Anthony L. Welch, a Minor, Through His Guardian Ad Litem, Gladys a . Welch, Plaintiff and Respondent v. Dunsmuir Joint Union High School District, a Political Subdivision, Defendant and Appellant

• Decision Date: 09 June 1958
• Citation: 326 P.2d 633
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony L. WELCH, a minor, through his guardian ad litem, Gladys A. Welch, Plaintiff and Respondent, v. DUNSMUIR JOINT UNION HIGH SCHOOL DISTRICT, a political subdivision, Defendant and Appellant. Civ. 9363.

Page 633

326 P.2d 633

Anthony L. WELCH, a minor, through his guardian ad litem, Gladys A. Welch, Plaintiff and Respondent, v. DUNSMUIR JOINT UNION HIGH SCHOOL DISTRICT, a political subdivision, Defendant and Appellant.

Civ. 9363.

District Court of Appeal, Third District, California.

June 9, 1958.

Hearing Granted Aug. 7, 1958.

Tebbe & Correia, M. Harris Messner, Yreka, and Floyd Merrill, Siskiyou County Dist. Atty., Treka, for appellant.

Barr & Hammond, Yreka, and Halpin & Halpin, Redding, for respondent.

WARNE, Justice pro tem.

Anthony L. Welch, a minor, brought this action through his guardian ad litem against the defendant Dunsmuir Joint Union High School District to recover damages for personal injuries received while participating in a high school football scrimmage between the Dunsmuir High School team and the Enterprise High School team on September 10, 1955. The jury returned a verdict in favor of the plaintiff in the sum of $325,000, and judgment was entered thereon with interest at the rate of seven per cent per annum. Appellant filed its motion for a new trial on all of the statutory grounds set forth in section 657 of the Code of Civil Procedure, and after a hearing thereon the motion was denied upon condition that plaintiff remit the sum of $118,196 from the judgment. Plaintiff remitted said amount within the specified time and judgment was reduced accordingly.

Defendant appeals from the judgment and the order denying a new trial. Since the order denying a new trial is not appealable, the purported appeal therefrom must be dismissed. Section 963, Code of Civil Procedure; Jensen v. Minard, 44 Cal.2d 325, 326, 282 P.2d 7.

A few days prior to September 10, the respective coaches of the schools arranged for an inter-school scrimmage between the two teams on that date at Tiger Field in Redding. Prior to the opening of school on August 29, plaintiff was given a physical examination by a Doctor Reynolds and found to be physically fit. The coaches were on the field directing or supervising the play and there were no 'game officials' there. The teams alternated in carrying the ball, and after each sequence of plays the coaches stopped the activity and instructed the players. No downs were called and no score was kept. Plaintiff was a T-formation quarterback and directed the play of his team while they were on offense. Plaintiff took the ball on a 'quarterback sneak' and was tackled shortly after he went through the line. As he was falling forward another player was coming in to make the tackle and fell on top of him. After this play plaintiff was lying on his back on the field and unable to get to his feet. Coach Reginato of the Dunsmuir school suspected that plaintiff might have a neck injury and had him take hold of his hands to see if there was any grip in them. Plaintiff was able to move his hands at that time.

The evidence was conflicting as to whether or not Doctor Saylor, who was admittedly present at the scrimmage, examined plaintiff before he was moved to the sidelines. Franklin Barr, a member of the Dunsmuir team, testified on plaintiff's behalf that Doctor Saylor was from 20 to 25 yards away when plaintiff was injured but did not go over to see him until after he had been removed from the place of injury. Thereupon Johnson, another member of the team, testified on plaintiff's behalf that he did not see the doctor on the field. Barr testified further that he assisted in carrying plaintiff from the field; that he was moved by eight boys, four on each side; and that no one directed the moving. Other witnesses testified that Doctor Saylor came out to the boy immediately after the accident. It was not claimed that the doctor was an agent or employee of the defendant.

The undisputed and only medical testimony was that the plaintiff is a permanent quadriplegic caused by damage to the spinal cord at the level of the fifth cervical vertebra; that there was a fracture of this vertebra without significant displacement; that the fracture was the result of severe trauma; that the removal of the plaintiff from the field without the use of a stretcher was an improper medical practice in view of the symptoms. In answer to the question: 'Doctor, in determining just exactly what did damage to the spinal cord, is movement of the fingers, hands and feet the most significant thing?' he testified, 'Actually far more important than any kind of examination that one can make of the local injury. This follows from what I have previously said about the fact that the leval of injury precludes, if it is complete the movement of the hands and feet in any effective fashion. If the injury has already been sustained and if the individual can, following the injury, move the hands and feet, he should continue to be able to move the hands and feet.' It appears that after the plaintiff was moved off the field to the sidelines he was unable to move his hands, fingers and feet. With these circumstances in mind the doctor testified it was his opinion that the plaintiff must have sustained additional damage to the spinal cord after being tackled. The doctor's testimony stands undisputed in the record.

