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Court of Appeal, First District, Division 2, California.

Diane R. McCORMICK, Plaintiff and Respondent, v. OCTOPUS FRESH FISH MARKET & SEAFOOD GROTTO, etc., et al., Defendants and Appellants.

Civ. 46196.

Decided: May 14, 1981

Clark L. V. Deichler, Oakland, for defendants and appellants. Cecilia D. Lannon, San Anselmo, for plaintiff and respondent.

Defendants, Octopus Fresh Fish Market & Seafood Grotto, a restaurant, and its owner and operator, Israel Vilner, appeal from a judgment on verdict awarding plaintiff, Diane McCormick, damages for personal injuries suffered as a result of an alleged trip and fall in the parking lot of the restaurant.1

On June 14, 1974, plaintiff, a resident of Illinois, arrived in Novato, California, to visit her sister and brother-in-law.   At approximately 6 p. m. that day, the group traveled to the restaurant in plaintiff's sister's automobile.

Once inside the restaurant, the trio was seated at a table.   Shortly thereafter, plaintiff left the restaurant to retrieve her brother-in-law's cigarettes from the automobile.   Plaintiff testified that, as she was searching for the automobile in defendant's parking lot, she fell and incurred the injuries which are the subject of this action.

Plaintiff testified that she lost consciousness as a result of falling.   She recalled that after she regained consciousness, she realized that she was lying on the ground and that her feet and legs were in a hole.   Two men approached her, and one of them pointed to the hole.   They assisted her to her sister's automobile and informed plaintiff's sister and brother-in-law of the incident.   Plaintiff's sister and brother-in-law immediately transported plaintiff to Novato General Hospital, where she received emergency treatment for her injuries.   Those injuries included four chipped teeth and a fracture of the left jaw.

Plaintiff remained in Novato until July 2, 1974, although her participation in various activities was somewhat restricted because of her injuries.   Later, she returned to her home in Illinois.   Approximately one year later, on or about June 13, 1975, plaintiff filed her complaint for personal injuries.

During the course of the ensuing jury trial, testimony describing the conduct of the unidentified man who had approached plaintiff after her fall and pointed out the hole in the parking lot, was admitted over an objection, and motion to strike, by counsel for the defendants.   However, testimony concerning what that man said was excluded.

After completing their deliberations, the jurors rendered their determinations on the six special interrogatories submitted to them.   The jury found that both plaintiff and defendants were negligent;  that the total amount of damages suffered by plaintiff amounted to $14,697;  and that negligence was allocated 90 percent to defendants and 10 percent to plaintiff.   The jury was then individually polled on each special interrogatory.   Although nine or more jurors supported each interrogatory, an identical nine jurors failed to agree on all six special interrogatories.

Out of the presence of the jury, defense counsel claimed that there was a deficiency in the verdict as rendered.   Defense counsel argued that an identical nine jurors must agree on the same special interrogatories in order to render a sufficient verdict.   Plaintiff's counsel disagreed, maintaining that an identical nine jurors need not agree on all of the special interrogatories;  that all that was required was that any nine agree thereto.   After discussion and a short period of research, the trial court discharged the jury.   The court then requested counsel to submit briefs on the question of the sufficiency of the verdict.   Defense counsel moved for a mistrial on the ground of the insufficiency of the verdict;  also, he claimed that the trial court had erred in its ruling on the admissibility of assertive conduct by the unidentified man in the parking lot.   The motion was denied.

The court took the case under submission and, on October 5, 1978, entered its order denying defendants' motion for mistrial.   On the same date, judgment was entered in favor of plaintiff in the amount awarded by the jury.

On appeal, defendants contend that the trial court erred by entering judgment based on the special interrogatories answered by the jury.   They claim that an identical nine jurors must agree on the same special interrogatories in order to render a sufficient general verdict.   They find support for this proposition in cases holding that the same nine jurors who agreed on a general verdict 2 must also agree on any supportive interrogatories involved in the disposition of the case, otherwise concurrence of the requisite three-fourths of the jury is not attained and judgment cannot be entered.3

 Plaintiff claims that defendants waived any objection to the inconsistency in the jurors' responses to the interrogatories by failing to object and then request that the jurors be allowed to clarify their verdict before the jury had been discharged.

Her contention is without merit.   The record shows that after the jurors had been individually polled, defense counsel promptly and strenuously objected to the fact that the same nine jurors had not agreed on all of the special interrogatories.   It was then incumbent upon the trial judge to instruct the jurors and send them out for further deliberations.   Instead, he discharged the jury without taking such action.

