Van Zee v. Bayview Hardware Store

• Decision Date: 20 December 1968
• Citation: 268 Cal.App.2d 351,74 Cal.Rptr. 21
• Court: California Court of Appeals Court of Appeals
• Parties: William VAN ZEE, Jr., Plaintiff, Appellant and Respondent, v. BAYVIEW HARDWARE STORE, Zynolyte Products Co., Inc. and Clarence P. Monroe, Defendants, Respondents and Appellants. Civ. 23942.

Page 21

74 Cal.Rptr. 21

268 Cal.App.2d 351

William VAN ZEE, Jr., Plaintiff, Appellant and Respondent, v. BAYVIEW HARDWARE STORE, Zynolyte Products Co., Inc. and Clarence P. Monroe, Defendants, Respondents and Appellants.

Civ. 23942.

Court of Appeal, First District, Division 4, California.

Dec. 20, 1968.

Hearing Denied Feb. 13, 1969.

Hoberg, Finger, Brown & Abramson, San Francisco, for appellant.

Berry, Davis, Lewis & McInerney, Arnold B. Haims, Oakland, for respondent Bayview Hardware.

Lamb & Glynn, San Francisco, for respondent Zynolyte Products Co.

DEVINE, Presiding Justice.

Plaintiff was awarded judgment of $34,000 on a verdict because of injuries to his hand which were caused by the explosion of an aerosol paint can. The action was tried on the theories of strict liability and breach of warranty of fitness. Defendants at trial, against both of which judgment was rendered, were Bayview Hardware Store, which sold the can to plaintiff, and Zynolyte Products Co., Inc., purveyors of paint, which sold the can to Bayview Hardware. ¹

The trial judge made an order granting defendants' motion for new trial. From this order, plaintiff, William Van Zee, appeals. Two grounds for the order (together with the judge's reasons) are set forth in the order: misconduct of the jury and insufficiency of the evidence. Excessive damages were not given as a ground for the order. Plaintiff's occupation was that of a registered manipulator of safes and locks; wherefore, injuries to his hand were a serious matter.

I. MISCONDUCT OF THE JURY

The court's statement of misconduct is this:

'Misconduct of the jury in that the foreman of the jury, Edward F. Masuoka, during the course of the trial, and prior to the deliberation of the jury, personally conducted experiments in the basement of his home, utlizing an aerosol can of spray paint similar to the one involved in this case;

'That during the subsequent deliberations of the jurors upon their verdict in this case, the said foreman of the jury discussed with his fellow jurors the results of his said personal experiments; that the said jurors were influenced thereby in arriving at their verdict, to the prejudice of the rights of the said defendants.'

Masuoka's conduct had been reported, by the one juror who had dissented from the verdict, to an attorney for one of the defendants after the verdict was rendered. Masuoka described his experiment in his own affidavit. Several jurors submitted affidavits ² stating, in various ways, that the talk in the jury room about the experiment had been made after the issue of liability had been determined and was of no consequence to the jurors in arriving at their verdict.

Misconduct of the jury is stated to be a cause for new trial, if it materially affects the substantial rights of the moving party, in Code of Civil Procedure section 657, subdivision (2). But the same subdivision provides that the misconduct may be proved by affidavits of the jurors in one instance: when there has been resort to chance. To this single statutory exception the courts have added another: falsity of answers given by a venireman at voir dire man be shown by jurors' affidavits. (Kollert v. Cundiff, 50 Cal.2d 768, 773, 329 P.2d 897.) But these two are the only cases in which jurors may impeach their verdict by affidavit. (Sopp v. Smith, 59 Cal.2d 12, 27 Cal.Rptr. 593, 377 P.2d 649; Kollert v. Cundiff, supra; Maffeo v. Holmes, 47 Cal.App.2d 292, 117 P.2d 948.)

Jurors may not impeach their verdict, even by affidavits of their own misconduct. (Sopp v. Smith, supra, pp. 14--15, 27 Cal.Rptr. 593, 377 P.2d 649, and cases cited therein.) Misconduct of jurors may be proved by affidavits of other persons. (Anderson v. Pacific Gas & Elec. Co., 218 Cal.App.2d 726, 280, 32 Cal.Rptr. 328.) Thus, for example, in the case before us, someone might have seen the juror who was conducting the experiment and have made this fact known to the judge. But the only proffered evidence of the foreman's experiment and his talk about it with other jurors, was the jurors' affidavits, together with an affidavit of a defense attorney that report had been made to him by the one juror. This affidavit, setting forth the extrajudicial statement of a juror, was equally useless for the purpose of impeaching the verdict. (People v. Yeager, 194 Cal. 452, 229 P. 40; People v. Giminiani, 45 Cal.App.2d 535, 540, 114 P.2d 382; People v. Cahan, 141 Cal.App.2d 891, 902--903, 297 P.2d 715; People v. Schmitt, 155 Cal.App.2d 87, 117, 317 P.2d 673.)

