Smith v. Covell

• Decision Date: 11 January 1980
• Citation: 161 Cal.Rptr. 377,100 Cal.App.3d 947
• Parties: Allene D. SMITH et al., Plaintiffs and Appellants, v. Florence COVELL, Defendant and Respondent. Civ. 18186.
• Court: California Court of Appeals

Page 377

161 Cal.Rptr. 377

100 Cal.App.3d 947

Allene D. SMITH et al., Plaintiffs and Appellants, v.Florence COVELL, Defendant and Respondent.

Civ. 18186.

Court of Appeal, Fourth District, Division 1, California.

Jan. 11, 1980.

Frederick Hetter, II, San Diego, S. Robert Groot, Whittier, and Richard Pray, San Diego, for plaintiffs and appellants.

Shifflet & Sharp and William Shifflet, San Diego, for defendant and respondent.

STANIFORTH, Associate Justice.

Plaintiffs' action is for personal injuries sustained by Allene D. Smith and for loss of consortium suffered by her husband, Clyde O. Smith, arising out of an automobile collision.DefendantFlorence Covell conceded liability and the absence of any contributory negligence.After a trial solely on the issue of damages, the jury returned a verdict in favor of Allene D. Smith for the sum of $10,000 and a verdict of zero as to plaintiffClyde O. Smith.Plaintiffs moved for a new trial and upon its denial appeal the judgment.

FACTS

On August 12, 1974, Covell's car ran into the rear end of the car owned and occupied by passenger Allene D. Smith, driven by her daughter.The Smith car was stopped at a pedestrian crosswalk at the time of the collision.The following day, Mrs. Smith consulted with orthopedic surgeon Dr. McMurray.She complained of pain in the neck, shoulders and upper extremities.At this initial consultation, she made no complaints referable to her lower back, other than a pre-existing lumbosacral, low back pain.On September 24, 1974, six weeks after the accident, Dr. McMurray's records indicated that Mrs. Smith was experiencing pain in the low back region.On November 11 of that year, she experienced a "new pain" which was associated with lifting of china from a shelf.On March 11, 1975, Dr. McMurray performed a myelogram which revealed a herniated disc at the L4/L5 level.The doctor performed a laminectomy at Scripps Memorial Hospital and removed the herniated disc.Mrs. Smith continued to complain of pain.Mrs. Smith later consulted a neurologist, Dr. Woods.In the opinion of both Dr. McMurray and Dr. Woods, both the neck and the low back injuries were the result of the automobile collision.The defendant called two medical witnesses, Dr. Schultz and Dr. Cobb, orthopedist and neurosurgeon respectively.Dr. Schultz was of the opinion the present disability was related to pre-existing factors; Dr. Cobb was also of the opinion the disability was related to pre-existing factors or subsequent injury to the low back.

After return of their verdicts, a poll of the jury showed a nine-to-three vote in favor of the verdicts.

DISCUSSION

The plaintiffs complain of a melange of jury errors, defense counsel errors and trial court errors as the basis for this appeal.We examine the contentions in the order of their presentation.

I

Plaintiffs contend the judgment must be reversed and a new trial granted upon the grounds of jury misconduct.In connection with their motion for new trial, plaintiffs filed the declarations of two dissenting jurors, Donna M. Allen and Mary R. Leonard.These declarations stand uncontradicted, detail several acts of juror misconduct.

On voir dire examination of prospective juror Richard M. Cox(subsequently foreman), he stated he had a back condition, namely spondylolisthesis, which had been afflicting him since birth and which had been aggravated by a baseball injury many years ago.Mr. Cox represented in response to a court question he would, if selected, base his decision solely upon the testimony and the evidence that he would hear from the case"as distinguished from (his) own experience with (his) own problem; . . ."Declarations of jurors Allen and Cox indicate that foreman Cox communicated the following matters concerning his own back condition to other jurors, both before and during the jury's deliberation.Cox, in discussion of the question of whether Mrs. Smith should have complained of the low back pain shortly after the accident, informed his fellow jurors when his back "went out" it "went out right away" and "hurt right away."He also told the other jurors when his back went out he could still go to work.

Such conduct is clearly impermissible.Jurors cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case.(People v. Lessard, 58 Cal.2d 447, 454, 25 Cal.Rptr. 78, 375 P.2d 46.)

"(I)t is misconduct for a juror during the trial to discuss the matter under investigation outside the court or to receive any information on the subject of the litigation except in open court and in the manner provided by law.Such misconduct Unless shown by the prevailing party to have been harmless will invalidate the verdict."(Kritzer v. Citron, 101 Cal.App.2d 33, 36, 224 P.2d 808, 809;italics added.)

