Opinion
12-6-1957
Pearl Anna KOLLERT, Steven Kollert, a minor by Pearl Anna Kollert, his guardlan ad litem; Michael Kollert, a minor by Pearl Anna Kollert, his guardian ad litem; Mary Cleveland, a minor by Pearl Anna Kollert, her guardian ad litem; Marlene Cleveland, a minor by Pearl Anna Kollert, her guardian ad litem; Gertrude C. Abrahamson, Plaintiffs and Appellants, v. Albert Franklin CUNDIFF; The Termo Co.; The Termo Company, a Corporation; The Termo Corporation, Ltd.; The Termo Corporation, Ltd., a Corporation; Does I to XX, Inclusive, Defendants, Albert Franklin Cundiff and The Termo Company, a corporation, Respondents. * Civ. 22303.
Robert H. Lund, Long Beach, for appellants. Parker, Stanbury, Reese & McGee and J. H. Peckham, Los Angeles, for respondents.
Pearl Anna KOLLERT, Steven Kollert, a minor by Pearl Anna Kollert, his guardlan ad litem; Michael Kollert, a minor by Pearl Anna Kollert, his guardian ad litem; Mary Cleveland, a minor by Pearl Anna Kollert, her guardian ad litem; Marlene Cleveland, a minor by Pearl Anna Kollert, her guardian ad litem; Gertrude C. Abrahamson, Plaintiffs and Appellants,
v.
Albert Franklin CUNDIFF; The Termo Co.; The Termo Company, a Corporation; The Termo Corporation, Ltd.; The Termo Corporation, Ltd., a Corporation; Does I to XX, Inclusive, Defendants,
Albert Franklin Cundiff and The Termo Company, a corporation, Respondents.
Dec. 6, 1957.
As Modified on Denial of Rehearing Jan. 3, 1958.
See 319 P.2d 643.
Hearing Granted Feb. 26, 1958.
Robert H. Lund, Long Beach, for appellants.
Parker, Stanbury, Reese & McGee and J. H. Peckham, Los Angeles, for respondents.
VALLEE, Justice.
Appeal by plaintiffs from an adverse judgment entered on a jury verdict in an action for damages for personal injuries resulting from a collision between two automobiles.
The accident occurred about 8:30 p.m. on July 1, 1955 at the intersection of Carson Avenue and Paramount Boulevard in Long Beach. Carson runs east and west; Paramount north and south. Carson has three eastbound and three westbound traffic lanes. The intersection was controlled by stop-and-go signal lights, with a 'caution' light appearing after the 'go' signal and before the 'stop' signal.
Prior to the accident plaintiff Pearl Kollert was driving her Oldsmobile westerly along Carson in the lane next to the double white line. Plaintiff Gertrude Abrahamson, an elderly woman who did not drive an automobile, was seated on the right side of the front seat. Four minor children were on the rear seat. Defendant Cundiff was driving a Chrysler in the course and scope of his employment for his principal and codefendant, The Termo Corporation, in an easterly direction along Carson next to the double white line.
Cundiff stopped at the west edge of the intersection with the intention of making a left turn to go north on Paramount. He gave a hand signal and turned on his flicker lights. The traffic signal was green. He permitted three westbound cars to pass. He then proceeded about 12 feet into the intersection. The signal was still green. When the amber light came on he turned in a northeasterly direction across the double white line and proceeded about 14 feet when the collision occurred. The Kollert car came to rest about the center of the intersection. Cundiff's car careened about the intersection, striking other cars.
The evidence was conflicting as to whether traffic in the two westbound lanes closest to the north curb had stopped when Cundiff made the left turn and entered the intersection.
Plaintiffs filed a notice of intention to move for a new trial. In support of the motion they filed affidavits by four members of the jury. The substance of the affidavits was that after the jury had retired to deliberate, not having arrived at a verdict, they were sent home at 5 p.m.; the next morning after resuming deliberation the foreman told the other members of the jury he had visited the scene of the accident the night before, told them the exact periods of the signal control lights at the intersection; and that the periods of control thus stated were considered by the other jurors in arriving at a verdict. The affidavits further stated that in taking four polls the jury only considered the case of Pearl Kollert against defendants; by a poll of 9 to 3 it was found both drivers were negligent and Pearl Kollert should be denied recovery; the bailiff was summoned for the purpose of securing additional instructions as to the remaining plaintiffs; the bailiff asked how the deliberations stood; the foreman said, 9 to 3; the bailiff then left, returned, and advised there would be no need for further instructions since a verdict had been reached; the foreman then completed the remaining five verdicts without any deliberation on the remaining five plaintiffs; the foreman was advised by other jurors the verdicts thus completed had not been the product of deliberation. Two of the affidavits stated the foreman advised the other members of the jury they would have to abide by the verdicts completed by him or they would never again be allowed to act as jurors.