Respondents cite to us, as they did to the trial judge, the 1896 case of People v. Conkling, 111 Cal. 616, 627, 44 P. 314, in which case two jurors had performed an experiment with a rifle as to the distance powder marks could be carried. But it is fairly clear that the affidavits were not those of jurors, because they are described as 'affidavits of certain parties,' which is not apt language for describing affidavits of jurors.

In Kollert v. Cundiff, supra, the foreman, during a night recess, had investigated traffic lights at the intersection where the accident occurred; and in Sopp v. Smith, supra, jurors had made experiments in driving automobiles at varying speeds (one of them using a stop watch) along the course which had been taken by the defendant. Their affidavits telling of these activities were held inadmissible for the purpose of impeaching the verdict.

Respondents seek to justify the admission of the affidavits, not only on the Conkling case, but also on the theory that the juror who conducted the experiment and who later became foreman had concealed his true intent at voir dire, in that he answered falsely the question whether he would decide the case solely on the evidence and the law. (The question was not directly put to him but was carried over by relation of the question and answer of another juror.) In order to sustain the admissibility of the affidavits on this theory, the misconduct must exist at the very time of the voir dire. (Winningar v. Bales, 194 Cal.App.2d 273, 14 Cal.Rptr. 908.) The proposition cannot be sustained in this case. Code of Civil Procedure section 657 now requires the judge to state his reasons for granting a motion for new trial. The judge did state his reasons, and we have quoted them above, for granting the motion because of misconduct. He said nothing about a false answer at the time of voir dire. The reason why he did not do so is plain. There was to affidavit about the juror's state of mind at the time of voir dire; there was an affidavit by the juror that he answered the questions truthfully. The voir dire was on March 3, 1966; the experiment was done on March 14, 1966. Testimony that only heating would have caused the explosion was not before the jury until March 10, 1966. It is incredible that the juror had formed the intention to perform the experiment at the time of voir dire and that he answered untruthfully the question put to him.

The case is to be distinguished from those cited by respondents; Estate of Mesner, 77 Cal.App.2d 667, 176 P.2d 70, in which a juror had concealed the low opinion which he had of an attorney who was the draftsman of the will in question; and Noll v. Lee, 221 Cal.App.2d 81, 34 Cal.Rptr. 223, in which a juror had decided, even at the time of voir dire, that he was going to research the law himself and to instruct his fellow jurors thereon.

The order granting motion for new trial cannot be sustained on the ground of misconduct of the jury.

II. SUMMARY OF THE EVIDENCE

Plaintiff testified that on the day of the accident he had completed repairs on a safe door, and had only the painting to do. He had purchased several cans of paint two days before at Bayview Hardware Store. He had stored the paint, in its bag, on the shelves near the work bench. There is no heat source in the immediate vicinity of the shelves. The can he selected for use that day had not been previously used. Just as he picked up the paint can, the phone rang, and he entered the office to answer it. He set the can on the desk near the phone. There was a small gas heater with a flat top near the desk, the pilot light of which was on at all times. It is uncertain whether the heater was fully on at the time. The telephone conversation was short--about half a minute or so. Plaintiff then picked up the can and started into the shop.

It is conceded that the can exploded. A customer was entering the store almost at the moment of the incident, and not only saw paint splattered all over plaintiff's person but also heard the noise of the explosion.

Plaintiff produced a structural engineer, Mr. George Washington, whose opinion was that the defect in the can which caused the explosion was that of the seam of the can, in these respects: The seam was composed of tabs which had been crimped together and bound by solder. It was possible, the expert testified, that in the process of crimping and flattening the tabs under great pressure one or more of the tabs were weakened. He testified that solder tends to creep, and that as this can had been manufactured some two years prior to the accident, this creep may have been a cause of the failure. Further, he testified that the interdependence of the two fastening methods, crimping and soldering, results in a very questionable basic design, and that there are gaps in the distribution of the solder. The result of failure under pressure would cause the seam to tear apart, the top and bottom of the can would fly off, and there would be general disintegration of the can structure in the matter of a moment.

The testimony of the expert, however, could have been deemed unconvincing by the trial judge in his review of the evidence. The expert is a structural and civil engineer, but he has taken no courses in metallurgy. He had testified in other cases involving elevator parts and stairways. The texts which he relied on in testifying about the metals involved had made no specific...