Dunford v. General Water Heater Corp. , 150 Cal. App. 2d 260 ( 1957 )

MOORE, P. J.

Bruce Dunford, a minor, through his mother Rose, as guardian ad litem, sued defendants for damages on account of injuries received when riding his bicycle on a public highway. He was struck by a vehicle of defendant corporation operated by defendant Camel, an employee. Also, Rose sued on her own behalf for loss of wages while nursing Bruce. The jury returned a verdict in favor of defendants and judgment was entered thereon. Plaintiffs filed their motion for a new trial on the statutory grounds: (1) irregularity in proceedings of the jury, by which plaintiffs were prevented from having a fair trial; (2) misconduct of the jury, and (3) error in law occurring at the trial and excepted to by plaintiffs. It was denied.

Plaintiffs now demand reversal on the sole ground that the trial court erred in denying their motion. They claim that the foreman of the jury, Miss Goodwin, gave untrue answers and concealed beliefs and prejudices when questioned on voir dire which, had the truth been disclosed on the examination, would have given rise to a successful challenge for cause or, failing that, would have justified counsel for plaintiffs in exercising a peremptory challenge. It is contended this was an irregularity in proceedings of the jury which prevented plaintiffs from having a fair trial, relying primarily upon Shipley v. Permanente Hospital, 127 Cal.App.2d 417 [274 P.2d 53, 48 A.L.R.2d 964]. That the cited case is not a happy decision for guidance will hereinafter appear from the record of the trial and of the proofs admitted on the hearing of the motion for a new trial. There was no evidence that any juror consciously concealed his true sentiments with respect to the nature of the action or with reference to the issues involved.

Prom the averments in the affidavits filed in support of and in opposition to the motion for new trial, the following alleged facts appear:

Mr. Strock, counsel for plaintiffs in charge of the trial, averred in his affidavit in support of the motion that while not one of the first 12 prospective jurors to be seated, Miss Goodwin was in the courtroom during the examination of the others prior to her being called; that she heard the judge inform the prospective jurors of the nature of the ease and ask them “if there was anything about the nature of the case, or its parties, which would cause any juror to be prejudiced or biased”; that no prospective juror, including Miss Goodwin, made an affirmative answer. In reply to questions addressed to her, Miss Goodwin stated in substance that she was employed as private secretary to a vice president of a steamship company; there was nothing in her mind, thinking or emotional and mental conditioning that would prevent her from giving a fair verdict on the facts and according to the law and instructions given by the judge to each and every party to the action; that she had no mental or emotional attitudes or reservations that could prevent or influence her from arriving at a fair verdict; that her verdict would not and could not be influenced by the mere fact that plaintiffs were a boy and his mother or that one defendant was a truck driver and the other was a large corporation; and that if she were in the position of attorney for plaintiff she would be satisfied with a juror like herself.

The affidavit further averred that Miss Goodwin, and the other prospective jurors, were asked by affiant: “Whether the juror, by reason of philosophical or religious conviction, or otherwise, believed that a person who had suffered personal injuries because of the negligence of another should not seek redress in a court of law. That question was always answered in the negative; the answers always were that the jurors had nothing against an injured person who went to court for compensation for his injuries. ’ ’

Mr. Stroek’s affidavit sets forth that after the close of the trial he came upon Miss Goodwin in the company of several other jurors, Mr. Shield, counsel for defendants, and Mr. Mallicoat, associate counsel for plaintiffs. “Then and there, I inquired of those jurors generally, but particularly to Miss Goodwin, of their reasons for their verdict . . . Miss Goodwin . . . stated . . . she was then employed by a large corporation and an executive thereof; she knew that large corporations did not like to be bothered by such lawsuits; that such corporations always made fair and reasonable offers of settlement in such cases; that she assumed that since a defendant was a eorporation, a fair offer of settlement had been made by it to plaintiffs; that she could not understand why that offer had not been accepted. Mr. Shield then informed her that an insurance company was involved and that any offers of settlement would be made through the insurance company. Miss Goodwin then stated that was the same thing in her mind. I then asked her if she believed that insurance companies and corporate defendants always make fair offers where personal injury claims are made against them. She answered that, ‘Yes,’ and added that she believed that the fairness of the offers made by insurance companies was due to their extensive experience in the field. I then and there inquired of Miss Goodwin if at the time of the voir dire she held the same beliefs she had just expressed, and she said she did.” Mr. Stroek’s affidavit then averred, in effect, that had he known of Miss Goodwin’s beliefs, as expressed by her after the trial, at the time of her voir dire examination, he would have challenged her for cause or peremptorily have excused her.

The only affidavit in opposition to the motion was that of Miss Goodwin. She did not deny the conversation as averred in Mr. Stroek’s affidavit, but stated as follows:

“At the time of the voir dire examination of the jury and throughout the trial of the case and during the deliberations of the jury, I was not prejudiced for or against any party to the action.

“The subjects of large corporations, insurance companies, and the settlement of eases were never discussed during the deliberations of the jury by myself or by any other member of the jury. These matters never entered my mind until they were interjected by Mr. Strock into a conversation in the corridor outside the court, after the verdict was returned.

