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.
*77 Although the record of the trial is not before us, the clerk’s transcript discloses that defendants were charged with negligence in examining and diagnosing plaintiff’s decedent, Mr. DeWit, and of performing an operation on Mr. DeWit which caused peritonitis to set in, which in turn is alleged to have been the cause of death.
Plaintiff’s 1 contention is that she was denied a fair trial because of the misconduct of several jurors, as set out in affidavits filed in support of her motion for new trial. Defendants assert the question to be resolved is whether the trial court abused its discretion in denying plaintiff a new trial.
During the impanelment of the jury, plaintiff’s counsel propounded questions to each of the jurors voting in favor of defendants, seeking to elicit their general views concerning the moral and legal right of a party to bring a malpractice action and inquiring about their feelings towards, and experiences with, and relationship to doctors. Inquiries were made as to the jurors’ sympathy for doctors, whether they would apply any different- standard to doctors charged with negligence simply because of their particular professional status; whether they understood that the action being tried was neither a prosecution nor a disciplinary proceeding; whether they could judge the ease on the evidence adduced, divorced from personal feeling, as well as other questions of like import. These veniremen denied they had any prejudice along the lines asked which would preclude an objective consideration of the case. The tenor of their statements was that they felt a party had legal as well as moral right to bring a malpractice action and that they could try such an action with an open mind regardless of the fact that doctors were defendants.
Mrs. Klein, sitting as juror No. 2, was asked on voir dire whether she had a specialized knowledge of peritonitis “beyond what all of us laymen have” which she would substitute for such knowledge as she would apprehend from the evidence. Shе replied in the negative. Juror No. 3, Mrs. Hutson, disavowed on voir dire that there was anything in her medical history, or that of her husband, that would cause her to have any adverse feelings toward a plaintiff in a malpractice action.
In support of her motion for a new trial, plaintiff filed her own affidavit, an affidavit of Lionel T. Campbell, her attorney, *78 and the affidavits of three jurors, Mrs. Armendariz, Mr. Koechling, and Mr. Rush. These juror-affiants averred that after the jury had retired and before any nine jurors had expressed themselves in favor of defendants, certain other jurors, in the hearing of the panel, made statements substantially as follows: It would be too bad to hold these doctors, it would ruin their reputations if found guilty; these doctors would not do anything wrong, аnd if they did they would have been expelled from the staff of the hospital; it wouldn’t be right to ruin their professional careers for just one error, and these doctors could not do any wrong with all their education and experience. The Armendariz affidavit also states that during the deliberations, before nine jurors had indicated any decision, (1) juror Klein remarked in the presence of all the jurors that some 20 years before her husband developed peritonitis after an appendectomy and was still alive, that peritonitis is not fatal and that she could not see how the peritonitis in the case of plaintiff’s decedent could have had any effect on his death; (2) that Donald Lewis, juror No. 10 and foreman of the jury, statеd he gambled on horses and plaintiff was just gambling in court for $200,000; (3) that juror No. 6, Mrs. Oliver, stated plaintiff should not have brought her action because she knew she was going to lose it; (4) that Mrs. Hutson informed the jurors that her husband had been operated on by a doctor two years previously without her knowledge, that she had not been consulted about it, that “it didn’t bother her and she didn’t see why it should have bothered Mrs. DeWit.” Mr. Koechling’s affidavit also refers to the remark attributed to Mrs. Oliver, and Mr. Rush’s affidavit asserts one juror (presumably Mr. Lewis) stated plaintiff was just gambling in court for $200,000 and that Mrs. Klein referred to someone in her family who had peritonitis some years ago.
Plaintiff and her attorney, Mr. Campbell, submitted affidavits to the effect that they were ignorant of the facts constituting the claimed misconduct until after the rendition of the verdict. 2 The Campbell affidavit asserts that he accepted the jurors solely on their answers made on their voir dire examinations and had he known of a preexisting bias and prejudice as disclosed by the matter contained in the affidavits of Armendariz, Rush and Koeehling and not revealed on voir dire, he .would have challenged the jurors in question.
*79 In a supplemental affidavit filed by Mrs. Armendariz, she asserts that while she was seated in the courtroom waiting to enter upon the deliberations in the jury room, juror No. 1, Mrs. Newcomb, handed her a box and stated: . . don’t open it here. I don’t want anyone to see what I bought you. It’s a little necklace to wear with your dress. ...” Later, according to Mrs. Armendariz, while the jury was deliberating, Mrs. Newcomb remarked tо her in a low voice, in effect, that ‘ ‘ it would be nice to have all of us vote in favor of the doctors. ’ ’
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 аlleged 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 cаse 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 *80 because she knew she was going to lose; that if such statement was made by her, it was not the result of prejudice against plaintiff nor because of any belief that doctors could do no wrong, or of any consideration of injury to their reputations as the result of an adverse verdict. She averred that the evidence convinced her that the defendants were not negligent in relation to their treatment of Mr. DeWit, that she had no recollection of hearing the remarks attributed to the jurors in the affidаvits supporting the motion, and in her opinion the jury considered the ease impartially.
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 nо 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 аnd 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 *81 had presented her -with over 20 paper-backed mystery bоoks; that in appreciation, Mrs. Newcomb gave a necklace costing 79 cents and a bottle of cologne, both of which had been unused in her home for a considerable period of time; that it was not true that Mrs. Newcomb told Mrs. Armendariz not to open the gift in the presence of the other jurors or that the gift was made to influence her vote.
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,
In considering an appeal from an order which is based on affidavits and which involves the determination of a ques
*82
tion of fact, an appellate court is bound by the same rule that controls where oral testimony is presented for review, namely: (1) if there is any conflict in the affidavits, those favoring the prevailing party are accepted as true; and (2) since all intendments are in favor of the action taken by the lower court, the affidavits in behalf of the successful party are deemed not only to establish the facts directly stated therein, but all facts reasonably to be inferred from those stated.
(Doak
v.
Bruson,
The case of
Shipley
v.
Permanente Hospital,
*84 Since the order in the instаnt case was made after the trial court considered conflicting affidavits and is supported by substantial evidence therein, the implied finding in defendants’ favor will not be disturbed.
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.