Smith v. Covell

Opinion

Plaintiffs’ action is for personal injuries sustained by Aliene D. Smith and for loss of consortium suffered by her husband, Clyde O. Smith, arising out of an automobile collision. Defendant Florence Coveil 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 Aliene D. Smith for the sum of $10,000 and a verdict of zero as to plaintiff Clyde O. Smith. Plaintiffs moved for a new trial and upon its denial appeal the judgment.

Facts

On August 12, 1974, Coveil’s car ran into the rear end of the car owned and occupied by passenger Aliene 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 preexisting 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 preexisting factors; Dr. Cobb was also of the opinion the disability was related to preexisting factors or subsequent injury to the low back.

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.

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

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 ].)

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 plaintiffs 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 á 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.)

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 , 570 P.2d 1050 ], 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 facts of this case demon

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.

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 Staret 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.

Several jurors including O’Brien, Ryan and Williams, from their discussions in the jury room, evidence a concealed intent to disregard the court’s instructions as regards the husband’s, Clyde Smith’s, cause of action for loss of consortium. These jurors stated during deliberations that Mr. Smith was not entitled to damages because a husband takes a vow when he marries and has an obligation to stay with her. These jurors had agreed on voir dire that they would not in any way hesitate to follow the law that the court gave them.

The right to a trial by jury in a personal injury action is “jurisdictional.” In Deward v. Clough, 245 Cal.App.2d 439 , 444 [ 54 Cal.Rptr. 68 ], the court stated: “‘The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury.. .. ’ [Citation.] The guarantee is to 12 impartial jurors.” (See Clemens v. Regents of University of California, 20 Cal.App.3d 356 , 360 [ 97 Cal.Rptr. 589 ]; Lombardi v. California St. Ry. Co., 124 Cal. 311 , 317 [ 57 P. 66 ].)

Here, these several undisputed acts of juror misconduct constitute serious misconduct, destructive of the very heart of plaintiffs’ claim for damages. These were no insignificant infringements of the rules. We conclude whether viewed separately or collectively, these acts of juror misconduct deprived plaintiffs of a fair, impartial jury trial and warrant reversal, granting of a new trial on the issue of damages.

Plaintiffs next argue that the amount of damages awarded was inadequate. In view of the requirement of reversal of the judgment, we

In the face of uncontradicted evidence of the loss of consortium, the zero verdict is a special category of inadequate damages resulting from the failure of the jury to follow the court’s instructions of law.

V

Plaintiffs next cite trial court error in its overruling their attorney’s objections to defense counsel’s comments and argument as to plaintiffs’ failure to call certain witnesses.

Defense counsel in his rebuttal argument commented on plaintiffs’ failure to call as witnesses the doctors at Scripps Clinic who had treated Mrs. Smith for injuries sustained in the accident; the implication was that such doctors would have testified adversely to plaintiffs’ case. The plaintiffs made a timely objection to this argument but were overruled. These doctors were equally available to subpoena by defendant had she chosen to call them. The inferences raised by the counsel’s argument were improper.

The appeal court in Patton v. Royal Industries, Inc., 263 Cal.App.2d 760 , 769 [ 70 Cal.Rptr. 44 ], approved the trial court direction to plain

This type of attorney misconduct invites juror speculation. (Malkasian v. Irwin, 61 Cal.2d 738 [ 40 Cal.Rptr. 78 , 394 P.2d 822 ].) This speculation so induced must be related to counsel’s further insinuations made during the trial, to the effect certain doctors at the Scripps Clinic were of the opinion Mrs. Smith’s problems were psychological and thus implied this to be the reason these medical witnesses were not called. The failure of the trial court to cut short this species of improper question must be viewed in conjunction with the other elements of misconduct. The conduct was prejudicial in an unmeasured amount but adds support to the conclusion that reversal and retrial of the issue of damages is mandated.

Plaintiffs next contend defense counsel (Shifflet) committed prejudicial misconduct in insinuating as facts, during both opening statement and cross-examination, matters he knew were not fact or could not be put into evidence.