Defendant contends first that it was denied a fair trial because of the misconduct of juror Earline Adair when she failed upon examination to fully disclose her relationship with plaintiff's counsel, Jack Halpin. During the impanelment of the jury the court asked the prospective jurors if at anytime since March 22, 1955, any one of them had been a client of any of the lawyers in the case including attorneys Halpin and Halpin. One of the prospective jurors answered that Mr. Halpin had represented her husband in a personal injury settlement. There was no response to the court's inquiry, 'Any further answers to that question?' On voir dire juror Adair stated her impartiality. In response to the question of defendant's counsel, 'Mrs. Adair, what is the extent of your acquaintance with Mr. Halpin?' she said, 'We belong to one of the same clubs.' In answer to his next question, 'What club is that?' she said, 'Democratic.' The affidavits supporting and opposing the motion for a new trial disclosed that Jack Halpin, counsel for plaintiff, had on various occasions since 1954 represented Local 2608, Lumber and Sawmill Workers, AFL-CIO, and had appeared in cases wherein juror Adair's husband had been named as the representative of the members; that juror Adair was not a member of said union; that on November 29, 1956, attorney Jack Halpin consulted with both the juror and her husband at the scene of an accident involving an automobile owned by the union. At the time of the accident juror Adair was sitting in the front seat of the car which was parked on the side of the road. Mr. Adair had been driving the car but was not in it at the time of the accident. In his affidavit Mr. Halpin said that he was not employed by the Adairs to represent them in this matter. The trial court made no finding although the affidavits opposing the motion could have supported a finding that no attorney-client relationship had existed between Mr. Halpin and the juror Adair. However, assuming that such relationship existed within one year prior to the filing of the complaint in this action, and was grounds of challenge for cause under the provisions of section 602, subsection 3, of the Code of Civil Procedure, the appeal must fail on that ground for lack of complete affidavits. The affidavits in support of the motion for a new trial merely show that the defendant's counsel were unaware of the facts constituting the alleged misconduct or irregularity prior to the rendition of the verdict.

It is essential, not only that there be affidavits showing that the defendant's counsel were unaware of the facts constituting the claimed misconduct prior to the rendition of the verdict, but also that the defendant school district file an affidavit to the same effect, stating that it had no knowledge prior to the rendition of the verdict. Forman v. Alexander's Markets, 138 Cal.App.2d 671, 292 P.2d 257; Dunford v. General Water Heater Corp., 150 Cal.App.2d 260, 309 P.2d 958; Lafferty v. Market Street Ry. Co., 7 Cal.App.2d 698, 46 P.2d 996. If such was the fact the president or secretary, or an authorized officer of the governing board of defendant school district could and should have executed such an affidavit on behalf of the defendant. 'When an affidavit is required of a corporation, and no particular officer is designated * * * as the person who shall make it, it may be made by any one of its officers or agents in its behalf.' Old Settlers Investment Co. v. White, 158 Cal. 236, 246, 110 P. 922, 927. School districts have been declared to be corporations organized for educational purposes and are classified with counties as necessary political subdivisions. Ward v. San Diego School District, 203 Cal. 712, 265 P. 821. A union or joint union high school district is governed by a board consisting of five members and has a president and a secretary. Sections 3121 and 3127, ¹ Education Code.

Defendant also claims that attorney Jack Halpin was guilty of misconduct in connection with the alleged misconduct of the juror Adair. 'Since the [defendant] did not tender the issue to the trial court which he now argues for the first time on appeal, there was no error in that court in reference to that issue which can be reviewed here.' Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 745, 107 P.2d 501, 504.

It is next contended by defendant that the court erred in polling the jury by its failure to comply with the provisions of section 618 of the Code of Civil Procedure. When the jury returend with its verdict, the jurors were polled and each individual juror was instructed to answer 'yes' or 'no' as to whether or not it was his or her verdict. The result was eight to four for the verdict. The court then stated, 'Upon the poll, the verdict is not the verdict of the jury. ...