DeWit v. Glazier

After trial by jury in a malpractice action, a verdict was rendered in favor of the defendant doctors, upon which judgment was entered. A motion for new trial was denied. In her appeal from the judgment plaintiff seeks a review of the propriety of such order.

The limited record before us for purposes of this appeal consists of the clerk’s transcript, a partial reporter’s transcript comprising the voir dire examination of the prospective jurors, and a transcript of the proceedings at the hearing of the motion for new trial.

Each of the other nine jurors filed counteraffidavits. In his, affiant Donald Lewis, the foreman of the jurors, categoricaly denied making the statement with reference to gambling imputed to him by Mrs. Armendariz and denied hearing any juror make any of the other statements alleged in the Armendariz, Rush and Koechling affidavits. He asserted that he viewed the case with an open mind, that he saw no evidence of prejudice or bias in favor of either plaintiff or defendants and that the deliberations were conducted conscientiously and fairly, in accordance with the evidence and instructions of the court.

Juror Klein stated in her affidavit that she made a reference to the fact that her former husband had peritonitis 20 years ago and was still alive. She described the circumstances as follows: Mrs. Armendariz, in the course of the deliberations, had remarked that someone she knew had died of peritonitis less than two weeks after an operation and that Mr. DeWit might have died of the same cause. Thereafter, while the jury was getting ready for lunch, Mrs. Klein spoke to Mrs. Armendariz alone and outside the hearing of other jurors. In answer to Mrs. Armendariz’ example, Mrs. Klein referred to the fact that her ex-husband lived for 20 years after developing peritonitis following surgery, and that it was not necessarily fatal, and in view of the fact that Mr. DeWit had lived some two and a half months after the surgery, affiant couldn’t see any connection between peritonitis and his death. Mrs. Klein stated that her statement was not the basis of her decision in the ease, but was used simply as a contrary example to the instance cited by Mrs. Armendariz. Mrs. Klein stated she entered the ease without any prejudice and kept an open mind until the case was submitted and deliberations began and that the jury made every effort to arrive at a fair decision.

Juror Oliver’s affidavit states she does not recall making the statement that plaintiff should not have brought the action

Juror Hutson likewise averred she heard no statements on the part of any jurors indicating that consideration should be given the doctors because an adverse result would ruin their professional careers. She stated she entered upon her duties with an unbiased mind and formed no opinion on the case until after deliberations began. With reference to the statement attributed to her that her husband had been operated on without her consent, which did not bother her, and she saw no reason why Mrs. DeWit'should be bothered, Mrs. Hutson disclaimed the accuracy of this statement. She averred that in discussing the evidence, she had pointed out that the hospital record showed Mr. DeWit had given written consent to the operation and the evidence made it appear that plaintiff was complaining because she had not been asked for her consent. Then, as a matter of argument, Mrs. Hutson stated that she had not been asked to give consent when her husband was operated on and that she felt “that it was Mr. DeWit’s bladder and Mr. DeWit’s surgery, and that he was the one who had the right to say whether he wanted it or not.”

Juror Newcomb’s affidavit denies that she made the statements attributed to her indicating sympathy for the doctors and denies that she heard any of the other jurors so express themselves. She stated she tried the case with an unbiased mind. She avers that during the course of the deliberations she expressed the opinion that the evidence showed defendants had had a good medical education and wide experience. This statement was based wholly on the evidence and not on any preconceived idea that a verdict should be returned in favor of defendants because they were doctors and their medical careers should be protected. With reference to the incident of the gift, Mrs. Newcomb stated that she and Mrs. Armendariz frequently rode home together on the street car and became friendly; that during the course of the trial they exchanged books and reading matter; that Mrs. Armendariz

The remaining jurors, all men, filed affidavits which declared, in substance, that they saw or heard nothing in the jury room to indicate any jurors were motivated by bias or prejudice during the deliberations and that the case received a fair and open-minded consideration from the jury.

Plaintiff correctly states the well-established rule that upon motion for a new trial it is proper for the court to receive affidavits of jurors relating to occurrences during the deliberations of the jury tending to establish the bias of a juror existing at the time of his impanelment which was concealed during the voir dire examination directed to that point. (Forman v. Alexander’s Markets, 138 Cal.App.2d 671 , 674 [ 292 P.2d 257 ]; Pollind v. Polich, 78 Cal.App.2d 87 , 92 [ 177 P.2d 63 ] ; Williams v. Bridges, 140 Cal.App. 537 [ 35 P.2d 407 ].) Plaintiff is mistaken, however, in her suggestion that the affidavits before the court conclusively established bias and prejudice on the part of certain jurors voting against her and that she is entitled to a new trial. While plaintiff’s affidavits, standing alone, concededly would be impressive, it cannot be ignored that nine jurors filed answering affidavits sharply challenging and contravening plaintiff’s charges, putting some of the facts alleged in a different focus and stripping others of the sinister implications drawn by plaintiff. Certain jurors accused of making improper statements directly denied that many of the utterances attributed to them were actually spoken; others denied hearing such statements made; some denied the statements in the form or character alleged and described what was actually said or done in factual context; and all denied entertaining either a bias in favor'of defendants or a hostile animus toward plaintiff at the time of their impanelment. A factual conflict existed as to whether certain statements were made at all, and a question existed as to whether other statements made, when seen in complete perspective, manifested a prejudice concealed on voir dare.

In considering an appeal from an order which is based on affidavits and which involves the determination of a ques

The case of Shipley v. Permanente Hospital, 127 Cal.App. 2d 417 [ 274 P.2d 53 , 48 A.L.R.2d 964 ], is of no assistance to plaintiff. In that case, the court granted a new trial after receiving affidavits which parallel those here presented, and this action was affirmed on appeal. Had the court below granted the motion for a new trial we would likewise be bound to presume that he accepted the veracity of the movant’s affidavits; but as he denied a new trial, we must assume the facts most strongly against plaintiff. As the Shipley case emphasizes (p. 425), the granting of a motion for a new trial rests so completely within the discretion of the trial judge that a reviewing court will not interfere with his action unless a patent abuse of discretion appears. The underlying fallacy of plaintiff’s reliance on an authority such as the Shipley case, where a new trial was granted, is aptly epitomized in Lynn v. Knob Hill Imp. Co., 177 Cal. 56 [ 169 P. 1009 ], which involved an appeal from an order denying a motion to be relieved of default. The Supreme Court stated (p. 62) : “The appellant makes the common mistake of citing to us cases where orders granting such motion have been sustained on appeal, and endeavoring to apply those precedents to the present case, where the relief is denied. The matter being discretionary and reviewable only for abuse, it may well be that this court would sustain an order denying such relief in one case and deny it in another, where the facts presented to the lower court were precisely the same in both, because this court could not say there was an abuse of discretion, in either event.” In People v. Webb, 143 Cal.App. 2d 402 [ 300 P.2d 130 ], where the court reviewed an order denying a motion for new trial based on a juror’s misconduct, the Shipley case was likewise distinguished as one in which the motion for new trial had been granted. The court then stated the rule here germane (pp. 419-420) : “The trial court by its ruling denying the motion for a new trial necessarily impliedly found that Bradley did not misrepresent his state of mind on the voir dire examination. This finding cannot be reversed in the absence of a showing of a clear abuse of discretion. No such showing was here made [citations].”

The judgment is affirmed.

Moore, P. J., and Ashburn, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 8, 1957. Carter, J., was of the opinion that the petition should be granted.