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Court of Appeal, Second District, Division 5, California.

James M. HASSON, a Minor, by and through his Guardian ad Litem Jack M. Hasson, and Jack M. Hasson, Individually, Plaintiffs, Respondents, and Cross-Appellants, v. FORD MOTOR COMPANY, Defendant, Appellant, and Cross-Respondent.

Civ. 57952.

Decided: November 25, 1981

McCutchen, Black, Verleger, & Shea, Winchester Cooley, III, Hugh C. Gardner, III, Los Angeles, for Ford Motor Co. Harney & Moore, David M. Harney, Los Angeles, Horvitz & Greines, Ellis J. Horvitz, Encino, Gerald H. B. Kane, Jr., Redondo Beach, for James M. Hasson et al.

Defendant appeals from a judgment awarding plaintiffs $5,206,657 in compensatory damages and $4,000,000 in punitive damage and from an order denying a motion for judgment notwithstanding the verdict.

Plaintiffs appeal from the conditional new trial order granting a new trial on the ground of excessive damages only. We reverse the judgment and the conditional new trial order and remand to the trial court for a new trial on all issues because of juror misconduct.


The genesis of this case is an automobile accident which occurred July 17, 1970, when a 1966 Continental automobile manufactured by Ford Motor Company suffered a brake failure while travelling in the Hollywood Hills and crashed into a fountain and a wall, destroying the car and leaving the driver severely disabled. The driver, plaintiff James M. Hasson, was at that time, 19 years; and his father, Jack M. Hasson, as his son's guardian ad litem, filed against Ford Motor Company on behalf of his son and himself.

The first trial ended in a verdict in 1973 for plaintiff; this was reversed in 1977 (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 138 Cal.Rptr. 705, 564 P.2d 857).

This appeal arises from the second trial in 1978 at which time the jury returned a verdict for plaintiffs in the sum of seven and one half million dollars in actual damages and four million punitive damages. A motion for new trial by Ford Motor Company was granted on the basis of excessive damages unless plaintiff consented to a reduction of $1,650,000. Plaintiff consented to reduction. The appeal and cross-appeal followed.

Ford Motor Company contends eight categories of error warrant a reversal of the judgment. Plaintiffs contend that damages are not excessive and urge reinstatement of original jury verdict.

Except for the contentions of prejudicial juror misconduct and excessive damages, other issues raised herein involve substantiality of the evidence. Because there was prejudicial juror misconduct necessitating a new trial on all issues, the court does not address the other contentions because resolution of such issues is not necessary to a final determination of the case. (Code Civ.Proc., s 43.)


Voir Dire Concealment.

The contention of defendant that there is prejudicial error because of “concealment” of information by jurors during voir dire is without merit. The juror who failed to divulge she was being sued by her creditors and who subsequently filed bankruptcy did not harm defendant's case in any manner whatsoever. The juror who did not reveal he had lost a 15-year old son because of an automobile accident which caused brain damage was not asked specifically whether any member of his family had suffered brain injuries in an automobile accident. It is difficult, therefore, to see that intentionally he was “concealing” bias, or that his non-disclosure was prejudicial.

Juror Misconduct.

However, the contention by defendant of various acts of improper conduct by jurors during the trial is a basis for serious and concerned scrutiny.

Juror declarations filed by defendant in conjunction with the motion for a new trial referred to (1) statements allegedly made by other jurors that indicated a bias against defendant before deliberations; (2) statements allegedly made by one juror regarding a visit to the Continental dealer, a previous defendant herein; (3) reading by several jurors of an article from the Los Angeles Times about another Ford Motor Company case, allegedly brought into the courtroom by another juror; (4) reading by a juror of A Night In Byzantium ; and (5) observation of three jurors working crossword puzzles during the taking of evidence.

Juror counter-declarations filed by plaintiffs deny the following: any statements of bias made by a juror before deliberations; any statements regarding a visit by a juror to the dealership during the trial; and that if the article from the Los Angeles Times were brought in, which jurors, if any, read it, was not known. However, there was no denial of working crossword puzzles and no denial of reading a book by the “accused” jurors. Each juror insisted that no bias resulted from such activity, in the following language:

“I specifically deny that I did not pay attention to the testimony of witnesses and evidence being presented during the trial or that I was reading extraneous material or doing crossword puzzles in any manner or to any extent, whereby I was not able to pay close attention to the testimony of each and every witness and the presentation of all evidence in open court....”

Evidence Code section 1150(a) permits juror declarations or affidavits to be used for the purpose of showing

“... statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent or dissent from the verdict or concerning the mental processes by which it was determined.”

Any portion of the counter-declarations signed by the jurors which referred to the effect, or non-effect, of external conduct on the decision-making process of said jury is simply inadmissible and cannot be used as objective evidence (People v. Hall (1980) 108 Cal.App.3d 373, 166 Cal.Rptr. 578, and should have been stricken by the trial judge at the hearing on the motion for new trial and judgment notwithstanding the verdict

In Smith v. Covell (1980) 100 Cal.App.3d 947, 161 Cal.Rptr. 377 (citing at page 953, People v. Honeycutt, (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050), the court states:

“ ‘(A) presumption of prejudice arises from any juror misconduct (which) presumption may be rebutted by proof that no prejudice actually resulted.’ ...”

In Deward v. Clough (1966) 245 Cal.App.2d 439 at page 444, 54 Cal.Rptr. 68 the court states:

“... the right to a trial by jury in an action such as this is jurisdictional. (Citations.) ... And ‘the right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury....’ (Citations.) The guarantee is to 12 impartial jurors....” (Original in underscore and italics; italics added.)

A crossword-puzzle working juror attempting to ascertain the proper word has a closed mind, or at minimum, an interrupted attention span. Similarly a novel-reading juror cannot concentrate on both the flow of the plot and the flow of the testimony. Such inattention implies prejudgment of the case, which is misconduct.

Nothing admissible appears in the record herein to rebut the presumption of prejudice which arises from such juror misconduct. The inescapable conclusion is that the parties did not have 12 unbiased, impartial jurors.

The judgment and new trial order both must be reversed for a new trial on all issues by an unbiased jury.



RALPH, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ASHBY, Acting P. J., and HASTINGS, J., concur.