Vasconcellos v. Juarez, 37 Haw. 364, 366. See also Tsuruoka v. Lukens, 32 Haw. 263; Ward v. I.-I.S.N. Co., 22 Haw. 488; Alau v. Everett, 7 Haw. 82. Cf., Territory v. Adelmeyer, 45 Haw. 144, 363 P.2d 979; Izumi v. Park, 44 Haw. 123, 351 P.2d 1083. In applying the above principle, we are required to resolve any conflict in the evidence "in favor of the jury's award and to that end give the evidence the strongest probative force it will admit."
Arisumi accurately reiterates that "in Hawaii, the measure of damages in building contracts is generally the cost of correction." Izumi v. Park, 44 Haw. 123, 128, 351 P.2d 1083, 1086 (1960); see also Ritchey v. Sato, 39 Haw. 500, 503 (1952). But we do not concur with its further thesis that the special damages awarded in this case were exorbitant.
Since this allows the wrongdoer to gain by delaying payment, where allowable prejudgment interest is exceeded by inflation, we see nothing to recommend it. The apposite cases cited by Anchorage Asphalt are: Universal Towing Co. v. United Barge Co., 579 F.2d 1098, 1104 (8th Cir. 1978); Izumi v. Kwan Doo Park, 44 Haw. 123, 351 P.2d 1083, 1086-87 (1960); Calais v. Dura-White Roofs, Co., 208 So.2d 397 (La.App. 1968); cert. denied, 252 La. 174, 210 So.2d 55 (1968); Gaylord Builders v. Richmond Metal Mfg. Corp., 186 Pa. Super. 101, 140 A.2d 358, 360 (1958). Cases indicating no duty to mitigate include: Fairway Builders, Inc. v. Malouf, 124 Ariz. 242, 603 P.2d 513, 525-26 (Ariz.App. 1979); Camrosa County Water Dist. v. S.W. Welding Mfg. Co., 49 Cal.App.3d 951, 123 Cal.Rptr. 93 (1975).
The rule has been adopted by this court that it is proper, either for the trial court upon an application for a new trial, or for an appellate court in reviewing a judgment, to permit the party, in whose favor a verdict or judgment has been returned or entered, to avoid the granting of a new trial on account of error affecting only a part thereof, by entering a remittitur as to such erroneous part, when the court can clearly distinguish and separate the same.Izumi v. Park, 44 Haw. 123, 132, 351 P.2d 1083, 1088 (1960) citing Hansen v. Boyd, 161 U.S. 397, 411 (1896). The test on appellate review as to whether the damages awarded by the jury were excessive is whether the award was "palpably not supported by the evidence, or so excessive and outrageous when considered with the circumstances of the case as to demonstrate that the jury in assessing damages acted against rules of law or suffered their passions or prejudices to mislead them.
Enco, Incorporated v. F.C. Russell Company, 210 Ore. 324, 311 P.2d 737 (1957). See Branning Mfg. Co. v. Norfolk-Southern R.R., supra; Izumi v. Park, 44 Haw. 123, 351 P.2d 1083 (1960); Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740 (1964). The burden, however, is upon the defendant to prove that mitigation is possible, and that the injured party has failed to take reasonable steps to mitigate his damages.
We therefore conclude that the trial court did not abuse its discretion in failing to set aside the verdict as excessive and order a new trial or in failing to order a remittitur of $49,000 general damages. See 3 BARRON AND HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE ยง 1305.1; Izumi v. Park, 44 Haw. 123, 131, 351 P.2d 1083, 1088 (1960). IV. IS APPELLANT ENTITLED TO A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE
Reversed and remanded for entry of judgment for both defendants on the claims for special and general damages for malicious prosecution and punitive damages for malicious prosecution and false imprisonment. We have recognized the doctrine of remittitur. Izumi v. Park, 44 Haw. 123, 351 P.2d 1083; Young v. Wong Ming, 35 Haw. 685. This is a proper case for application of that doctrine. As to the general damages for false imprisonment, the cause is remanded for a new trial unless, within sixty (60) days from the date of remand hereof plaintiff agrees to remit the sum of ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00), in which event the judgment will be affirmed as of the date of its rendition in the sum of THREE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($3,500.00).
The power to limit the new trial to the question of damages of course exists, but whether we should do so rests in our judicial discretion. Cf., Izumi v. Park, 44 Haw. 123, 133, 351 P.2d 1083, 1088; Kaimana v. Kamaunu, 11 Haw. 767, 771; Hansen v. Bledsoe, 130 Cal.App.2d 70, 278 P.2d 514; 6 Moore, Federal Practice, ยง 59.06, at 3766-67 (2d ed.). In this case, taking into consideration the matter of the surprise witness, and the limitations placed on defendant in the matter of plaintiff's pre-trial affidavit, we decline to limit the issues at the new trial to the damages only.
" See Tiggerman v. City of Butte, 44 Mont. 138, 119 P. 477; Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723, 729-730; Morro v. Brockett, 109 Conn. 87, 145 A. 659, 661; cf., Izumi v. Park, 44 Haw. 123, 128, 351 P.2d 1083, 1086. It is urged on behalf of plaintiff that the course of action followed by her was reasonable and substantiated by the following: her ignorance of financial aid; the fact that on each of the three occasions she visited her doctor she was given the same instructions; that the nature of her complaints had not changed; and that she obtained relief whenever she had pain by following the prescribed treatment.