MCDOWD v. PIG WHISTLE CORPORATION

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District Court of Appeal, Second District, Division 3, California.

MCDOWD v. PIG'N WHISTLE CORPORATION.*

Civ. 14321.

Decided: October 02, 1944

Sidney A. Moss, of Los Angeles, for appellant. Arthur C. Webb, of Los Angeles, for respondent.

Plaintiff sued for damages sustained when she slipped and fell on a wet floor in defendant's cafe, in which fall, as she alleged, she received a fracture of the eleventh thoracic vertebra, a sprained right ankle, a sprained right knee, a broken rib and a nervous shock. In a jury trial she was awarded general damages in the amount of $1200. Defendant appeals from the judgment, urging as grounds for reversal (1) that the jurors were allowed to separate after submission of the cause and before they reached a verdict, and (2) that the court erred in admitting in evidence over defendant's objection the records of the hospital in which plaintiff was confined and treated after her accident. After the jurors had been deliberating for some time they were returned to the courtroom at 5 p. m. and questioned as to the prospects of their reaching a verdict. The following proceedings were had:

“The Court: Ladies and gentlemen of the jury, have you agreed upon a verdict?

“Juror No. 12: We haven't, your Honor.

“The Court: Be careful about this, without stating how you stand, will you state how you stand numerically, if you have reached that position?

“Juror No. 12: The last two ballots have been standing 7 to 5, your Honor.

“The Court: That is what I want to know. Do you think there is any chance you will agree upon a verdict?

“Juror No. 12: I can give you no assurance.

“The Court: Of course we do not like to discharge the jury as long as there is any chance of an agreement because we have put in our time with the case trying to settle a basis for a verdict. The court lately has departed from the rule that jurors may not separate at night because of the war conditions, so jurors are allowed to go to their respective homes rather than be kept together at night, because of the possibility of blackouts, air raid, and that sort of thing. So if you think there is no chance at all by working awhile longer, we will continue the case until tomorrow morning.

“Juror No. 12: Your Honor, I do not think we can come to an agreement.

“The Court: Is there anybody who does think the opposite?

“Juror No. 11: I do, your Honor, there has been very definite opinions one way or the other and I feel in view of the time spent by both sides and the time of the court that we can, there is a very small point we are talking about.

“The Court: I think in that case, unless there is some objection to it, we will continue the matter until 9:30 tomorrow morning.

“Mr. Moss: I wonder if your Honor will be good enough to ask each of the jurors whether they think they can get together because certainly I wouldn't want to see them come back here and have to sit here all day tomorrow––The Court: It isn't necessary for that comment, it doesn't make any difference whether they have to stay here tomorrow––

“Mr. Moss: I do not have to stipulate that the jury be discharged because I strenuously object––

“The Court: The jury will be discharged until 9:30 tomorrow morning. You may go straight to the jury room tomorrow morning.

“Mr. Moss: May the record show my objection to the jury being ordered back here tomorrow morning?

“The Court: The record will so show. I want to see you, Mr. Moss.” (Emphasis added.)

The following morning the jury reassembled in the courtroom and were sent to the jury room. They were returned to the court for the reading of some testimony and were again sent to the jury room. Defendant's counsel then, out of the presence of the jury, moved for a mistrial upon the ground that the jury while deliberating were permitted to separate and go to their homes; the motion was denied. The verdict was reached later in the day.

We are unable to construe the statements of defendant's counsel on the evening of the adjournment as an objection to the separation of the jury. Such an objection appears to have been made for the first time upon the following morning out of the presence of the jury. The record shows that both the court and counsel were endeavoring to learn the views of the jurors respecting a possible agreement upon a verdict. The court would appear to have been influenced not to discharge the jury by the expression of belief of one juror that an agreement could be reached. Likewise, the request by defendant's counsel that the court ask each of the jurors whether he thought they could reach an agreement was addressed solely to the question whether they should then be discharged if it appeared unlikely that an agreement would be reached. His later statement, “May the record show my objection to the jury being ordered back here tomorrow morning” was not an objection to the court's giving them permission to separate. It appears to have been an insistence upon the part of counsel that they should be discharged, especially when the objection is read with the statement, “certainly I wouldn't want to see them come back here and have to sit here all day tomorrow.” The objection stated by counsel to the direction that the jury return to court the following morning would have been construed by the court, we think, as an expression of solicitude for the convenience of the jury, that is to say, that they should not be required “to sit here all day tomorrow,” in view of the fact that they stood 7 to 5. It is clear from the record that the separation was allowed solely for the safety and convenience of the jurors. The concern which defendant's counsel expressed that further proceedings might prove tedious to the jury was such a manifestation of solicitude for their comfort as would have made it difficult for the trial court to understand that the objection to their being ordered back the following day was an objection to the separation. The objection made the following morning, after the jury had retired from the courtroom, came too late. It may well be that if it had been urged before the adjournment, the separation would not have been allowed. But the court had intimated that it would be allowed and we think the failure to register an objection to the proposed separation was tantamount to a consent by the parties.

