Kollert v. Cundiff ( 1958 )

GIBSON, C. J.

Plaintiffs have appealed from a judgment for defendants, contending that the court erred in instructing the jury and in refusing to consider affidavits of jurors offered in support of a motion for new trial to prove misconduct of the jury.

The plaintiffs, Mrs. Kollert, Mrs. Abrahamson, and four children, were riding in a car which Mrs. Kollert was driving when it collided with one operated by defendant Cundiff who was then acting in the course of his employment by defendant The Termo Company. Mrs. Abrahamson, who is Mrs. KoIIert’s mother, was riding in the front seat with her. Four children, Steven and Michael Kollert and Mary and Marlene Cleveland, were riding in the back seat of the car.

The accident occurred in Long Beach at the intersection of Carson Avenue and Paramount Boulevard, where traffic is controlled by electrically operated signals. Mrs. Kollert was driving west on Carson in the lane nearest the center line, and, as she approached the intersection, there was no car in front of her in that lane. She testified that the signal light on Carson turned from red to green when she was half a block from the intersection, that she was driving about 20 miles an hour and that she did not see defendant's ear until the collision occurred. A man who had been driving about 300 feet behind Mrs. Kollert in the lane to her right testified that the light was green when she entered the intersection and that it was still green when the accident happened.

Cundiff was driving east on Carson, intending to make a left turn north into Paramount. He testified that the light was green as he came to the intersection and that he stopped even with the curb. He signaled for a left turn, moved into the intersection and waited for several westbound cars to pass. As the light changed to amber, he drove across the double line and saw the car driven by Mrs. Kollert, which was then approximately 50 feet east of the intersection, traveling at about 35 miles per hour. The ears came together in the westbound lane nearest the center line, the right front part of Mrs. KoIIert’s car colliding with the right front wheel of Cundiff’s car.

A witness who was driving the third car behind Cundiff and in the same lane testified that traffic at the intersection had stopped and that as the cars in the lane to the right began to move, Cundiff, starting out very fast, turned left into the intersection. The witness said that he noticed Mrs. KoIIert’s car coming toward Cundiff “at a good rate of speed,” as soon as Cundiff started to move.

There was substantial evidence to support the implied finding of the jury either that Cundiff was not negligent or that Mrs. Kollert was guilty of contributory negligence. However, in considering whether errors, if any, had a prejudicial effect, it should be noted that, on both of these issues, the evidence would also have warranted a finding against defendants.¹

The court gave instructions which submitted the issue of contributory negligence to the jury not only as to Mrs. Kollert but also as to Mrs. Abrahamson. Defendants did not plead that Mrs. Abrahamson was guilty of contributory negligence, and they concede that the instructions were erroneous as to her but take the position that the error was not prejudicial.

Defendants point out that the jury found against the four children in the car, although it was instructed that the defense of contributory negligence did not apply to them, and they argue that the jury must have based its verdict for Cundiff on a conclusion that he was not negligent. The findings against the children could be explained upon the theory that they had not proved any substantial injuries caused by the accident. With respect to three of the children it is clear that the jury was not required to find under the evidence that they had been injured, and it may be noted that defendants moved for a directed verdict as to them on this ground. However, defendants assert that it was conclusively established that the other minor plaintiff had received a fractured finger as a result of the accident. We do not agree that this is so. Although a doctor testified that a week after the accident he found a slight fracture, defendants presented evidence that X-rays taken at a hospital immediately after the accident showed no fracture, and, on cross-examination by defendants, the doctor acknowledged that the fracture might have been sustained at some time after the accident. Thus the jury may have concluded that the minor plaintiffs received no substantial injuries and may have found against them on that ground.

As we have seen, the evidence would support a finding that both Cundiff and Mrs. Kollert were negligent. The jury may have believed that Mrs. Abrahamson was chargeable with Mrs. Kollert’s negligence or that she in some degree failed to exercise due care for her own safety, and the erroneous instructions, when considered with the evidence, may have improperly caused the jury to go beyond the issues pleaded and return the verdict against Mrs. Abrahamson on the ground of contributory negligence. In these circumstances we are of the view that the erroneous instructions require that the judgment against Mrs. Abrahamson be reversed.

