Sopp v. Smith , 59 Cal. 2d 12 ( 1963 )

SCHAUER, J.

Plaintiffs appeal from a judgment for defendant, entered upon a jury verdict, in an action to recover for personal injuries allegedly resulting from a collision between an automobile driven by plaintiff Evelyn Soon and a vehicle driven by defendant. As hereinafter appears we have concluded that the trial court did not err in denying plaintiffs’ motion for a new trial, based on asserted misconduct of two jurors. The judgment should therefore be affirmed.

This appeal is presented on a clerk’s transcript alone. Therefrom it appears that plaintiffs filed six affidavits in support of their motion for a new trial. Three of the affidavits were by jurors who had heard the case. That of juror Linton stated that during a recess in the trial he had gone alone in his own automobile to the scene of the accident, where he “viewed courses and distances; . . . stepped off the course allegedly taken . . . ; that he studied the gravelled area; that he drove his own auto over the routes . . . ; that he did this to cheek visibility; road conditions, and distances; that thereafter further evidence was taken; . . . that your affiant thereafter participated in the decision and discussion of the pase in the jury room; that the first vote was ten to two for the defendant; that your affiant voted at all times for the defendant. ’ ’

Juror Webb in his affidavit deposes that “after all evidence had been presented; and the respective attorneys had closed their arguments at approximately 7:00 p. m. on Saturday, April 1, 1961,” he took his family for a drive the following day, to the scene of the accident; that “he viewed the distances and courses testified to by various witnesses; that at varying speeds he drove his own auto . . . and timed portions of it with a stop watch . . . along the course reportedly taken by the colliding vehicle of defendant; that the view was taken to get an idea of vision by the drivers and probable general position of autos at the time of the accident and to verify the accuracy of assertions made by counsel during the trial regarding distances and time required for the same . . . and affiants [s-ic] previous observation regarding alleged speeds, and distance travelled per second, courses, grades, road conditions and general physical features of the area.” Affiant Webb also stated that he voted in favor of defendant.

Juror Oaley deposed that both she and another juror, Mr. Carter, voted for plaintiffs upon the first ballot; that all twelve jurors “participated in the discussion preliminary to the.decision.”

Affidavits of each of the two plaintiffs and of their counsel relate hearsay statements made to themselves following the trial, concerning the alleged misconduct, and further state that they knew nothing of the alleged misconduct until after rendition of the verdict.

A poll of the jury in open court at the time the verdict was rendered showed a unanimous ballot for defendant.

The trial court’s order declares that plaintiffs’ motion for a new trial “is denied on the sole ground that the affidavits of jurors Webb and Linton are inadmissible.”

In this view the court was correct, under long-established principles. As declared in Kollert v. Cundiff (1958) 50 Cal.2d 768, 772 [3] [329 P.2d 897], “It is the general rule in California that affidavits of jurors may not be used to impeach a verdict.” Various examples are there given oE application of the rule, including People v. Evans (1952) 39 Cal.2d 242, 250 [4] [246 P.2d 636] and People v. Azoff (1895) 105 Cal. 632, 633-635 [39 P. 59] (evidence received out of court), and Maffeo v. Holmes (1941) 47 Cal.App.2d 292-297 [1-4] [117 P.2d 948] (independent investigation by some jurors).

The Kollert case also points out (p. 773 [4a] of 50 Cal.2d) that California recognizes two exceptions to the rule, one created by statute (resort to chance, Code Civ. Proc., § 657, subd. 2), and the other by judicial decision (bias or disqualification of a juror concealed by false answers on voir dire), and further emphasizes that (pp. 773-774 [5]) “The problem involves the balancing of two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harrassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury. The court in McDonald v. Pless (1915) 238 U.S. 264, 267-269 [35 S.Ct. 783, 59 L.Ed. 1300], after discussing these policies and stating that the wrong to the individual was the lesser of two evils, concluded that as a general rule the affidavits should be excluded but that there might be instances where the rule could not be applied without ‘violating the plainest principles of justice.’ ” Having thus expressly recognized and considered the conflicting policies, we reject plaintiffs’ plea to create a further exception.

Nevertheless, it is urged on behalf of plaintiffs that another exception should be made by way of distinction based on the fact that here the offending jurors confessed their own misconduct whereas in at least some of the cited cases upholding the rule the prohibited affidavits were made by certain jurors accusing other jurors of misconduct (see e.g., Kollert v. Cundiff (1958), supra, 50 Cal.2d 768, 772; Maffeo v. Holmes (1941), supra, 47 Cal.App.2d 292, 294). Not only does such a distinction appear untenable (see e.g., the following cases in which it appears that the affidavits were made by the wrongdoing jurors: People v. Azoff (1895), supra, 105 Cal. 632, 633; Watson v. Los Angeles Transit Lines (1958) 157 Cal.App.2d 112, 116 [2a] [320 P.2d 890]; George v. City of Los Angeles (1942) 51 Cal.App.2d 311, 320 [10] [124 P.2d 872]; Snoffer v. City of Los Angeles (1935) 6 Cal.App.2d 14, 16 [1] [43 P.2d 852]); but as in Kollert (p. 774 of 50 Cal.2d) we are of the view that the averments of jurors Webb and Linton in the subject case, even if taken as true, do not warrant a departure from the general rule. Polling of the jury in open court disclosed a unanimous verdict. Further, we have not been provided with a reporter’s transcript and are in no position to determine whether or not the activities of the two jurors on their independent visits to the scene of the accident could have had a significant bearing on the outcome of the case. It may, however, be noted that the clerk’s minutes show that at the commencement of trial all of the jurors were taken to the scene, where counsel for the respective parties indicated “points of interest to the jury.”

For the reasons above stated the judgment is affirmed.

Gibson, C. J., Traynor, J., McComb, J., and Tobriner, J., concurred.