We are not called upon to decide whether it would be such an irregularity as to require a new trial for the court to allow all of the jurors in a civil case to separate after submission of the case in the absence of consent of the parties or over the objection of a party. But such separation is contrary to the express provisions of the code, and the question here is whether it is an irregularity that can be waived in a civil case either by express consent or failure to object where, as in the instant case, the court has announced its intention to allow such separation. In civil as well as in criminal cases the law requires that the jurors be kept together, section 613 of the Code of Civil Procedure and section 1121 of the Penal Code (except as permitted by section 1128 of the Penal Code). The implication of section 1181 of the Penal Code that the court may permit the separation of jurors in a criminal case after the cause has been submitted relates, no doubt, to such a separation as the court may allow when the absent juror is constantly under the supervision and control of an officer of the court. It was held in a criminal case, People v. Hawley, 1896, 111 Cal. 78, 43 P. 404, that the court may not allow the entire jury to separate and go to their homes for the night after the cause has been submitted, and a conviction arrived at on the following day was reversed even though the defendant had given express consent to the separation. It has frequently been held that the separation of jurors in a criminal case under circumstances which would allow of misconduct upon the part of those who were separated from the others, or upon the part of other persons, is an irregularity for which a judgment of conviction will be reversed (People v. Brannigan, 1863, 21 Cal. 337; People v. Adams, 1904, 143 Cal. 208, 76 P. 954, 66 L.R.A. 247, 101 Am.St.Rep. 92; People v. Cross, 1923, 64 Cal.App. 443, 221 P. 684), although a reversal will not be ordered where there is nothing in the circumstance of the separation to show that there was any discussion of the case during the separation nor any other fact prejudicial to the defendant. People v. Knight, 1923, 63 Cal.App. 63, 218 P. 79. Nor is such separation such an irregularity as compels a reversal if it is made to appear affirmatively that no juror was guilty of misconduct or subjected to misconduct on the part of any other person during the separation. People v. Bonney, 1861, 19 Cal. 426; People v. Symonds, 1863, 22 Cal. 348. The rule against separation of jurors in criminal cases is more strict than in civil cases. This appears from a consideration of the code sections and the decisions of many courts. Section 1181 of the Penal Code makes the separation of the jury without leave of court after retiring to deliberate upon their verdict a ground for a new trial. Section 657 of the Code of Civil Procedure provides as one of the grounds for a new trial, “1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” The general rule in civil cases is as stated in the note to McKinney v. People, 1845, 2 Gilman, Ill., 540, 43 Am.Dec. 65, at page 77: “But it is the general and almost universal rule, that such separation, either of the entire jury, or of one or more of the jurors, from their fellows, is not of itself sufficient ground for a new trial, especially where the separation is by mistake, or for a necessary purpose, and is only temporary; but that, in order to set aside the verdict, there must be some evidence of other misconduct, in addition to the mere fact of separation, which has operated to the party's prejudice.” The cases there cited fully support this statement. See also 16 R.C.L. p. 305. However, it was said in Saltzman v. Sunset Tel., etc., Co., 1889, 125 Cal. 501, page 508, 58 P. 169, 171, after noting the above general rule: “The rule in this state I take it to be, in civil cases, that a separation, against the instruction of the court, with evidence that improper influence might have been brought to bear upon the juror, puts the burden upon the party seeking to sustain the verdict to negative the presumption, and show that no such attempt was made.” It cannot be doubted that only extreme necessity will justify a separation of the jurors after their deliberations have commenced. Not only should they be guarded against all improper influences during their deliberations in a civil cause, but their minds should not be distracted from a consideration of the issues which they have to decide by the intrusion of matters of personal interest and other extraneous matters which will ordinarily be encountered during the separation. We do not think the strict rule stated in People v. Hawley, supra, 111 Cal. 78, 43 P. 404, should be applied to civil trials. Whether it is incumbent upon the complaining party to show occurrences of a prejudicial nature or upon the opposing party to show an absence of such occurrences during the separation, as stated in the Saltzman case, supra, the separation in itself does not vitiate a subsequent verdict and it is therefore an irregularity of which the parties may not complain if they have previously consented to it. The separation of the jury in this case affords no ground for a reversal of the judgment.

The second point urged by defendant does not call for extended discussion. It appears that the records in question were those of the Good Samaritan Hospital of plaintiff's care and treatment from the 9th to the 14th of August, 1942. They were produced by the medical librarian, were described as the original records kept by the nurses and doctors who attended the patients in the usual course of business of the hospital, and were conceded to be original records. The grounds upon which appellant urges that the records should have been excluded are not different from those which were decided adversely to the present contentions in Loper v. Morrison, Cal.Sup. 1944, 145 P.2d 1. The records were sufficiently identified to justify their admission and the contention that the court erred in receiving them is untenable. Furthermore, the records themselves are not set out in whole or in part in the briefs of appellant or a supplement thereto and it does not appear that the evidence was in any manner prejudicial to defendant.

The judgment is affirmed.

SHINN, Justice.

DESMOND, P. J., and PARKER WOOD, J., concur.