 Further, it appears that the trial court erred in entering judgment on the special interrogatories.   The poll of the jury shows that the voting distribution of the jury was such as to be insufficient to render a legal verdict.4

While the total number of votes cast was sufficient to support the jury's verdicts in each instance, the individual juror's responses to the interrogatories were fatally inconsistent.   In actual fact, only six jurors concurred in each of the special interrogatories necessary to support the judgment.5  Thus, no “legal verdict” existed upon which to base such judgment.  (Borns v. Butts (1979) 98 Cal.App.3d 208, 210, 159 Cal.Rptr. 400.) 6

We conclude that, in order to logically and adequately achieve the goals of a comparative negligence/fault system, the nine jurors who, by special interrogatories, ultimately distributed liability among the parties, necessarily must also have been the same jurors who found that a particular party was negligent and the proximate cause of the damages alleged.   Otherwise, there would be no “legal verdict” on which a trial court could base its judgment.

As a second ground for their appeal, defendants contend that the trial court committed prejudicial error in admitting hearsay testimony regarding assertive conduct of an unidentified third person in order to establish that plaintiff fell in a hole in defendants' parking lot.   We agree.

 Evidence of nonverbal conduct of a person other than the witness testifying at trial, which was intended by that other person to be a substitute for oral or written verbal expression, is excluded by the hearsay rule when such evidence is offered to prove the truth of the matter asserted.   (Evid.Code, §§ 225, 1200.)   In this instance, the evidence consisted of nonverbal conduct by an unidentified third person, who pointed to a hole as he spoke to another man, while plaintiff lay on the ground after her fall.   At trial, plaintiff offered such evidence to prove the truth of the matter allegedly asserted by such conduct, viz., that plaintiff had fallen into the hole.   Such proof enabled plaintiff to prove the proximate cause of her injuries.   Thus, the evidence should have been excluded unless the assertive conduct falls within an exception to the hearsay rule.

 Plaintiff offers several theories in support of her position that such evidence was properly admitted at trial.7  On review of those suggestions, only two seem pertinent.

 Plaintiff argues that, since the pointing gesture was not intended by the unidentified man to be a substitute for oral or written expression under the meaning of section 225 of the Evidence Code,8 the evidence was not excludable as hearsay under section 1200 of the Evidence Code.9  This assertion flies in the face of the basic rationale for the hearsay rule and the concomitant protections which it affords.   Apparently, no one knows what the unidentified man intended by his gesture.   Since his identity was unknown, defendants were deprived of an opportunity to cross-examine such person as a witness.

Counsel for plaintiff argued to the jury that such evidence proved that she fell into a hole in defendants' parking lot, yet, on this appeal, counsel now claims that the man meant nothing by his conduct.   Such inconsistency is untenable.   The conduct of the unidentified man, as offered into evidence, is an implied assertion of the fact which such evidence was offered to prove, viz., that plaintiff fell into the hole.  (Witkin, Cal. Evidence (2d ed. 1966) The Hearsay Rule, § 472, p. 434;  The Hearsay Rule and Its Exceptions, 2 U.C.L.A.L.Rev. 43, 46 (1954–55).)   Since the jury was deprived of the direct testimony by the unidentified person, such conduct must be regarded as an implied assertion by an unidentified declarant.   As previously noted, plaintiff relied on such implied assertion in her proof of the proximate causation of her injuries.   Thus, it is hearsay evidence and, as such, was inadmissible under sections 225 and 1200 of the Evidence Code.

Plaintiff also suggests that such assertive conduct was properly admitted at trial because it constituted a spontaneous declaration, hence was an exception to the hearsay rule.10

 In determining the presence of the necessary elements for admitting spontaneous statements,11 it is supposed that the declarant has witnessed the event to which his utterance relates.   Although direct proof is not required, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture.  (Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61, 67–68, 58 Cal.Rptr. 223.)   Where there is no evidence of the identity of the witness and where there was no evidence offered that such witness even observed or perceived plaintiff's fall, it is error to admit testimony regarding the unidentified witness' allegedly spontaneous statements.  (P. 68, 58 Cal.Rptr. 223.)

 Here, there was no evidence offered by plaintiff that the gesticulating, unidentified witness actually observed or perceived the event which presumably caused his spontaneous statement.   Thus, such evidence was insufficient for purposes of section 1240 of the Evidence Code, and was inadmissible as hearsay.   The trial court erred in allowing plaintiff to testify to such conduct by a third person.

 Plaintiff claims that the admission of the hearsay evidence, even though arguably erroneous, did not rise to the level of reversible error.

