Marinucci v. Bryant

• Decision Date: 27 May 1957
• Citation: 311 P.2d 622,151 Cal.App.2d 298
• Court: California Court of Appeals Court of Appeals
• Parties: W. J. MARINUCCI, Plaintiff and Respondent, v. Richard BRYANT, Defendant and Appellant. Richard BRYANT and Lillian Bryant, Cross-Complainants and Appellants, v. W. J. MARINUCCI and Mrs. W. J. Marinucci, Cross-Defendants and Respondents. Civ. 22032.

Page 622

311 P.2d 622

151 Cal.App.2d 298

W. J. MARINUCCI, Plaintiff and Respondent, v. Richard BRYANT, Defendant and Appellant.

Richard BRYANT and Lillian Bryant, Cross-Complainants and Appellants, v. W. J. MARINUCCI and Mrs. W. J. Marinucci, Cross-Defendants and Respondents.

Civ. 22032.

District Court of Appeal, Second District, Division 3, California.

May 27, 1957.

Hearing Denied July 24, 1957.

Edward H. Blixt, Los Angeles, for appellants.

Robert S. Butts, Hollywood, for respondent.

SHINN, Presiding Justice.

As the aftermath of a brawl in a barroom, Mr. Marinucci brought suit against Mr. Bryant, seeking compensation for personal injuries, consisting of fractured bones and sprained tendons in one of his legs; by cross-complaint Mr. Bryant sought damages for his injuries, consisting principally of a cut lip and an injured fist, and Mrs. Bryant also sued for compensation, claiming physical and mental suffering as a result of a pinch allegedly administered by Mr. Marinucci. Verdict and judgment were in favor of Mr. Marinucci in the sum of $10,000 and the Bryants appeal.

All was quiet and peaceful when the encounter took place at about 1:30 a. m. in the Cock'n Bull, where the parties regularly foregathered with numerous others, in the late hours, to participate in songfests led by Rudy, the bartender, a tenor. The singing had subsided and most of the patrons had departed. Marinucci was a foreman in the erection of structural steel and a writer of novels and short stories. His weight was 190, his height 6 feet three. For a year and a half he had patronized the Cock'n Bull weekly in the hope of finding someone who would purchase his writings. Mr. Bryant was a salesman. His size was not disclosed. Marinucci and the Bryants were slightly acquainted. They were seated on stools at the bar, drinking; other patrons seated at tables had been served with food. Mr. Bryant, after walking about, retired from the room and was absent about five minutes. Mr. Marinucci who had had 'a couple of drinks, anyhow' left his stool and approached that of Mrs. Bryant, who had had only two drinks. He testified that he was going to leave. Remarks of a casual and innocuous nature passed between Mr. Marinucci and Mrs. Bryant; nothing offensive was said by either, but, according to Mrs. Bryant, she did not enjoy having Mr. Marinucci around, and requested him to go away. Instead of complying Mr. Marinucci pinched her where she sat, which caused her to jump, but not to arise. This Mr. Marinucci firmly denied. Mr. Bryant appeared and questioned whether Mr. Marinucci was giving Mrs. Bryant a bad time, and when she answered in the affirmative, the combat started. Each participant accused the other of having struck the first blow. Mr. Marinucci wound up on the floor. He testified that Mr. Bryant grabbed one of his legs, twisted it, bent it and came down upon it with all his weight, which Mr. Bryant denied. The injuries, however, were severe. They necessitated surgical treatment, including the use over a period of weeks of a plaster cast. Mr. Bryant suffered a cut lip and injured his fist. Mrs. Bryant testified that the pinching was painful; when she got home she observed two 'finger marks' on her left buttocks and the following day they had turned purple; they remained for a couple of weeks and she suffered pain when she sat down hard. She received no medical attention for her injuries.

