Opinion
6-9-1958
Anthony L. WELCH, a minor, through his guardian ad litem, Gladys A. Welch, Plaintiff and Respondent, v. DUNSMUIR JOINT UNION HIGH SCHOOL DISTRICT, a political subdivision, Defendant and Appellant. Civ. 9363.
Tebbe & Correia, M. Harris Messner, Yreka, and Floyd Merrill, Siskiyou County Dist. Atty., Treka, for appellant. Barr & Hammond, Yreka, and Halpin & Halpin, Redding, for respondent.
Anthony L. WELCH, a minor, through his guardian ad litem, Gladys A. Welch, Plaintiff and Respondent,
v.
DUNSMUIR JOINT UNION HIGH SCHOOL DISTRICT, a political subdivision, Defendant and Appellant.
June 9, 1958.
Hearing Granted Aug. 7, 1958.
Tebbe & Correia, M. Harris Messner, Yreka, and Floyd Merrill, Siskiyou County Dist. Atty., Treka, for appellant.
Barr & Hammond, Yreka, and Halpin & Halpin, Redding, for respondent.
WARNE, Justice pro tem.
Anthony L. Welch, a minor, brought this action through his guardian ad litem against the defendant Dunsmuir Joint Union High School District to recover damages for personal injuries received while participating in a high school football scrimmage between the Dunsmuir High School team and the Enterprise High School team on September 10, 1955. The jury returned a verdict in favor of the plaintiff in the sum of $325,000, and judgment was entered thereon with interest at the rate of seven per cent per annum. Appellant filed its motion for a new trial on all of the statutory grounds set forth in section 657 of the Code of Civil Procedure, and after a hearing thereon the motion was denied upon condition that plaintiff remit the sum of $118,196 from the judgment. Plaintiff remitted said amount within the specified time and judgment was reduced accordingly.
Defendant appeals from the judgment and the order denying a new trial. Since the order denying a new trial is not appealable, the purported appeal therefrom must be dismissed. Section 963, Code of Civil Procedure; Jensen v. Minard, 44 Cal.2d 325, 326, 282 P.2d 7.
A few days prior to September 10, the respective coaches of the schools arranged for an inter-school scrimmage between the two teams on that date at Tiger Field in Redding. Prior to the opening of school on August 29, plaintiff was given a physical examination by a Doctor Reynolds and found to be physically fit. The coaches were on the field directing or supervising the play and there were no 'game officials' there. The teams alternated in carrying the ball, and after each sequence of plays the coaches stopped the activity and instructed the players. No downs were called and no score was kept. Plaintiff was a T-formation quarterback and directed the play of his team while they were on offense. Plaintiff took the ball on a 'quarterback sneak' and was tackled shortly after he went through the line. As he was falling forward another player was coming in to make the tackle and fell on top of him. After this play plaintiff was lying on his back on the field and unable to get to his feet. Coach Reginato of the Dunsmuir school suspected that plaintiff might have a neck injury and had him take hold of his hands to see if there was any grip in them. Plaintiff was able to move his hands at that time.
The evidence was conflicting as to whether or not Doctor Saylor, who was admittedly present at the scrimmage, examined plaintiff before he was moved to the sidelines. Franklin Barr, a member of the Dunsmuir team, testified on plaintiff's behalf that Doctor Saylor was from 20 to 25 yards away when plaintiff was injured but did not go over to see him until after he had been removed from the place of injury. Thereupon Johnson, another member of the team, testified on plaintiff's behalf that he did not see the doctor on the field. Barr testified further that he assisted in carrying plaintiff from the field; that he was moved by eight boys, four on each side; and that no one directed the moving. Other witnesses testified that Doctor Saylor came out to the boy immediately after the accident. It was not claimed that the doctor was an agent or employee of the defendant.
The undisputed and only medical testimony was that the plaintiff is a permanent quadriplegic caused by damage to the spinal cord at the level of the fifth cervical vertebra; that there was a fracture of this vertebra without significant displacement; that the fracture was the result of severe trauma; that the removal of the plaintiff from the field without the use of a stretcher was an improper medical practice in view of the symptoms. In answer to the question: 'Doctor, in determining just exactly what did damage to the spinal cord, is movement of the fingers, hands and feet the most significant thing?' he testified, 'Actually far more important than any kind of examination that one can make of the local injury. This follows from what I have previously said about the fact that the leval of injury precludes, if it is complete, the movement of the hands and feet in any effective fashion. If the injury has already been sustained and if the individual can, following the injury, move the hands and feet, he should continue to be able to move the hands and feet.' It appears that after the plaintiff was moved off the field to the sidelines he was unable to move his hands, fingers and feet. With these circumstances in mind the doctor testified it was his opinion that the plaintiff must have sustained additional damage to the spinal cord after being tackled. The doctor's testimony stands undisputed in the record.
