Noll v. Lee

• Decision Date: 10 October 1963
• Citation: 221 Cal.App.2d 81,34 Cal.Rptr. 223
• Court: California Court of Appeals Court of Appeals
• Parties: Freeman A. NOLL, Plaintiff and Appellant, v. Robert E. LEE, Defendant and Respondent. Civ. 27194.

Page 223

34 Cal.Rptr. 223

221 Cal.App.2d 81

Freeman A. NOLL, Plaintiff and Appellant, v. Robert E. LEE, Defendant and Respondent.

Civ. 27194.

District Court of Appeal, Second District, Division 2, California.

Oct. 10, 1963.

Hearing Denied Dec. 4, 1963.

Smith, Butts & Dickman, Toxey H. Smith, Hollywood, Benjamin Reinhardt, Van Nuys, Robert S. Butts, Hollywood, for appellant.

Wyman, Finell & Rothman, Charles L. Fonarow, Beverly Hills, for respondent.

HERNDON, Justice.

Plaintiff appeals from the judgment entered upon a 'nine to three' jury verdict in defendant's favor. The only assignment of error is that the trial court erred in denying plaintiff's motion for a new trial when it became known, following the receipt of the jury's verdict, that one of the jurors had taken a copy of the vehicle code into the jury room and had read to the other members of the jury certain sections of said code which had not been included in the court's instructions.

The action was one for damages for personal injuries arising out of an automobile accident which occurred on the Ventura freeway on April 6, 1960. Defendant was driving a station wagon and was carrying a stepladder, an electrical extension cord and certain other materials and equipment therein. The stepladder, extension cord and several pieces of lumber fell from defendant's station wagon into the path of plaintiff's automobile. Plaintiff stopped his automobile on the center divider and then attempted to remove the fallen articles from the freeway. While so engaged he was struck by another vehicle.

The correctness of the instructions given the jury is not questioned on this appeal. In substance, these instructions set forth the law applicable to the issues of negligence and contributory negligence in cases where the plaintiff had placed himself in a dangerous position in an effort to protect the safety of others from the consequences stemming from the alleged initial negligence of the defendant. Sections of the Vehicle Code relating to 'spilled loads' (section 23114) and pedestrians (section 21954(a)) were also requested and given, together with instructions relating to the presumptions arising from violations of such statutes.

After the jury had returned its verdict, the events that form the factual basis of this appeal were disclosed. It is conceded that neither counsel nor the court should be regarded as blameworthy for failing to make an earlier discovery of the facts here presented.

The affidavit of the offending juror, which was filed in support of plaintiff's motion for a new trial, reads as follows:

'My name is Ernst Fischer and I live at 2311 Baxter St., Los Angeles, California. I served on the jury in the case of Noll versus Stoffer.

'The verdict rendered in the Noll versus Stoffer case which involved a pedestrian violating the right of way of a car while picking up objects on the freeway is absolutely correct. The vehicle code is very plain on this point. I checked the vehicle code on this point and found several provisions which applied to this case. I read these sections to jury and most of them agreed with the law I read. There were a few jurors who were sympathetic to the plaintiff because he was injured. These jurors wanted the Judge to re-read the instructions, but this did not change the opinion of the majority of the jurors. When the judge re-instructed the jury he mentioned one of the vehicle code sections I had already read to the jury and which most of the jury agreed with me applied to the case. In my service on juries I have found that most jurors are very vague on the law and do not understand the many instructions read by the Judge. This is the reason I carry the vehicle code with me at all times. I had it with me when I was accepted as a juror and while the attorneys were asking me questions before I became a juror. I think that all jurors should have a copy of the vehicle code with them on all cases involving vehicles. The vehicle code sections which controlled this case are V.C. Sect. 23331 and 23332. * * *'

Additional affidavits of four other members of the jury are to the effect that juror Fischer had a copy of the Vehicle Code in the jury room during their deliberations; that he read excerpts therefrom to the other jurors after they had been instructed by the trial court, and that Fischer made reference thereto on occasion.