And in People ex rel. Dept. Pub. Wks. v. Curtis, 255 Cal.App.2d 378, 390, 63 Cal.Rptr. 138, it was held a juror violated his duty when he communicated to fellow jurors during deliberations information as to the "higher qualifications" of the appraisers of the party prevailing in a condemnation case.Where a juror communicated to other jurors during deliberation out-of-court knowledge as to whether a tree limb would catch fire from contact with a power line, such wrongdoing was a "showing . . . patently adequate to support . . . granting a new trial upon the ground of jury misconduct."(People v. Southern Cal. Edison Co., 56 Cal.App.3d 593, 598, 128 Cal.Rptr. 697, 701.)

And in Tunmore v. McLeish, 45 Cal.App. 266, 187 P. 443, two jurors viewed the motorcycle involved in an accident case during a recess before it was admitted into evidence and commented that the speedometer could not have been seen by plaintiff's wife.The misconduct was error justifying a new trial.Further, in Walter v. Ayvasian, 134 Cal.App. 360, 363, 25 P.2d 526, it was held reversible error for a juror to ascertain by a phone call to her family physician that 190 was a dangerous blood pressure where expert testimony was conflicting.In Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 104, 95 Cal.Rptr. 516, 485 P.2d 1132, a juror commented about " 'how good Kaiser Hospital was.' "This was held an irregularity in the jury proceedings as well as a concealment of bias.

These same acts of misconduct may be cited both as evidence of a concealed bias and as an objective fact likely to have improperly influenced the jury's verdict.(Weathers v. Kaiser Foundation Hospitals, supra, at p. 104, 95 Cal.Rptr. 516, 485 P.2d 1132.)

Cox, in concealing his biases on voir dire and in communicating his "evidence" observations, opinions to his fellow jurors was committing acts of juror misconduct.The question remains: Did such misconduct result in such prejudice to the plaintiffs' cause as to require reversal of the judgment?In People v. Honeycutt, 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 700, 570 P.2d 1050, 1052, the Supreme Court repeated this long-established rule: "(A) presumption of prejudice arises from any juror misconduct (which) . . . presumption may be rebutted by proof that no prejudice actually resulted."The presumption of harm remains in this record unrebutted.Moreover, an analysis of the fact of this case demonstrates a reasonable probability of actual harm.The jury's verdict, when viewed in light of evidence most favorable to it, gave no award, or only token award, for Mrs. Smith's general damages.And no award whatsoever was made to the husband where the evidence of his loss of consortium was uncontradicted.This verdict was the end product of a trial in which the question of whether Mrs. Smith's injury to her lower back and the herniated disc were the result of the rear end collision was perhaps the most critical factual issue in the case.The defense doctors stated they did not believe the accident caused the herniated disc because Mrs. Smith had not complained of the low back pain within 72 hours after the accident.Thus the medical testimony in this case was in sharp conflict.The "evidence" that Cox's back hurt him immediately when it went out tended to support the defense doctors' conclusions that the automobile collision could not have caused Mrs. Smith's low back injury in that she did not complain of it within 48 to 72 hours.Further, Cox's statement he was able to work when his back "went out" supports the defense counsel's insinuation that Mrs. Smith's pain and disability were of psychological origin.

Cox's statement made to his fellow jurors interjected improper "evidence" at this most critical point in the case.Had juror Cox's communication been revealed in open court, evidence could possibly have been introduced to distinguish the injuries.By communicating his "evidence" to the jurors outside the court, foreman Cox precluded the plaintiffs from testing it or making an answer and thus deprived the plaintiffs of due process of law.

II

Plaintiffs complain of further juror misconduct.Prospective juror Starets was asked by the court on voir dire: "Is there anything about this particular type of a lawsuit, a suit to recover damages for personal injuries and lost earnings and medical expenses and loss of the injured person's society and companionship, anything about those claims that would in any way interfere with your ability to give both sides a fair trial?In other words, may we assume that none of you feel that this type of claim or these types of claims should not be litigated in court?"Starets made no affirmative response to this question.But during jury deliberations, juror Starets stated to fellow jurors he was against people suing one another, that awarding high verdicts in cases like this was the cause of high insurance rates, and that a high verdict in this case would have a similar effect.

Starets, in making the latter statements, was offering outside evidence as to the impact of personal injury litigation on insurance rates.These improper...