In this case, that is simply not true.   Here the hearsay evidence was proffered and admitted for the purpose of establishing the proximate causation of the plaintiff's injuries.   Such purpose was to prove a material issue in plaintiff's case, hence the error cannot be deemed immaterial.   Obviously, such evidence was highly prejudicial to defendants, since it tended to establish an essential element of plaintiff's case, the proof of which otherwise would have been based solely on her own impeached testimony.   Under these circumstances, we must conclude that such prejudice resulted in a miscarriage of justice and necessitates a reversal of the judgment.   (Evid.Code, § 353.)

 Plaintiff seeks to take advantage of the defendants' appeal by challenging two instructions given by the trial court in its charge to the jury, viz.:  BAJI Nos. 15.32 and 15.51.

Since plaintiff is not an appellant, she is in no position to make affirmative assignments of error.  (6 Witkin, Cal. Procedure (2d ed. 1971, pt. I) Appeal, §§ 266–267, pp. 4257–4258;  5 Cal.Jur.3d, Appellate Review, § 475, pp. 108–110.)   In any event, the instructions complained of are based upon our holding in Borns v. Butts, supra, 98 Cal.App.3d 208, 159 Cal.Rptr. 400.   We do not agree that they erroneously state the law.

Finally, plaintiff claims that, if this court should find that nine identical jurors must agree on all of the essential special interrogatories, then she is entitled to a partial verdict on the first two issues regarding defendants' negligence and the proximate causation of her injuries by such negligence, and that a retrial should be required only on the remaining issues, regarding plaintiff's negligence and proximate causation, the amount of damages, and the apportionment of fault.

 We disagree.   The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition;  however, such retrials should be granted only when it is clear that no injustice will result.  (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 552–553, 138 Cal.Rptr. 705, 564 P.2d 857;  Liodas v. Sahadi (1977) 19 Cal.3d 278, 285–286, 137 Cal.Rptr. 635, 562 P.2d 316;  Leipert v. Honold (1952) 39 Cal.2d 462, 466, 247 P.2d 324.)

Here, the issues of defendants' negligence and the proximate causation of plaintiff's injuries by such negligence cannot be severed from the retrial of the remaining issues.   Such a limited retrial would be unjust to defendants, since the jury would be deprived of an opportunity to adequately and fairly balance the respective fault of the two parties.   Under a comparative fault system of balancing plaintiff's and defendant's negligence, the questions of the relative fault of each party are inextricably intertwined.  (Hasson v. Ford Motor Co., supra, at pp. 552–553, 138 Cal.Rptr. 705, 564 P.2d 857.)12

The judgment is reversed.   The purported appeal from the order denying a mistrial is dismissed.


1.   Defendants also purport to appeal from an order denying their request for mistrial, which is nonappealable but reviewable on appeal from the judgment.

2.   The distinction between general and special verdicts is governed by section 624 of the Code of Civil Procedure, which provides:  “The verdict of a jury is either general or special.   A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant;  a special verdict is that by which the jury find the facts only, leaving the judgment to the Court.   The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them;  and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.”

3.   Citing Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 196 P. 57;  Nelson v. Superior Court (1938) 26 Cal.App.2d 119, 78 P.2d 1037, and Schoenbach v. Key System Transit Lines (1959) 168 Cal.App.2d 302, 335 P.2d 725.   Subsequent to filing of briefs herein, this court has had occasion to adopt the juror voting requirement suggested by defendants.   (Borns v. Butts (1979) 98 Cal.App.3d 208, 159 Cal.Rptr. 400.)   As discussed infra, we find it appropriate to apply our ruling to the present case.

4.   The poll of the jurors revealed the voting on the individual special verdicts was distributed as follows:WasWasIsIsD's neg.P's neg.$14,69790%/10%Was D.prox.Was Pprox.youryourC1JURORneg.?cause?neg.?cause?answer?answer?  1. Gelbyesyesyesyesnono  2. Patrick*yesyesyesyesyesyes  3. Allisonyesyesnonoyesyes  4. Fooyesnoyesyesyesyes  5. Williamsyesyesnonoyesyes  6. Foster*yesyesyesyesyesyes  7. Meyers*yesyesyesyesyesyes  8. Lorianoyesyesnononono  9. Lane*yesyesyesyesyesyes 10. Bell*yesyesyesyesyesyes 11. Chrest*yesyesyesyesyesyes 12. Martinyesyesyesyesnono

FOOTNOTE.  FN* Asterisk (*) indicates that that juror agreed on all special verdicts necessary for judgment.