When the jurors were polled, they stood nine to three in favor of defendants. In support of the motion for a new trial, affidavits of the three dissenting jurors and of one majority juror were offered. The affidavits may be summarized as follows : The jury, taking four polls, considered the ease of Mrs. Kollert only, and by a poll of nine to three found that both drivers were negligent and that Mrs. Kollert should be denied recovery. The bailiff was summoned for the purpose of securing additional instructions as to the remaining plaintiffs. He asked how the deliberations stood, and the foreman answered that the vote was nine to three. The bailiff then left, returned, and advised that there would be no need for further instructions since a verdict had been reached. Over the protest of some jurors the foreman completed the verdicts as to the remaining five plaintiffs without any further deliberation. Two of the affidavits stated that the foreman told the jurors that they would have to abide by the verdicts completed by him or they would never again be allowed to act as jurors. According to three affidavits, the foreman, during a night recess, had investigated the traffic lights at the intersection where the accident occurred, and his report on the periods of the signals was considered by the jury.

It is the general rule in California that affidavits of jurors may not be used to impeach a verdict. (See People v. Sutic, 41 Cal.2d 483, 495 [261 P.2d 241] [coercion of a juror by the others to subscribe to a verdict]; People v. Evans, 39 Cal.2d 242, 250 [246 P.2d 636] [evidence received out of court]; People v. Gidney, 10 Cal.2d 138, 146, 147 [73 P.2d 1186] [bailiff discussed case and probable sentence with jurors] ; People v. Azoff, 105 Cal. 632 [39 P. 59] [evidence received out of court]; People v. Zelver, 135 Cal.App.2d 226, 235-236 [287 P.2d 183] [juror “coerced” and “intimidated” by other jurors] ; Maffeo v. Holmes, 47 Cal.App.2d 292, 295 [117 P.2d 948] [independent investigation by some jurors]; People v. Giminiani, 45 Cal.App.2d 535, 539 [114 P.2d 392] [jury informed by bailiff that a defendant had a bad reputation with the police].)

An exception to the general rule is made by statute where “any one or more of the jurors have been induced to assent to any general or special verdict . . . by a resort to the determination of chance. ...” (Code Civ. Proc., § 657, subd. 2.²) Another exception, recognized by judicial decision, is that affidavits of jurors may be used to set aside a verdict where the bias or disqualification of a juror was concealed by false answers on voir dire. (E.g., Williams v. Bridges, 140 Cal.App. 537 [35 P.2d 407].)

Subdivision 1 of section 657, which provides that a verdict may be vacated for “irregularity in the proceedings,” does not refer to jurors’ affidavits and may not be regarded as permitting the use of such affidavits in situations where they would not otherwise be proper. (Cf. People v. Evans, 39 Cal.2d 242, 250 [246 P.2d 636] [rejecting a similar argument made with respect to Pen. Code. § 1181, subd. 2].) The statements to the contrary in Shipley v. Permanente Hospital, 127 Cal.App.2d 417, 424 [274 P.2d 53, 48 A.L.R.2d 964], are disapproved.

A few jurisdictions permit a wider use of a juror’s affidavit to impeach a verdict than has been allowed in California (see Wright v. Illinois & Mississippi Tel. Co., 20 Iowa 195, 210-212; Mattox v. United States, 146 U.S. 140, 148-150 [13 S.Ct. 50, 36 L.Ed. 917]), and plaintiffs urge us to relax the rule in this state. The problem involves the balancing of two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury. The court in McDonald v. Pless, 238 U.S. 264, 267-269 [35 S.Ct. 783, 59 L.Ed. 1300], after discussing these policies and stating that the wrong to the individual was the lesser of two evils, concluded that as a general rule the affidavits should be excluded but that there might be instances where the rule could not be applied without “violating the plainest principles of justice.”

In California, as we have seen, only two exceptions have been recognized, one by statute and one by judicial decision. The present case does not come within either of them, and, whether or not additional exceptions may be justified under some circumstances, we are of the view that the allegations of the affidavit before us, even if taken as true, do not warrant a departure from the general rule. It is doubtful whether the conduct of the bailiff and the foreman’s action at the time of completing the verdicts would have-caused persons of ordinary intelligence to acquiesce in verdicts which did not represent their conclusions, and when the jurors were polled in open court all of them except the three affiants who voted for plaintiff affirmed each of the verdicts as written. With respect to the foreman’s visit to the scene of the accident and his report to the jury it is difficult to see how, in the light of the evidence relating to the collision, the duration of the traffic signals could have had a significant bearing on the outcome of the case.

The judgment is reversed as to Mrs. Abrahamson and affirmed as to the other plaintiffs.

Shenk, J., Traynor, J., Sehauer, J., Spence, J., and McComb, J., concurred.

1 At the time of the accident, July 1955, section 551 of the Vehicle Code provided;

“ (a) The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

“(b) Said driver turning left having so yielded and having given a signal when and as required by this code may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the driver making the left turn.”

2 Section 657 of the Code of Civil Procedure provides in part:

“The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

“1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

“2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors; ...”