Deward v. Clough

• Decision Date: 07 October 1966
• Citation: 54 Cal.Rptr. 68,245 Cal.App.2d 439
• Court: California Court of Appeals Court of Appeals
• Parties: Richard DEWARD, Plaintiff and Appellant v. Helene Rose CLOUGH, Defendant and Respondent. Civ. 11161. California

Page 68

54 Cal.Rptr. 68

245 Cal.App.2d 439

Richard DEWARD, Plaintiff and Appellant v. Helene Rose CLOUGH, Defendant and Respondent.

Civ. 11161.

District Court of Appeal, Third District,

California.

Oct. 7, 1966.

Rehearing Denied Nov. 3, 1966.

Hearing Denied Nov. 30, 1966.

Perry, Price, Biglow & Capriola, by Eugene A. Biglow, Fresno, for appellant.

Fitzwilliam, Memering, Stumbos & DeMers, by Robert Memering, Sacramento, for respondent.

PIERCE, Presiding Justice.

The appeal is from a defense judgment following a verdict in favor of defendant Helene Rose Clough in a personal injury action. ¹ The accident involved the collision of Mrs. Clough's automobile with a motorcycle driven by plaintiff at approximately 1 p.m., on November 29, 1962, in Sacramento. The collision occurred at an intersection (or intersections) unusually engineered and designed, where Freeport Boulevard follows a general north-south course, makes an 'S' turn easterly and westerly, then northerly and southerly again. It is joined by 21st Street to the north and 4th Avenue to the west. (A reduced photograph of Plaintiff's Exhibit 1 (shown here) will help explain the intersection's peculiarities.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As one of his grounds for a motion for a new trial, plaintiff alleged the misconduct of a juror. The motion was denied. Since the misconduct was clearly proved, since it was serious and since we have concluded it resulted in an unfair trial, we have been compelled to find that the denial of a new trial was prejudicial error.

THE CONTENTION REGARDING MISCONDUCT OF A JUROR

The trial lasted four days. On its last day, January 7, 1965, Mary Brock Deward, the mother of plaintiff, observed a happening in the courthouse corridor. This was reported in her affidavit on motion for a new trial. In it she said that at the beginning of the morning recess of the last day she had stepped from the courtroom out into the hallway. Some of the jurors came out of the courtroom and headed for the jury room but found the door of the jury room locked. She then overheard juror Simard make a statement to two or three other men jurors to the effect: "I don't see why they don't open up the jury room now. We could bring in a verdict already.' The jurors present all laughed and the man who had spoken walked past me down the hall.'

Most significantly, no counteraffidavit was filed either by juror Simard or by or on behalf of any of the other male jurors. (The jury consisted of 8 women and 4 men.) Significant too is the timing of the incident. Although at the time it occurred all of the evidence was in and Mr. Biglow, plaintiff's attorney, had just completed his opening argument, the arguments had not been completed And the jury had not been instructed. (We emphasize the latter fact since the court instructions, as we will show, were of more than usual importance under the facts of the case.) According to the minutes of the court the case went to the jury at 2:15 p.m., and the jury returned with its verdict at 3:15 p.m. The polling of the jury showed the vote for defendant Clough was eleven to one. One woman juror voted for plaintiff. Juror Simard voted for Mrs. Clough.

Mrs. Deward's affidavit avers: '* * * I related this information (i.e., juror Simard's statement quoted above) to Mr. Biglow at my home on the evening of January 7, 1965.'

The voir dire examination of juror Simard before he was selected is a part of the record. He had stated he was an electrician employed by a local electrical contracting firm. Asked by the court whether he was acquainted with any of the attorneys or the parties, he responded: 'Yes, I deal with the defendant's husband. * * * Mr. Clough.' He stated that these dealings were 'every other month, or two months. When I need his supplies.' He affirmed that he had an open mind. He also stated he would keep this open mind until he had heard all of the evidence And the law. In addition, of course, the jury as a whole was admonished by the court as required by Code of Civil Procedure section 611 that it was the duty of each juror 'not to form or express an opinion * * * (on any subject of the trial) until the case * * * (had been) finally submitted to them. ²

On its face Mrs. Deward's affidavit shows that juror Simard had neither kept his promise--made before he was selected as a juror--that he would keep an open mind, nor had he heeded the court's admonitions. On the contrary, even before hearing all of the arguments or any of the court's instructions, he had decided to vote for Mrs. Clough. To assume that his remarks had been made in jest because the jurors to whom he spoke had laughed when he made his statement would be sheer guesswork. One could as readily assume they had laughed because they too had already made up their minds. Absent any counteraffidavit either from juror Simard or from any of the other three male jurors on the jury, we must accept the fact, regretfully, that juror Simard had prejudged the case. This was misconduct and it was serious.

