdoer to contribute to the damages resulting from the negligent conduct of the wrongdoer to his victim.  The Court ought to consider that kind of collateral source of payment in assessing damages, otherwise Pohnpeian social and family ties will dissipate.

[3 FSM Intrm. 75]

      Apportionment of Damages.  In conformity with the Pohnpeian saying "kaidehn peid sipal ieu dihp," literally, "commission of a wrong is not transferable," or by connotation, "if I commit a wrong I must bear the consequences," damages are to be apportioned among the wrongdoers.

     In view of the reasons given, I think plaintiffs should be awarded damages in the following amounts against defendant Jack Adams and Ponape Rock Products, Inc. and Ponape Agriculture and Trade School, severally as assigned.

     1.     Awards to plaintiffs Felix Koike and Susa Koike:

          a.     Loss of earning capacity of $2,860.00 p/a for 25 years from 1981 or until his 60th birth  date                                                                      $71,500.00

          b.     Pain and suffering                                                    $ 8,000.00

          c.     Wife's loss of consortium                                         $ 5,000.00
                                                                                                     $84,506.00

     2.  Awards to plaintiffs Waleriano sham and Sabina Sham:

          a.     Loss of earning capacity of $3,900.00 p/a less $1,872.00 for 20 years from 1981 or until his 60th birth date                                                                       $40,560.00

          b.     Pain and suffering                                                   $12,000.00


          c.     Wife's loss of consortium                                        $ 5,000.00
                                                                                                    $57,560.00
 
VIII.  Judgment
     Accordingly, it is ADJUDGED, ORDERED and DECREED that:

     A.     Plaintiffs Felix Koike and Susa Koike are awarded judgment of damages in the amount of $84,500.00 as against defendant Jack Adams, Ponape Rock Products, Inc. and Ponape Agriculture and Trade School; that the amount of this portion of the judgment is apportioned equally between defendants Jack Adams and Ponape Rock Products, Inc., and the Ponape Agriculture and Trade School, to wit, defendants Jack Adams and Ponape Rock Products, Inc. shall pay $42,250.00 and defendant Ponape Agriculture and Trade School shall pay $42,250.00 to the above-named plaintiffs; and

     B.     Plaintiffs Waleriano Sham and Sabina Sham are awarded judgment for damages in the amount of $57,560.00 as against defendant Jack Adams and Ponape Rock Products, Inc. and

     It is FURTHER ADJUDGED, ORDERED AND DECREED that:

[3 FSM Intrm. 76]

      Defendant Yvette Adams is not personally liable for the judgment entered herein, except through and in her capacity as the principal shareholder of Ponape Rock Products, Inc.

     No costs are assessed against either party.

Footnotes:

1.  Fr. James Stehr testified that the lowboy tractor and trailer worth $4,000.00 had already been given to Jack Adams before the negotiations for the exchange and construction of the barge; prior to the construction of the barge Jack Adams requested and was given $1,000.00, and upon completion of the barge, PATS was to pay Jack Adams the balance of $4,000.00.  See PATS Exhibits A & B.

2. Pohnpeians do not distinguish criminal wrong from civil wrong.  Both are considered and looked upon as wrongs which ought to be remedied by the wrongdoer, if not avenged.