Opinion
Hearing Granted Aug. 8, 1962.
Opinion vacated 27 Cal.Rptr. 593, 377 P.2d 649.
Burton & Hennessy, by Fred W. Burton, Yreka, for appellants.
Tebbe & Correia, by J. P. Correia, Yreka, for respondent.
PIERCE, Justice.
This is a judgment roll appeal from a judgment entered upon a jury's verdict in favor of defendants in a personal injury action.
Plaintiffs-appellants contend that they were prevented from having a fair trial due to misconduct of two jurors and assign as error the denial of their motion for a new trial based on that ground.
The accident at issue involved the collision of two automobiles at or near an intersection of two roads. In support of the motion for a new trial plaintiffs filed six affidavits, including those of two jurors, one by Martin Webb who averred that on a Sunday during the trial (after the taking of evidence and arguments by counsel had been completed but before submission of the case to the jury), he had driven to the scene of the accident with his family, had 'viewed the distances and courses testified to by various witnesses; that at varying speeds he drove his own auto * * * and timed portions of it with a stop watch as the vehicle travelled along the course reportedly taken by the colliding vehicle of defendant; that the view was taken to get The learned trial judge in the order denying motion for new trial stated:
'In order to limit the issue, the motion is denied on the sole ground that the affidavits of jurors Webb and Linton are inadmissible. In other words, while these affidavits are certainly relevant and material on the issue of misconduct of the jury, apparently under the cases they are not competent.'
It is well settled that unauthorized views by jurors of, or making investigations at, the scene of an accident, or their conducting of experiments outside the courtroom, or obtaining information regarding the subject matter of the trial from any source other than evidence admitted is improper. (36 Cal.Jur.2d p. 201, 'New Trial,' secs. 50 and 51, and cases there cited.) In a note on the subject in 58 A.L.R.2d 1147, at p. 1156, it is stated:
'The basic consideration in determining whether prejudice resulted from an unauthorized view has been whether the jury, in this manner, obtained evidence, relevant to the issues, other than that presented at the trial.'
Under the rule stated above the investigations made by jurors Linton and Webb were clearly improper. Whether their conduct was prejudicial will be discussed further below. The immediate question is: Did the trial court rule correctly that the affidavits of these two jurors were incompetent as evidence?
Running side by side with the rule just discussed is the rule that a jury (with exceptions to be noted) may not impeach its own verdict. Since self-accusation and impeachment by fellow jurors may very frequently be the only means by which misconduct of a juror can be determined, it will readily be seen that the two rules do not pull well in double harness. A late expression of the rule against a jury impeaching its own verdict is in Kollert v. Cundiff, 50 Cal.2d 768, 329 P.2d 897. There, in a personal injury action also involving a collision at an intersection, an issue involved the change intervals of an intersection traffic light. After a nine to three defense verdict, on motion for new trial, affidavits of the three dissenting jurors and of one majority juror were offered. According to these affidavits (which also related other matters regarding deliberations in the jury room) the foreman of the jury, not one of the affiants, had told the jurors they would have to abide by the verdict forms completed by him or they would never again be allowed to act as jurors. It also appeared that the foreman, during a court recess, had 'investigated the traffic lights at the intersection where the accident occurred, and his report on the periods of the signals was considered by the jury.' The jurors giving affidavits had, no doubt, received this information from the foreman himself during the jury's deliberations.
The majority opinion in Kollert by Mr. Chief Justice Gibson states the general rule that affidavits of jurors may not be used to impeach a verdict, and only two exceptions Williams v. Bridges,
'A few jurisdictions permit a wider use of a juror's affidavit to impeach a verdict than has been allowed in California (see Wright v. The Illinois & Mississippi Telegraph Co., 20 Iowa 195, 210-212; Mattox v. United States, 146 U.S. 140, 148-150, 13 S.Ct. 50, 36 L.Ed. 917), and plaintiffs urge us to relax the rule in this state. The problem involves the balancing of two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury. The court in McDonald v. Pless, 238 U.S. 264, 267-269, 35 S.Ct. 783, 785, 59 L.Ed. 1300, after discussing these policies and stating that the wrong to the individual was the lesser of two evils, concluded that as a general rule the affidavits should be excluded but that there might be instances where the rule could not be applied without 'violating the plainest principles of justice.''
The court then states on page 774, 329 P.2d on page 900:
'* * * [W]hether or not additional exceptions may be justified under some circumstances, we are of the view that the allegations of the affidavit before us, even if taken as true, do not warrant a departure from the general rule.'
The court proceeds to consider the allegations of the affidavit regarding the foreman's visit to the scene of the accident, stating (page 774, 329 P.2d page 900):
'* * * [I]t is difficult to see how, in the light of the evidence relating to the collision, the duration of the traffic signals could have had a significant bearing on the outcome of the case.'
Mr. Justice Carter in a dissenting opinion vigorously criticized blanket application of the rule that jurors may not impeach their own verdict and quoted Dean Wigmore as observing that: 'It is a mere shibboleth and has no intrinsic signification whatever.' (8 Wigmore on Evidence, sec. 2345, p. 663.) Justice Carter's conclusion is that 'the only principle on which we may validly reject the affidavits of the jurors herein is by the application of the parol evidence rule;' that this rule was properly applied under the facts of Kollert only to the jurors' statements in their affidavits that the foreman had told them they would have to abide by the verdict forms completed by him.
Two significant differences exist to distinguish this case from Kollert: (1) The subject matter does not relate to deliberations within the jury room but to misconduct of two jurors outside the courtroom before the case reached the jury; also (2) The disclosure is not made by one juror against another; it is a confession of wrongdoing by the wrongdoers themselves. True, in the Kollert case, one act of alleged misconduct included the jury foreman's visit to, and investigation at, the scene of the accident, but the principal basis of rejection of the evidence was that this item of intelligence was learned through a disclosure by several jurors informing against their fellow juror--thus bringing the matter within the decried 'harassment of jurors' and the reopening of matters likely to lead to 'instability of verdicts.' Such considerations are absent here. Absent also is the argument of privilege.
