Russell K. Gerhard, a Minor, by D. N. Ingman, His Guardian Ad Litem v. George Pagan

There was an action brought by a motorcycle rider against the driver of a car for damages claimed to have resulted from a collision between the vehicles upon the Island of Oahu. The driver of the car filed a counterclaim. The cause was tried to a jury, which disallowed the claim of plaintiff and the counterclaim of defendant.

An instruction reciting a statute relating to operating a vehicle while under the influence of intoxicating liquor was read to the jury, who were instructed that they could consider whether a person was so influenced in “determining his conduct and whether or not he was negligent.”

Defendant testified he had not had a drink that day. Plaintiff excepted to the instruction because there was “not sufficient evidence before the jury to justify the giving of this instruction.”

It might be possible to decide this case upon the ground that plaintiff brought up neither the entire testimony nor a full text of instructions given. Plaintiff can demonstrate that an instruction has no basis in evidence only by bringing up the entire record. He is not entitled to bring up a portion and compel defendant to bring up all the rest in order to attempt to prove the contention…