5.   Six of the jurors (Patrick, Foster, Meyers, Lane, Bell and Chrest) answered the interrogatories in such a manner as to make it entirely clear that they were voting for a verdict in plaintiff's favor in the amount of $14,697.   Thus, each of these jurors found that plaintiff and defendants were both negligent and that the negligence of both had proximately caused plaintiff's injuries.   They then went on to find that fault was attributable 90 percent to defendants and 10 percent to plaintiff, and that the amount of plaintiff's damages was $14,697.   Two other jurors (Williams and Allison) answered the interrogatories in a somewhat confusing manner.   These two jurors found that defendants were negligent and that their negligence was a proximate cause of plaintiff's injuries, but that plaintiff was not negligent.   However, they then went on to find that fault was attributable 90 percent to defendants and 10 percent to plaintiffs!   Both jurors agreed that the amount of plaintiff's damages was $14,697.   Since jurors Williams and Allison were each of the opinion that plaintiff was not negligent, they ought not to have found plaintiff 10 percent at fault but should have attributed the fault entirely to defendants.   However, this inconsistency is not fatal since it is clear that those two jurors favored a verdict for plaintiff in the amount of $14,697.   Juror Loriano found that defendants were negligent and that their negligence was a proximate cause of plaintiff's injuries;  further, she found that plaintiff was not negligent.   Loriano did not agree that fault should be attributed 90 percent to defendants and 10 percent to plaintiff.   Also, she did not agree that plaintiff was damaged in the amount of $14,697.   Loriano's answers to the interrogatories are entirely consistent on the issue of liability and show that she was voting for a verdict in favor of plaintiff.   Her refusal to agree with a 90 percent/10 percent allocation of fault is entirely proper, since she had previously found that plaintiff was not negligent and thus, inferably, that fault was attributable 100 percent to defendants.   Loriano disagreed only with the amount of damage sustained by plaintiff, and we have no way of knowing whether she favored a higher award or a lower award, or any award.   Juror Foo answered the interrogatories in a very confusing manner.   Foo found that, while plaintiff and defendants were both negligent, plaintiff's negligence was a proximate cause of her injuries, whereas defendants' negligence was not.   These findings demonstrate that juror Foo found that there was no basis for imposing liability upon defendants.   Foo's subsequent finding that fault was attributable 90 percent to defendants and 10 percent to plaintiff is meaningless in view of his prior finding that defendants' negligence was not a proximate cause of plaintiff's injuries.   The two remaining jurors, Gelb and Martin, found that plaintiff and defendants were both guilty of negligence which proximately caused plaintiff's injuries, but they did not agree to a 90 percent-10 percent allocation of fault nor did they agree that plaintiff had been damaged in the amount of $14,697.   Since the negative vote on the allocation of fault could well have meant that both these jurors attributed the fault 90 percent to plaintiff and 10 percent to defendants (for example), these jurors cannot be deemed to have voted in favor of a verdict for plaintiff.

6.   In United Farm Workers of America v. Superior Court (1980) 111 Cal.App.3d 1009, 169 Cal.Rptr. 94, the Fifth District Court of Appeal disagreed with the holding of Borns.   However, that case is factually distinguishable from this case.  (Pp. 1013–1014, 169 Cal.Rptr. 94.)

7.   Plaintiff contends that sections 702 and 800 of the Evidence Code permit a witness to testify to matters within that witness' personal knowledge and opinion, respectively.   Such provisions are not, however, sufficient to exclude evidence from the purview of the hearsay rule.

8.   Section 225 of the Evidence Code provides:  “ ‘Statement’ means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.”

9.   Section 1200 of the Evidence Code provides:  “(a) ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.  [¶] (b) Except as provided by law, hearsay evidence is inadmissible.  [¶] (c) This section shall be known and may be cited as the hearsay rule.”

10.   Section 1240 of the Evidence Code provides:  “Evidence of a statement is not made inadmissible by the hearsay rule if the statement:  [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

11.   The required elements for admissibility of spontaneous statements are provided by the California Supreme Court in Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 106 P.2d 895.   To be rendered admissible, it is required that (1) there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting;  (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance;  and (3) the utterance must relate to the circumstances of the occurrence preceding it.  (P. 468, 106 P.2d 895.)

12.   In view of the fact that reversal is required for the two reasons stated above, we need not discuss defendants' remaining contention concerning the allegedly improper admission of evidence as to the diabetic condition of plaintiff's daughter.   While we have some misgivings about the admissibility of such evidence in light of section 352 of the Evidence Code, the error, if any, was harmless.

ROUSE, Associate Justice.

TAYLOR, P. J., and MILLER, J., concur. Hearing denied; KAUS, J., did not participate.

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