Cynics, critical of the jury system, have observed that prejudgment is an inevitable concomitant of the system since juries are composed of human beings and--more particularly--of laymen unschooled in withholding decision; unaware that such restraint is a vital part of meting out impartial judgment. Academic discussion here of the merits and demerits of the jury system is inappropriate. In both the federal courts (by U.S. Constitution, Seventh Amendment) and in the state courts of California (Calif.Const., art. 1, sec. 7) the right to a trial by jury in an action such as this is jurisdictional. (People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832.) And 'The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury * * *.' (People v. Hughes, 57 Cal.2d 89, 17 Cal.Rptr. 617, 367 P.2d 33.) The guarantee is to Twelve impartial jurors. This does not mean that every insignificant infringement of the rules by a juror calls for a mistrial or a new trial. Code of Civil Procedure section 657, subdivision 1, calls for the granting of a new trial for irregularity in the proceedings of the jury by which either party was prevented from having a fair trial. The case most often cited (leading case) interpreting this section is Justice Henshaw's decision (1911) in Zibbell v. Southern Pacific Co., 160 Cal. 237, at page 253, 116 P. 513, at page 520, where the opinion states: '(T) he rule is that when knowledge of such irregularity is made known in time to apply to the court to remedy or correct it, a party may not sit by in silence, taking chances of a favorable verdict, and after a hostile verdict, then, for the first time, be heard to complain.' (See also Sepulveda v. Ishimaru, 149 Cal.App.2d 543, 547, 308 P.2d 809; Newton v. Thomas, 137 Cal.App.2d 748, 769, 291 P.2d 503.) In the Sepulveda case, supra, it is also stated that the question of the prejudicial character of a juror's misconduct is primarily a matter of fact for the trial court.

While it is true that many California cases have stated the trial court exercises a discretion in weighing the prejudicial effect of error (e.g., misconduct of a juror) and that its action will be disturbed only for an abuse of discretion, a more accurate statement, as we had occasion to observe in Wilkinson v. Southern Pacific Co., 224 Cal.App.2d 478, at page 483, 36 Cal.Rptr. 689, at page 692, is that article VI, section 4 1/2, of the California Constitution 'imposes on the appellate court a direct obligation to review the entire record * * * to determine Independently whether error has prejudiced the appellant.' (Emphasis supplied.) Therefore, while a determination by the trial court Granting a new trial may be disturbed only for an abuse of discretion, the same observation is a non sequitur in an appeal from the judgment after an order denying a motion for a new trial.

RE THE QUESTIONS: DID PLAINTIFF HAVE A FAIR TRIAL? WAS THERE A MISCARRIAGE OF JUSTICE?

The answers to the dually-expressed question in the foregoing caption require dual considerations. We shall first consider whether the attack upon juror Simard's unquestionable misconduct was timely. We must hold that it was under the rule of the Zibbell case, supra. Mrs. Deward was not a party to the action; there is no reason to assume that she informed her son, the plaintiff, of the incident before the verdict; and the affidavit shows the plaintiff's attorney did not learn about it until that evening during the (undoubted) postmortem discussion of the case between the attorney, the plaintiff and his family at the family home after the judgment on the verdict had been entered. Moreover, we may assume that the mother, unlearned in the law, would have had no understanding of the serious implications or legal consequences of prejudgment of the case by one of the jurors. This is not a case, therefore, of a party, or the attorney of a party, who has noted misconduct, sitting back to determine which way the wind blew before bringing that misconduct to the court's attention.

We turn to the second question which may be restated as follows: Was this a case, the result of which is so free from doubt, that we can say justice has not miscarried? Respondent points to the eleven-to-one defense verdict reached after only an hours's deliberation as demonstrative evidence that it is. Our study of the record convinces us to the contrary.

Despite the fact that the trial of the case consumed four days and being a bifurcated trial the issue of liability alone was before the jury, and also despite the fact that the place where the collision occurred is an unusual arrangement of streets, the facts are relatively simple and the testimony is substantially without conflict. Also, we are convinced that no witness dissembled or colored his or her testimony even in that slight degree which is commonplace...