The only California case called to our attention where the court has stated that the affidavit of the offending juror himself must be excluded as proof of his misconduct outside the jury room is People v. Wong Loung, 159 Cal. 520, 114 P. 829, where an affidavit of a juror that he had (Under this distinction, if the affidavit offered here had been by Mrs. Webb, who accompanied juror Webb on the Sunday ride, or by any one of the other members of his family, rather than by Webb himself, it would be admissible, whereas the even more convincing affidavit by Webb himself is not.) The reasoning of the obiter dicta in People v. Wong Loung, supra, does not accord with Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, where the United States Supreme Court admitted affidavits of jurors stating that newspaper accounts of the evidence had been read in the jury room.
The court in the Kollert case, supra, noted that an exception, by judicial decision in California, is made to the rule of exclusion where impeachment by affidavit relates to fraud by a juror on voir dire examination, e. g., where the juror, notwithstanding a negative answer on voir dire examination, had been a witness to the accident. (Williams v. Bridges, supra.)
In the Williams case the misconduct occurred outside the jury room, but disclosure of it was in the jury room. Also disclosure was by another juror where the theory of privilege might have been, but was not, invoked. If misconduct of a juror in giving false answers on voir dire examination can be shown, even though it is disclosed in jury room deliberations, we can perceive no good reason for excluding misconduct committed during the trial particularly where, although discussed in the jury room, it is disclosed by the juror himself, independent of jury room deliberations. In fact, since in the Williams case the affidavit was by a fellow juror informing on the basis of information revealed during jury deliberations, a stronger case for exclusion could have been made there than is present here. The Supreme Court in Kollert does not disapprove the Williams case. It accepts its rule and states, as we have noted, that additional exceptions may be necessary to accord justice.
We do not view the facts of the instant case as an exception to the rule against self-impeachment of jury verdicts. On the contrary, we do consider the case as not coming within the rule. All of the crucial transactions occur outside the jury room, i. e., the misconduct itself and its disclosure by affidavit. The happenstance that the jurors' confessions of wrongdoing were also told to the other jurors during their deliberations is incidental and does not seem to us a factor transforming an essentially extrinsic transaction into one so closely tied into these deliberations as to demand exclusion--any more than exclusion would be demanded of a third party affidavit accusing the juror. Here the behavior of juror Webb was particularly overt. He had taken his whole family along on a Sunday drive.
We feel, moreover, that whatever reason supports the rule generally, it is clearly absent here. An article by William E. Johnston in 10 Hastings Law Journal 319, written as a comment on Kollert v. Cundiff, supra, traces the rule against impeachment by the jury of its verdict to an Eighteenth Century decision of Lord Mansfield in Vaise v. Delaval, 1 T.R. 11, 99 Eng.Rep. 944. The article points out the grounds upon which it was based (p. 321): (1) 'that tossing coins to arrive at a verdict was a high misdemeanor' and (2) that 'one will The Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, in Rule 44, does not exempt a juror from 'testifying * * * to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict' except (under Rule 41) evidence 'to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to or dissent from the verdict.' This is the so-called Iowa Rule first asserted in 1866 in Wright v. Illinois & Mississippi Tel. Co., 20 Iowa 195. It distinguishes between matters which are essentially inherent in the verdict and those which are extrinsic or overt. (See 47 Columbia Law Review 1373, 1374.) It is the rule referred to by Professor McCormick in his Handbook on the Law of Evidence, page 148, as that adopted as adequate 'protection of finality' of jury verdicts by those jurisdictions which would abolish the rule of complete disqualification.
Argument is made that the deliberations of jurors in the jury room are, or should be, privileged. It is stated, however, by Justice Cardozo in Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 469, 77 L.Ed. 993, at 1000:
'* * * [W]e think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. * * * The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth.'
The argument of 'privilege' obviously cannot apply where the privileged party by voluntarily giving his affidavit, waives it.
As we have suggested above, we find under the facts of this case none of the reasons applicable which have been urged as justification for the rule of exclusion: Neither the parol evidence rule, nor privilege, nor juror harassment, nor any real invasion of jury room seclusion.
We have concluded, therefore, that a repentant juror should be permitted to reveal his misconduct where it consists of acts done outside the jury room. And we hold that affidavits of jurors regarding their own views of accident scenes and investigations thereat during the trial are admissible even though thereafter such misconduct may be related by the erring jurors to other jurors during the jury deliberations. And if such affidavits show misconduct which is prejudicial they will justify a new trial.
Were the affidavits here thus prejudicial? Arguing that they were and that they were thereby prevented from having a fair trial, appellants point out that the investigation made, and tests carried on by the jurors were made over a year after the collision and under circumstances so different that any resulting information obtained could not have failed to be prejudicial. This court did not hear the evidence; does not even have a reporter's transcript before it to weigh this contention. The trial court, on the other hand, has all of this information. In its order denying the motion for a new trial the court expressly stated that its ruling was based solely upon the inadmissibility of the affidavits. Once admitted these affidavits may, or may not, in the judgment of the trial judge, justify a new trial. We have concluded appellants' contention of prejudice has sufficient merit to The judgment is reversed, and the case is remanded with instructions to the trial court to vacate its order denying the motion for new trial, to reconsider said motion admitting said affidavits and to consider and determine their effect as being prejudicial or not prejudicial, and thereafter to grant or deny the motion, depending upon such determination.
PEEK, P.J., and SCHOTTKY, J., concur.