By way of opposition to plaintiff's motion, defendant obtained and filed three counter affidavits sworn to by juror Fischer on October 5, 1962. In material part they read as follows:

(1) 'On September 15, 1962, a person came to my home and asked if he could question me regarding some of my experiences as a juror. He told me that he was a representative of a group of attorneys who were desirous of making some changes in the system of jury deliberation in this state. At no time did he tell me that he was a representative of Mr. Freeman Noll or a representative of Mr. Toxey Smith. The first time that I was certain of the fact that he was a representative of Mr. Noll and Mr. Smith was when I was definitely informed of that fact by Mr. Milton Yusim in a telephone conversation that I had with him on October 4, 1962, when he telephoned my home.

'The affidavit dated September 15, 1962, that bears my signature was completely prepared and typed by some unknown person before it was brought to me and shown to me on September 15, 1962. At no time did I dictate the content of that affidavit before it was typed. That portion of the affidavit which states 'I had it (the Vehicle Code) with me when I was accepted as a juror and while the attorneys were asking me questions before I became a juror', that portion is untrue. Although I stated in that affidavit that all jurors should have a copy of the Vehicle Code with them on all cases involving vehicles, I did not intend to imply or suggest in any way by that statement that jurors who are selected to hear a case should not follow all of the court's instructions in rendering their decision.

'I regret that I did not read the affidavit of September 15, 1962 over more carefully or I would have discovered the mistakes that are contained therein. I was told by the person who presented the affidavit to me that it was to be used in an attempt to improve the jury system by a group of attorneys who wanted to make some changes to permit typewritten copies of the court's instructions to be brought into the jury room during their deliberation. When I questioned the investigator that presented the affidavit of September 15, 1962 to me as to whether or not the statement was to be used in any way in connection with the case of Noll vs. Lee, he told me that it was not to be so used.

'Although the affidavit states that my statements were sworn to before a notary public, I was never asked to swear to any of the statements contained therein.

'I regret that I did not know or appreciate the seriousness and the use that was going to be made of the affidavit before. If I had so appreciated the seriousness of the situation, I would have read the affidavit more carefully. I was simply informed that the investigator had affidavits of twenty other jurors that had been obtained in the jury assembly room for the purpose of making changes in the method of jury deliberation.'

(2) 'When I retired to the jury room to deliberate in the case of Noll v. Lee, I entered that jury room as an unbiased juror intending to render a decision without regard to passion, prejudice, or bias for or against either party. When the court instructed us on the law to be followed, before we deliberated I listened carefully to the instructions of the court and I fully intended to and would to the best of my ability apply the law as instructed by the court to the facts of this case in my deliberation. I truthfully felt as did eight other jurors, that based upon the evidence presented and the law as instructed by the court, that Mr. Noll was not entitled to a verdict and therefore, I honestly and truthfully rendered my verdict for the defendant and following the instructions as given by the court in connection with this case. Although I had in my possession a summary of the California Vehicles Code at the time the jury was deliberating, it was my opinion as well as the opinion of eight other jurors that the defendant was entitled to a verdict based upon the law that had been read to us by the Judge in the court room. The possession or reading of the summary of the Vehicle Code of the State of California did not alter my position that the defendant was entitled to a verdict based upon the court's instructions. Although I read one portion of the summary of the California Vehicle Code, I can truthfully and honestly state that my verdict and the verdict of the eight other jurors would have been the same even if I had been without the summary of the Vehicle Code in my possession.'

(3) 'I was questioned by both attorneys regarding my qualifications to sit as a juror before being selected as a juror to hear the case. I truthfully and honestly answered all such questions which were asked of me.

'While being questioned regarding my qualifications to sit as a juror, I was asked if I would follow the court's instructions regarding the law to be applied in this case. I answered that I would follow the court's instructions and when I so answered in the affirmative, it was my truthful intention to follow the court's instructions. My true intentions were to follow and apply the law as the court would instruct. At no time did I conceal either intentionally or unintentionally any of my motives or intentions in this case. When I was sworn in as a member of the jury, I was completely impartial and had no bias or prejudice for or against either of the parties. I truly intended to listen to all of the evidence and to render my verdict based upon the evidence that was presented and the law to be instructed by the court.'

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