Dunford v. General Water Heater Corp.

309 P.2d 958, 150 Cal. App. 2d 260, 1957 Cal. App. LEXIS 2158
CourtCalifornia Court of Appeal
DecidedApril 18, 1957
DocketCiv. 22051
StatusPublished
Cited by19 cases

This text of 309 P.2d 958 (Dunford v. General Water Heater Corp.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunford v. General Water Heater Corp., 309 P.2d 958, 150 Cal. App. 2d 260, 1957 Cal. App. LEXIS 2158 (Cal. Ct. App. 1957).

Opinions

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:

[262]*262Mr. 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 eorpo[263]*263ration, 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 [264]*264answers 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.

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Dunford v. General Water Heater Corp.
309 P.2d 958 (California Court of Appeal, 1957)

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Bluebook (online)
309 P.2d 958, 150 Cal. App. 2d 260, 1957 Cal. App. LEXIS 2158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunford-v-general-water-heater-corp-calctapp-1957.