98 Cal. 384 | Cal. | 1893
—Respondent, while walking upon the sidewalk of Larkin Street, in the city of San Francisco, was struck
Appellant moved for a new trial upon the ground of misconduct of the jury in this, that they arrived at their verdict by a resort to the determination of chance. The code expressly provides that such misconduct may be shown by the affidavits of jurors (see. 657, Code Civ. Proo.), and in support of the motion appellant presented the affidavit of one Koster, a juror, wherein he stated;. "That upon retiring to the jury-room the twelve jurors first agreed by a vote that the average sense of the jurors should control in arriving at what the verdict should be, and then the twelve jurors agreed to be controlled by their vote, and voted that the said average sense of the jurors should be arrived at in the manner following, namely, by each individual juror writing on a piece of paper what he would fix the verdict at, and that the sums so written should then be added together, and the aggregate divided by twelve, and that the amount resulting should be taken as the average sense of the jurors, and be put in the verdict accordingly; and thereupon the said plan was carried out,” etc. Courts have not been astute in perceiving sufficient error to set aside verdicts upon the ground here relied upon, and evidence sustaining the verdict has been generally favored; but upon this motion no opposing affidavits were offered, and the merits of the contention rest alone upon the sufficiency of the statement of facts above recited. Reduced to its lowest terms, the affidavit plainly discloses that the verdict was the result of a previous agreement, and was arrived at upon the basis that the amount of the verdict should be the quotient resulting from a division wherein twelve was the divisor, and the sum of the various amounts at which each
Counsel for respondent, with good reason, rely upon Turner v. Tuolumne County Water Co., 25 Cal. 397, to support his contention in this regard. It is there decided that a verdict arrived at in the manner hereinbefore set forth is not a chance verdict, and therefore cannot be attacked by the affidavits of jurors. But after mature consideration, we think the principle there declared erroneous, and that the establishment of a contrary rule, in this country especially, where the rights of property, reputation, and life are all taken into the jury-room and there passed upon by jurors, will result in a purer and more satisfactory administration of justice. In the case cited, Mr. Justice Sanderson used the following language: “To ascertain this average the jury may properly adopt the method which was used in the present case, but they ought not to agree to be bound by the result, whatever it may be. If they do so agree, and such result is made the verdict without further consideration or assent, such verdict is vicious arid irregular, and must be set aside whenever the fact is made to appear by proper and competent evidence.” If this character of verdict is vicious and .irregular, it can only be vicious and irregular upon the ground that it was not the result of that calm and deliberate judgment of jurors contemplated by the law, but that it was arrived at by a resort to chance or lot. The vicious character of the verdict can consist of nothing else. The jurors have not been corrupted. They have acted under no duress, mistake, or fraud. Their verdict is the result of free and voluntary action. Outsiders have not participated in or influenced their determinations. Hence,
“Chance” may be defined to be hazard, risk, or the result or issue of uncertain and unknown conditions or forces, and the facts here developed bring the case clearly within such definition. In the present case each juror agreed that a definite amount should be the verdict of the jury, at a time when he had no knowledge whatever as to what the amount should be, for it had not yet been computed. Ho person even knew the figures upon which the computation would be made. If the estimate of each juror is before the eyes of the others when the agreement is made, then no element of chance will be found in the result, for it would be a mere matter of mathematical computation; but without a knowledge of these estimates, the character of the verdict will be as entirely unknown to the jurors as though the whole matter were decided by the casting of a die, or the tossing of a coin. In the casting of a die, or the tossing of a coin, justice has an equal chance with injustice, but under the system here considered, one unscrupulous and cunning juror always has the power to defeat justice by increasing or decreasing the amount of the verdict in proportion as he places his estimate at an unconscionably high or low figure. In the casting of a die the chance of winning or losing is dependent upon the face of the die that presents itself after the cast. In arriving at a verdict in the manner here practiced, the chance of the respective parties, plaintiff and defendant, to secure the verdict is entirely dependent upon the sum total of the estimates made by the various jurors, and that sum total is as uncertain and unknown to the jurors at the time the agreement is made as the result of the cast is unknown to the gamester. We are clearly of the opinion that this verdict was obtained by a resort to chance, and Turner v. Tuolumne County
Under a statute similar to the provision of our code, this question has been directly adjudicated, and the position here taken supported in the recent case of Pawnee Ditch & Improvement Co. v. Adams, 28 Pac. Rep. (Colo.) 662. Under the same provision of the Idaho statute this question has been carefully considered in the very late case of Flood v. McClure, 32 Pac. Rep. (Idaho) 254. Turner v. Tuolumne County Water Co. is there reviewed, and its reasoning declared not sound.
It is insisted that the case of Turner v. Tuolumne County Water Co. having been decided under the former practice act, and the same provision being carried into the Code of Civil Procedure, that re-enactment carried with it the construction previously given the provision. Such can only be the law where the rules of statutory construction are the same at the date of both enactments. This principle is declared in Blythe v. Ayres, 96 Cal. 591, and also in Flood v. McClure, 32 Pac. Rep. (Idaho) 254.
As the cause must be returned to the lower court for farther proceedings, we pass to an examination of some additional matters. The motion for a nonsuit was properly denied. Upon the evidence we cannot say that the respondent was guilty of contributory negligence in walking upon the sidewalk at the time the injury was inflicted. She had a right to be there, and had no sufficient reason to anticipate danger from overhead. Respondent’s evidence also established a prima facie case of negligence upon the part of the appellant. He was engaged with tools and materials directly over a thoroughfare where people were constantly traveling and had an undoubted rio-ht to travel. Under such circumstances the law demanded O of him more than ordinary care. He was called upon to exercise the greatest care and caution in the performance of his work in order that travelers might not be injured. The injury was received at the hands of appellant by the dropping of the chisel while respondent was walking upon the public street. Under the foregoing circumstances the court was justified in submitting the case to the jury. This question is carefully considered" and the authorities reviewed in Mullen v. St. John, 57
Inasmuch as counsel for respondent at the oral argument stated that he relied upon previous decisions of this court to the effect that affidavits of jurors would not be received to impeach a verdict arrived at in the manner set out in the affidavit of the juror in this case, and for that reason did not offer counter-affidavits upon the hearing of the motion for a new trial, which he could have done, it is ordered that the order denying a new trial be reversed, and the same remanded to the court below for further action as herein indicated; that the court below permit the respondent, if she shall be so advised, to file within twenty days after the filing of the remittitur counter-affidavits as to the manner in which the jurors arrived at their verdict, and that thereupon, upon such affidavits and the other matters already before it upon the motion for a new trial, the court render its decision thereon. It is further ordered that the order heretofore made in this court submitting her appeal from the judgment be set aside, and that the hearing upon the said appeal be continued to a day to be hereafter fixed upon the motion of either party hereto.
McFarland, J., Harrison, J., Paterson, J., De Haven, J., and Beatty, C. J, concurred.