Defendant contends first that it was denied a fair trial because of the misconduct of juror Earline Adair when she failed upon examination to fully disclose her relationship with plaintiff's counsel, Jack Halpin. During the impanelment of the jury the court asked the prospective jurors if at anytime since March 22, 1955, any one of them had been a client of any of the lawyers in the case including attorneys Halpin and Halpin. One of the prospective jurors answered that Mr. Halpin had represented her husband in a personal injury settlement. There was no response to the court's inquiry, 'Any further answers to that question?' On voir dire juror Adair stated her impartiality. In response to the question of defendant's counsel, 'Mrs. Adair, what is the extent of your acquaintance with Mr. Halpin?' she said, 'We belong to one of the same clubs.' In answer to his next question, 'What club is that?' she said, 'Democratic.' The affidavits supporting and opposing the motion for a new trial disclosed that Jack Halpin, counsel for plaintiff, had on various occasions since 1954 represented Local 2608, Lumber and Sawmill Workers, AFL-CIO, and had appeared in cases wherein juror Adair's husband had been named as the representative of the members; that juror Adair was not a member of said union; that on November 29, 1956, attorney Jack Halpin consulted with both the juror and her husband at the scene of an accident involving an automobile owned by the union. At the time of the accident juror Adair was sitting in the front seat of the car which was parked on the side of the road. Mr. Adair had been driving the car but was not in it at the time of the accident. In his affidavit Mr. Halpin said that he was not employed by the Adairs to represent them in this matter. The trial court made no finding although the affidavits opposing the motion could have supported a finding that no attorney-client relationship had existed between Mr. Halpin and the juror Adair. However, assuming that such relationship existed within one year prior to the filing of the complaint in this action, and was grounds of challenge for cause under the provisions of section 602, subsection 3, of the Code of Civil Procedure, the appeal must fail on that ground for lack of complete affidavits. The affidavits in support of the motion for a new trial merely show that the defendant's counsel were unaware of the facts constituting the alleged misconduct or irregularity prior to the rendition of the verdict.
It is essential, not only that there be affidavits showing that the defendant's counsel were unaware of the facts constituting the claimed misconduct prior to the rendition of the verdict, but also that the defendant school district file an affidavit to the same effect, stating that it had no knowledge prior to the rendition of the verdict. Forman v. Alexander's Markets, 138 Cal.App.2d 671, 292 P.2d 257; Dunford v. General Water Heater Corp., 150 Cal.App.2d 260, 309 P.2d 958; Lafferty v. Market Street Ry. Co., 7 Cal.App.2d 698, 46 P.2d 996. If such was the fact the president or secretary, or an authorized officer of the governing board of defendant school district could and should have executed such an affidavit on behalf of the defendant. 'When an affidavit is required of a corporation, and no particular officer is designated * * * as the person who shall make it, it may be made by any one of its officers or agents in its behalf.' Old Settlers Investment Co. v. White, 158 Cal. 236, 246, 110 P. 922, 927. School districts have been declared to be corporations organized for educational purposes and are classified with counties as necessary political subdivisions. Ward v. San Diego School District, 203 Cal. 712, 265 P. 821. A union or joint union high school district is governed by a board consisting of five members and has a president and a secretary. Sections 3121 and 3127, 1 Education Code.
Defendant also claims that attorney Jack Halpin was guilty of misconduct in connection with the alleged misconduct of the juror Adair. 'Since the [defendant] did not tender the issue to the trial court which he now argues for the first time on appeal, there was no error in that court in reference to that issue which can be reviewed here.' Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 745, 107 P.2d 501, 504.