During opening statements, and over plaintiffs’ objection, Mr. Shifflet said: “She [plaintiff Aliene Smith] went to a psychiatrist and the psychiatrist said that her pain is in her mind, that she has an antagonism toward her husband and this is her way of punishing her husband. She went to a psychologist and his report was along the same vein. The man that she went out to the Pain Center to see was a Dr. Sternbach, and he is the one that decided—that handled all her problems at the Pain Center, not Dr. Woods.” The facts were Mrs. Smith did see a psychiatrist, a Dr. Appleford (to whom she was referred by her

Further, defense counsel made representation of facts during his opening statement that was totally unsubstantiated by any evidence. For example, he said evidence would show that Dr. McMurray “didn’t want her as a patient anymore,” told Mrs. Smith to “get another doctor.” The evidence showed Dr. McMurray had referred Mrs. Smith to a neurologist, Dr. Silver, for a consultation in Silver’s area of medical specialization; Dr. McMurray did leave his practice for military service, thereby ending his involvement with Mrs. Smith’s treatment. There is no fact basis whatsoever to suggest the doctor did not want her as a patient.

In cross-examination, Mr. Shifflet asked Mrs. Smith whether Dr. Sternbach or some other doctor had “told her” or “said” that her injury was a method “of getting attention” or “demonstrating dependence” or “hostility,” thus suggesting some qualified doctor had formed an opinion that Mrs. Smith’s problems were purely psychological. Objections to such questions were overruled. No evidence was later offered to support these insinuations. Defense counsel had represented both before trial and during voir dire that the only medical witnesses he would call were Dr. Schultz, an orthopedist, and Dr. Cobb, a neurosurgeon, and perhaps Dr. Appleford, a psychiatrist. Dr. Appleford’s report—known to defense counsel—was that Mrs. Smith was “suffering from mild, moderate reactive depressive reaction secondary to her injury and this is associated with some degree of anxiety and confusion about the status of her residual.” There was no reflection in that report that the pain was in her (plaintiff’s) mind or that she had an antagonism towards her husband or that this was her way of punishing him.

Defense counsel in his statements, questioning violated this fundamental rule: “[CJounsel in opening statements should not, of course, include testimony which they know will not be received, and state the testimony for the purpose of prejudicing the jury.” (I. Upham Co. v. United States etc. Co., 59 Cal.App. 606 , 610 [ 211 P. 809 ].)

In Mudrick v. Market Street Ry. Co., 11 Cal.2d 724 , 737 [ 81 P. 950 , 118 A.L.R. 533 ], plaintiff’s counsel’s remark was held improper where he did not prove and could not prove such statements; where prejudice

In defense counsel’s cross-examination of Mrs. Smith, he sought as evidence purported medical opinions of an out-of-court declarant. Mr. Shifflet questioned Mrs. Smith concerning Dr. Sternbach:

“Q. Did he tell you in a sense that the pain that you were having was a method of obtaining dependency?

“A. Repeat that. I don’t understand it.

“Q. Did he tell you that the pain you were experiencing was a method by which you would get attention, a method by which you could be dependent on other people?

“A. No. I don’t remember that.

“Q. Did he tell you that your pain represented a method by which you could express hostility?

“A. No.”

Defense counsel argued such questions were proper for impeachment purposes and plaintiffs’ objections were overruled. In substance, counsel was asking Mrs. Smith whether, she had been told by a psychiatrist her symptoms were in effect manufactured for various suspect psychological reasons. The questions called for patent hearsay evidence—a statement made other than by a witness while testifying and offered to prove the truth of the matter. (Evid. Code, § 1200.) It is inadmissible unless falling within one of the recognized exceptions to the hearsay rule. If Dr. Sternbach held such an opinion, such fact might undermine plaintiffs’ claim for damages. Such opinion, to be admissible for the truth of the matter stated would have to be examined for admissibility, delivered in open court under oath and subject to cross-examination. It could not be brought in by the back door on cross-examination of the patient. (See Cote v. Rogers, 201 Cal.App.2d 138 [ 19 Cal.Rptr. 767 ].) Unless such

Finally, defense counsel committed an act of misconduct when he suggested by cross-examination the plaintiffs were wealthy. Mrs. Smith had in fact inherited certain property including a shopping center, a liquor store and corporations and real estate. Objections were sustained to this question, but their impact was not lost on the jury. Juror Leonard asserted the jurors were impressed with the idea that plaintiffs “already had a lot of money” and “didn’t need any more.” Unless relevant, references to an adverse party’s wealth is improper. (Weaver v. Shell Oil Co. of California, 129 Cal.App. 232 , 234 [ 18 P.2d 736 ].) No showing of relevance was here made.

We have made an independent examination of uncontradicted acts of juror misconduct, proven specifications of attorney misconduct as well as trial court errors and conclude they demonstrate prejudice, compel a reversal, granting of a new trial solely on the issue of damages.

Judgment reversed.

Brown (Gerald), P. J., and Cologne, J., concurred.