At the hearing of the motion for a new trial the court ordered the affidavits stricken from the record. Plaintiff contends it was error to strike the affidavits. There was no error. When the verdicts were returned the jury was polled as to each verdict; 9 answered in the affirmative, 3 in the negative. An affidavit of a juror may not be used to impeach a verdict except to show it was arrived at by chance. Peterson v. Peterson, 121 Cal.App.2d 1, 9, 262 P.2d 613. There was nothing in the affidavits indicating that the verdicts were arrived at by chance. It would have been error not to have stricken them from the record. Mish v. Brockus, 97 Cal.App.2d 770, 775-776, 218 P.2d 849.
Since the affidavits were properly stricken, it is unnecessary to consider plaintiffs' contention that they were deprived of a fair and impartial trial due to misconduct of the jury foreman in obtaining evidence out of court and imparting the same to the other jurors, and that plaintiff's guests were denied a fair and impartial trial due to the failure of the jury to deliberate on their causes.
Defendants did not plead that plaintiff Gertrude Abrahamson was contributively negligent, nor was there any evidence that she was negligent. Mrs. Abrahamson testified the first she was aware a collision was impending was immediately before it occurred. Plaintiff offered instructions submitting and limiting the issue of the alleged contributory negligence of plaintiff Kollert. The court modified the instructions by adding plaintiff Gertrude Abrahamson's name therein, thus submitting to the jury the issue with respect to the contributory negligence of Mrs. Abrahamson. It is asserted the court erred in so modifying the instructions. Manifestly it was error. The negligence of plaintiff Kollert, the driver of the car, may not on the facts be imputed to Mrs. Abrahamson. Defendants in effect concede error. Their position is that the error was not prejudicial. We think it was. There was evidence from which the jury reasonably could conclude that defendant Cundiff was negligent, that in making the left turn he did not yield the right of way as required by section 551 of the Vehicle Code. There was evidence that vehicles traveling west on Carson were entering the intersection at the time Cundiff made the left turn.
A similar contention was urged in Miller v. Peters, 37 Cal.2d 89, 230 P.2d 803. The court answered (37 Cal.2d at page 95, 230 P.2d at page 807): 'From the general verdict of the jury in favor of respondents, it cannot be determined on what basis the jury absolved respondents from any liability in this case: whether it found that the accident (1) occurred solely through the negligence of the son; or (2) was the result of the joint negligence of both the son and respondent bus driver in the operation of their respective vehicles, and the failure of the mother to caution her son in his driving as an 'ordinarily prudent person' would have done under the circumstances precluded her recovery. [Citation.] In such circumstances it is apparent that the error in giving an instruction on a matter not within the issues, and the error in refusing to give the instruction correctly defining the issues operated to the prejudice of appellants.'
Also see Barton v. Messmore, 122 Cal.App.2d 813, 817, 265 P.2d 949, 38 A.L.R.2d 138. Cf. Lein v. Parkin, 49 Cal.2d 397, 318 P.2d 1.
The record does not exclude the probability that the verdict as to Gertrude Abrahamson in favor of defendants was based on the theory that the contributory negligence of Pearl Kollert was imputed to Mrs. Abrahamson. Accordingly, the judgment in favor of defendants and against Gertrude Abrahamson must be reversed.
The judgment in favor of defendants and against plaintiffs Gertrude C. Abrahamson, Mary Cleveland, and Steven Kollert is reversed. In all other respects the judgment is affirmed. Defendants shall pay half the costs on appeal.
SHINN, P. J., and PARKER WOOD, J., concur. --------------- * Opinion vacated 329 P.2d 897. 1 The instructions as modified by the court read: 'Although there are six plaintiffs in this action, the case of each is separate from, and independent of, that of the others. The law permits them to join as plaintiffs solely because their claims involve the same accident. However, their rights, if any, are separate, not joint. The instructions given you apply to each plaintiff unless otherwise stated, and you will determine each plaintiff's case separately, to the same effect as if you were trying two separate actions. 'In this connection, however, there is one exception to be noted. The defense of contributory negligence is submitted to you as against only the plaintiffs Pearl Anna Kollert and Gertrude C. Abrahamson and, therefore, instructions concerning the subject of contributory negligence apply only as between each of those plaintiffs, respectively and the defendants.' 'You are instructed the issue of contributory negligence in this case is to be considered by you only in relation to plaintiffs Pearl Anna Kollert and Gertrude C. Abrahamson and not to any other plaintiffs.'