It is next contended by defendant that the court erred in polling the jury by its failure to comply with the provisions of section 618 of the Code of Civil Procedure. When the jury returend with its verdict, the jurors were polled and each individual juror was instructed to answer 'yes' or 'no' as to whether or not it was his or her verdict. The result was eight to four for the verdict. The court then stated, 'Upon the poll, the verdict is not the verdict of the jury. To obviate the possibility of any error, the Clerk will poll the jury again.' Upon the jury being again polled the result was nine to three for the verdict. The record shows the following upon the polling of one juror: 'Juror Slisky: Yes, I guess so. The Court: Mrs. Slisky, we will have no guessing here. It either is or is not your verdict. Juror Slisky: Yes.' Upon completion of the second polling the court stated: 'There appearing ambiguity in the answer of one juror, the Clerk will again poll the jury.' Upon completion of the third polling, the result was nine to three in favor of the verdict. Prior to its motion for a new trial the defendant made no objection to the procedure followed by the trial judge.
Section 613 of the Code of Civil Procedure provides that when a case is finally submitted to a jury, they may decide in court or retire for deliberation. Section 618 provides that, 'When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, or by the court if there be no clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read to the jury by the clerk, or by the court if there be no clerk, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk, asking each juror if it is his verdict. If upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, * * *'.
And section 619 of the Code of Civil Procedure provides that, 'When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advise the Court, or the jury may be again sent out.'
There is no merit in defendant's contention. Sections 618 and 619 should be read together. The polling of the jury does not preclude the court from exercising its powers under section 619 to correct an incorrect or insufficient verdict. The trial court retains control over such proceeding with power to procure correction of an informal or insufficient verdict until the verdict is recorded and the jury finally discharged. Sparks v. Berntsen, 19 Cal.2d 308, 121 P.2d 497. Nor was it error not to send the jury out for further deliberation, notwithstanding the fact that one juror answered in the negative the question whether it was her verdict, where it was apparent from a second poll and third poll of the jury that the juror had answered contrary to what she had in fact intended upon the first poll. Fulton v. Huguet, 113 Cal.App.2d 692, 248 P.2d 954.
Defendant contends that the court erred in giving certain instructions at plaintiff's request and in failing to give certain instructions proposed by defendant.
Here it is complained that the court erred in giving an instruction including the language of Education Code, sections 24501 through 24503, because subdivision (a) of section 24503 was omitted. Section 24501 reads: 'The governing board of any school district, superintendent of schools, or principal in whom is vested the administration or supervision of any public or private school in the State shall equip the school with a first aid kit containing the articles mentioned in Section 24503, whenever any pupils of the school are conducted or taken on field trips under the supervision or direction of any teacher in, or employee or agent of, the school.'
Section 24503 provides: 'Every first aid kit shall include the following articles and such other equipment as the school officials charged with the duty of maintaining it may consider useful or necessary for the purpose of this chapter: '(a) 12 3"' X 3"' sterile gauge packages 4 1"' gauze roller bandages 4 2"' gauze roller bandages 4 Triangular bandages 1 Roll adhesive tape 1"' (10 yds.) '(b) An American Red Cross first aid textbook or written instructions for use of contents of the first aid kit.'
The trial court very aptly had this to say respecting the omission of subdivision (a) of section 24503 when ruling on the motion for a new trial: '* * * the type of bandages listed were not those called for by the injury in question. There was no suggestion that anyone had for use, intended for use, or should have used, written instructions for them. And in view of the language read to the jury, the thing to do with a man with a broken neck is to carry him off on a door or a shutter. It is a little bit difficult to see what the presence or absence of instructions on the use of ordinary bandages would accomplish.' It is obvious that the presence or absence of the contents of the first aid kit as specified in subdivision (a) was not material to the facts of this case. As stated in Leo v. Dunham, 41 Cal.2d 712, 714, 264 P.2d 1, 2: 'An instruction should be given only when it is applicable to the issues raised by the pleadings or it is pertinent to some issue or theory developed by the evidence.'
Defendant contends next that the court erred prejudicially in giving an instruction in the language of BAJI 102-D as follows: 'Because of the great danger involved in moving an injured human being a person of ordinary prudence will exercise extreme caution when engaged in such an activity. Hence it is the duty of anyone managing or participating in such an activity to exercise extreme caution.' Defendant claims that the giving of this instruction was prejudicial for the reason that it set up a false standard of conduct and placed upon the defendant a burden that is not consistent with the existing law. We do not agree with defendant. In this case it appears that the challenged instruction, read with the other instructions, correctly informed the jury that the standard of care required of the defendant was that of ordinary care under the circumstances. Tucker v. Lombardo, 47 Cal.2d 457, 303 P.2d 1041; Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7, supra. Immediately preceding this instruction the court gave the following instruction: 'Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care, the amount of caution required will very in accordance with the nature of the act and the surrounding circumstances. 'To put the matter in another way, the amount of caution involved in the exercise of ordinary care, and hence required by law, increases or decreases as does the danger that reasonably should be apprehended.' (BAJI 102-A.)