The points on the appeal are the following: (1) There was irregularity in questioning one of the jurors whether he understood the verdicts; (2) the questioning of Mrs. Bryant by her counsel as to her reasons for telling Mr. Marinucci to go away was unduly restricted; (3) the evidence was insufficient to justify the verdict; (4) the jurors were improperly permitted to separate from Friday until Monday; (5) there was an insufficient pleading of the items of special damages: (6) the court should have granted a new trial upon the ground of newly discovered evidence and misconduct of jurors.

On Friday afternoon the jurors had not agreed upon a verdict. They requested to be reinstructed in the law relating to punitive damages and the instructions were reread. At 5:30 p. m., a verdict had not been agreed upon and the court allowed the jurors to separate until Monday morning. On Monday morning a judge, other than Judge Huls, was presiding. After an hour's deliberation the jurors returned three verdicts. One was in favor of plaintiff against Richard Bryant in the sum of $10,000, compensatory damages. When polled as to this verdict, eight jurors answered 'yes' and four answered 'no.' The jury was polled again, still with four negative answers. Juror Berest answered 'no' and Mrs. Bean (No. 7) stated that in the jury room he had answered 'yes.' Juror Berest stated that he understood that he voted 'no on punitive damages' and asked whether he had made a mistake. The court explained that the verdict was for $10,000 compensatory damages and the juror said: 'Then I voted yes in that case. I didn't understand it was on the question of punitive damages only.' His vote was changed from 'no' to 'yes' and the verdict was received. The clerk then read a second verdict in favor of Marinucci and against Richard Bryant on the latter's cross-complaint. Mr. Berest was confused but when the verdict was explained voted 'yes.' The vote being nine to three, the verdict was received.

The clerk then read the verdict on the cross-complaint of Lillian Bryant which read that it was for 'cross-defendant W. J. Marinucci and against cross-complainant Lillian Bryant.' Mr. Berest was still confused and the court asked him: 'Well, did you vote in favor of either of the defendants and cross-complainants Bryant to receive anything? Juror No. 3: Against cross-defendant Bryant to receive any punitive damages.' The court then stated: 'Well, as I understand it, the two defendants filed cross-complaints, so they have cross-claims against the plaintiff. In that respect they, in effect, occupy the position of plaintiffs against the plaintiff who, in effect, is a defendant. They are called cross-complainants, that is, the defendants, and the plaintiff is called a cross-defendant. Now, do you understand that? Juror No. 3: Yes. The Court: In this instance this verdict is in favor of the cross-defendant and against the cross-complainants. This means that this verdict awards the defendants on their cross-claim, in which they are the cross-complainants, nothing as against the cross-defendant, who is the plaintiff. Juror No. 3: In other words, nothing is for whom, exactly?' Caught unawares by this surprising lack of understanding of the court's painstaking explanation, the court stated: 'Nothing for either of the defendants. This particular verdict names which cross-defendant? The Clerk: Cross-defendant is W. J. Marinucci. The Court: I mean cross-complainant. The Clerk: The cross-complainant in this one we are polling is Lillian Bryant.' As a last and late resort the court had Mrs. Bryant and Mr. Marinucci stand and explained which one was the cross-complainant and which the cross-defendant. When it was ascertained that the juror was voting that the lady who was standing would not get anything against the man who was standing, the third verdict was received.

Appellants say the jurors should have been sent back to the jury room. They rely upon section 618 of the Code of Civil Procedure which provides in part that if 'more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case.' The section is to be read with section 619: 'When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out.' There was no real disagreement. Juror Berest was confused by the use of the terms 'cross-complainants' and 'cross-defendant' and the court's explanation that in one aspect of the case the plaintiff was the defendant and the defendants were the plaintiffs. When the juror could forget those terms, and the court's elucidation of them, which was the sole cause of his confusion, and could identify the litigants in person, he had no difficulty in making it clear that he was on the side of Mr. Marinucci and against Mrs. Bryant. It was the duty of the court to ascertain the cause of the juror's confusion and to explain the meaning of the...