“The verdict of the jury in this ease, as far as I was concerned, was reached by a mature consideration of the evidence and by following the instructions of law given hy the court. ’ ’

Plaintiffs urge that had Miss Goodwin disclosed on voir dire the beliefs she later expressed after the verdict she would have been subject to challenge for cause and that her allegedly untrue answers on voir dire constituted an irregularity in the proceedings of the jury that prevented plaintiffs from having a fair trial. They rely upon Shipley v. Permanente Hospital, supra, 127 Cal.App.2d 417, in which case the court affirmed an order granting a new trial. The order there made was based primarily upon affidavits of jnrors which disclosed that certain of their number were disqualified and gave untrue answers on voir ¿tire and thereby failed to reveal their disqualification. But in that case, the appellate court had before it a complete record of the voir dire examination. Also, the affidavits were by the jurors themselves instead of hearsay affidavits of counsel. There is nothing in the record of questions asked Miss Goodwin which should have called to her mind at that time her beliefs and sentiments which she later expressed to Mr. Strock after the rendition of the verdict and the discharge of the jury. In the Shipley case, the court held that jurors’ failure to reveal disqualification constituted irregularity in the proceedings of the jury which prevented the complaining party from having a fair trial. Also, it held that the granting of a motion for a new trial rests so completely within the discretion of the trial court that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. This rule applies equally to an order denying a new trial. Such order will not be disturbed except upon an “affirmative showing of a gross, manifest or unmistakable abuse of discretion. ” (Schultz v. Sussman, 7 Cal.App.2d 100, 102 [45 P.2d 409].)

We do not determine whether Miss Goodwin’s answers on voir dire were untrue and constituted an irregularity in the proceedings of the jury which prevented plaintiffs from having a fair trial, for the reason that plaintiffs have failed to supply us with the record of the voir dire.proceedings by which only could that question be determined from the record.^* It is incumbent upon an appellant to present a record which affirmatively shows error on its face, and where, as here, it is claimed a juror made false answers on voir dire examination, the question can be resolved only by an examination of the stenographic report of the voir dire proceedings. Appellants have furnished us with no such report but rely solely upon the affidavits of counsel summarizing such examination. This method of presenting the questions and answers on voir dire may be sufficient in the lower court where the trial judge has heard the proceedings, but not in an appellate court where the proceedings are in print and take life from the law. In the case at bar, the affidavits of counsel for plaintiffs are equivocal and do not present a complete and accurate picture of the questions and answers. For example, Mr. Strock in his affidavit avers: “A general question I often put to prospective jurors during that voir dire examination, heard by Miss Goodwin, and probably directly addressed to her, was in effect...” By what character of clairvoyance can this court determine from such inconclusive averments whether Miss Goodwin was asked questions which, if truthfully answered, would have brought out bias and prejudice, if any existed? Furthermore, although Mr. Strock averred that Miss Goodwin stated to him that she held her ideas at the time of the voir dire, this she denied and stated in her affidavit that: “These matters never entered my mind until they were interjected by Mr. Strock into a conversation in the corridor outside the court, after the verdict was returned.” It is clear that without a stenographic report of the voir dire examination this court cannot determine whether questions were asked Miss Goodwin which should have called to her mind at that time her alleged bias and preconceived ideas about fair offers of settlement.

But in addition to the insufficiency of the record, the appeal must fail for lack of complete affidavits in the lower court in support of the motion for a new trial. It is essential, not only that there be affidavits showing that plaintiffs’ counsel were ignorant of the facts constituting the claimed misconduct prior to the rendition of the verdict, but also that plaintiffs file an affidavit to the same effect, stating that they had no knowledge prior to the rendition of the verdict. (Foreman v. Alexander’s Markets, 138 Cal.App.2d 671, 674-676 [292 P.2d 257]; Sherwin v. Southern Pac. Co., 168 Cal. 722, 726 [145 P. 92]; Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 694 [262 P.2d 95]; Gray v. Robinson, 33 Cal.App.2d 177, 183 [91 P.2d 194] ; Lafferty v. Market Street Ry. Co., 7 Cal.App.2d 698, 702-703 [46 P.2d 996] ; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 495 [55 P.2d 870].)

In Forman v. Alexander’s Markets, supra, this court held (p. 675) : that plaintiffs had failed to show affirmatively in support of their motion for a new trial that both they and their counsel were ignorant of the facts constituting the asserted misconduct prior to the rendition of the verdict; that the absence of such a showing in support of the motion for a new trial is fatal; that plaintiffs having failed to make the affirmative showing that neither they nor their counsel had knowledge of the misconduct relied on prior to the rendition of the verdict, the order denying their motion for a new trial was properly made. By reason of the absence of such requirements, to grant the motion would have been reversible error.

The same rule is applicable in the case at bar. Plaintiffs not only failed to supply a sufficient record by which to pass upon the merits of the case, but also they failed to provide the lower court with the necessary affidavits in support of their motion. Since all intendments are in favor of the order of the trial court (Schultz v. Sussman, supra, 7 Cal.App.2d 100; MacPherson v. West Coast Transit Co., 94 Cal.App. 463, 468 [271 P. 509] ; Lindemann v. San Joaquin Cotton Oil Co., supra; Estate of Mesner, 77 Cal.App.2d 667, 677 [176 P.2d 70]), and because prejudice must be affirmatively shown by the party seeking a new trial (Anderson v. Pacific Tank Lines, 52 Cal.App.2d 244, 249 [126 P.2d 153]), the plaintiffs have failed to show an abuse of discretion on the part of the trial court in denying the motion.

Judgment affirmed.

Pox, J., concurred.

* Neither do we consider or pass upon the question of whether or not concealment or untrue answers by a venireman on voir dire examination are required to be intentional or conscious in order to justify a new trial on the ground of irregularity in the proceedings of the jury.