The standard was still one of ordinary care, that is, of a person of ordinary prudence, where the factual situation shows that great danger was involved in the activity. There was evidence in the case that the moving of a person with suspected grave injuries is inherently a hazardous activity.
We find no merit in the defendant's contention that the court erred in failing to give the following two proposed instructions: '(1) 'If you find that Dr. Saylor attended the plaintiff after the accident and before the plaintiff was moved from the place where he was injured; then, in that event, I instruct you that the responsibility of the coach to render first aid ended when the doctor's responsibility began.' (2) 'I instruct you that the evidence in this case did not establish that Dr. Saylor was an agent, servant or employee of the Dunsmuir Joint Union High School District and if you find that the doctor was negligent, such negligence is not chargeable to the defendant.'
The first of the above refused instructions is taken substantially from the Red Cross textbook which says: 'The responsibilities of the first aider stop when the physician's begin. First aid tells what to do until the doctor comes.' It is claimed that the instruction would have given the jury a measuring stick by which they could have determined when the responsibility of the coach would have ended and the responsibility of the doctor would have commenced. The second instruction was proposed on the theory that the doctor alone was negligent. In lieu thereof the court gave the following instruction which the defendant claims was prejudicial: 'When the negligent acts or omissions of two or more persons, whether committed independently or in the course of jointly directed conduct, contribute concurrently and as proximate cause to the injury of another, each of such persons is liable. This is true regardless of the relative degree of the contribution. It is no defense for one of such persons that some other person, not joined as a defendant in the action, participated in causing the injury even if it should appears to you that the negligence of that other person was greater in either its wrongful nature or its effect.' (BAJI 104-B.)
Under the evidence in this case the jury could reasonably have inferred that both the doctor and the coach were negligent in the removal of the plaintiff from the field to the sidelines; the coach in failing to wait for the doctor and allowing plaintiff to be moved, and the doctor in failing to act promptly after plaintiff's injury. Therefore, the court properly gave the above instruction and properly refused defendant's proposed instruction. See Palmer v. Brown, 127 Cal.App.2d 44, 62, 273 P.2d 306. Further there was no pleading and no evidence introducted on the issue of Doctor Saylor's agency. An instruction should be given only when it is applicable to the issues raised by the pleadings or is pertinent to some issue or theory developed by the evidence. Leo v. Dunham, supra.
Defendant also contends that since contributory negligence was not pleaded as a defense, the court erred in giving an instruction reading in part as follows: 'Thus it is not negligence for such a person to fail to anticipate injury which can only come from a violation of law or duty by another.' If anyone gained any benefit from the instruction it was the defendant. Defendant cannot complain of an error favorable to it. Mella v. Hooper, 200 Cal. 628, 254 P. 256.
Lastly defendant contends that under the provisions of section 1008 of the Education Code interest on the judgment should be computed at the rate of four per cent per annum instead of seven per cent.
That section provides: 'The governing board of any school district shall pay any judgment for debts, liabilities, or damages out of the school funds to the credit of the district, subject to the limitation on the use of the funds provided in the Constitution. * * *' And subdivision (b) further provides: 'If, in the opinion of the board, the amount of the judgment is so great that undue hardship will arise if the entire amount is paid out of taxes for the next ensuing tax year, the board shall provide for the payment of the judgment in not exceeding three annual installments with interest thereon, at a rate not exceeding 4 per cent per annum, up to the date of each payment, * * *'.
Insofar as the section limits the rate of interest to four per cent per annum, it is contrary to the provisions of article XX, section 22, of the California Constitution and is therefore unconstitutional. The Constitution provides that the rate of interest upon any judgment rendered in any court of the State, shall be seven per cent per annum. We find no constitutional exception in favor of a school district.
The purported appeal from the order denying defendant's motion for a new trial is dismissed. The judgment is affirmed.
VAN DYKE, P. J., and SCHOTTKY, J., concur. --------------- 1 Now section 3125.