Davenport v. Waite
| Decision Date | 27 November 1959 |
| Citation | 346 P.2d 501,175 Cal.App.2d 623 |
| Parties | Mildred DAVENPORT and Ruth W. Heywood, as Administratrix of the Estate of Wilfred P. Heywood, Deceased, Plaintiffs and Appellants, v. Laurel WAITE, Kieo Ness, Carol Waite, also known as Carol Holden, also known as Jane Doe Waite, etc., Defendants and Respondents. 5985. |
| Court | California Court of Appeals Court of Appeals |
Lee Freeman, Los Angeles, for appellants.
Moss, Lyon & Dunn, Robert C. Nye, and Henry F. Walker, Los Angeles, for respondents.
This is an action for damages growing out of a collision of two motor vehicles in Rialto, in San Bernardino County, in December, 1956. The defendant Laurel Waite, a minor, was operating an automobile upon a through highway and collided with an automobile operated by the plaintiff and appellant Mildred Davenport, who was attempting to cross the through highway. Although there is some considerable conflict in the testimony with respect to the details of the accident, the main facts are well established. Wilfred Heywood, a brother of appellant Davenport, was riding in her automobile and received injuries which resulted in his death. Ruth W. Heywood, as administratrix, joined as plaintiff. It was alleged, and appears to be undisputed that deceased occupied the status of guest. There is some dispute in the evidence as to the speed which defendant Waite was driving, but she admitted a speed of at least 50 miles per hour, and marks upon the highway indicate application of brakes immediately before the collision. The mother of defendant Laurel Waite was made a party defendant by reason of assumption of liability in applying for the minor's driver's license. Kleo Ness, the owner of the automobile driven by defendant Waite, sought recovery of damages to the automobile driven with the owner's consent.
A jury trial resulted in a verdict in favor of defendants, and against the plaintiffs and also in favor of Kleo Ness and against plaintiff Davenport for $650 for damages to the automobile. The verdict was evidently upon the theory that the collision was a proximate result of negligence of the plaintiff Davenport and that defendant Laurel Waite was not negligent. A motion for new trial was filed by both plaintiffs. They assigned as grounds for the motion the insufficiency of the evidence to support the verdicts, misconduct of the jury, and accident and surprise. In support of the motion affidavits of counsel for plaintiffs and affidavits of two of the jurors were filed. Upon the hearing of the motion the court struck out the affidavits of the two jurors, denied the motion of plaintiff and appellant Mildred Davenport for a new trial upon the issues raised by her complaint, granted the motion for new trial of the plaintiff Heywood, as administratrix, and granted the motion for new trial as to the issues raised by the cross-complaint. The plaintiff Mildred Davenport appeals from the judgment. There is no appeal by the other parties to the action.
It is clear from the record that the trial court was satisfied that the evidence was sufficient to support the implied finding of the jury that appellant Mildred Davenport was guilty of negligence which was a proximate cause of the collision, but that the court was satisfied that the implied finding of the jury that defendant Laurel Waite was not guilty of negligence was contrary to the weight of the evidence.
Before considering the evidence and the weight thereof, however, it becomes necessary to consider the matter of the affidavits filed in support of the motion for new trial. The affidavits of two of the jurors were to the effect that the deposition of the defendant Laurel Waite, which was not introduced in evidence, was taken to the jury room, together with the exhibits in the case, and that portions of it were read to and commented upon by the jury. Neither affiant was able to state just what portions were considered. The affidavit of counsel for the plaintiff was in substance that the deposition was inadvertently taken in to the jury room and that he had no knowledge of that fact until informed thereof by jurors whom he interviewed subsequent to the trial.
The court struck out the affidavits of the two jurors upon the motion of the defendants upon the ground that they were not competent to impeach the verdict of the jury. Appellant assigns this ruling as error, claiming that the affidavits are for the purpose of establishing an independent act of irregularity and are not strictly for the purpose of impeaching the verdict. There has long been a controversy as to the soundness of the rule that jurors may not impeach their verdict. This rule and the contentions with reference thereto and the decisions of the California courts upon the subject have been carefully reviewed in Kollert v. Cundiff, 50 Cal.2d 768, 329 P.2d 897. The court there calls attention to the fact that two exceptions to the rule of exclusion have been established in California, one by Code of Civil Procedure, § 657, subdivision 2, which permits the filing of affidavits to show that the verdict was the result of chance, and a second exception, established by decisions of court, to the effect that disqualifications of a juror were concealed upon his examination on voir dire. The court holds that although other situations may arise where, as a matter of substantial justice, other exceptions should be allowed, that nevertheless, no further exceptions should be recognized unless there is compelling reason.
There are many reasons to support the rule that an affidavit of a juror is incompetent to impeach the verdict. The reason most frequently given for the rule is that the verdict having been reached by the solemn deliberations of the jury, after hearing the evidence and the instructions, should not be lightly set aside because of the subsequent doubts or change of attitude by one of the jurors. Such rule would permit a juror to stultify his own solemn pronouncement and decision. Another reason is that jurors should be protected in the exercise of their function and their duties, and should not thereafter be subject to examination or pressure by litigants. In any event, the affidavits in question give the inference that the jury in its deliberations gave consideration to the contents of this deposition and to that extent it is sought to impeach the verdict. Under the rules recognized and established in California, the court correctly ordered that they be stricken.
The situation in the instant case is similar to that involved in Woods v. Pacific Greyhound Lines, 91 Cal.App.2d 572, 205 P.2d 738, in which it was held that the affidavits of jurors which sought to impeach their verdict, and the affidavit of counsel...
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