KROUSE v. GRAHAM (1976)

Defendant appeals from a judgment on verdict in open court awarding damages totaling $442,000 to plaintiffs. $300,000 of said damages were awarded to plaintiffs Benjamin Clifford Krouse, Jeffrey Thomas Krouse, a minor, Clifford Trimble Krouse, Nancy Lynn Elliott, Mary Lou MacDonald, and Sally Ann Nelson, as heirs of Elizabeth Krouse, deceased (hereinafter referred to as the ‘plaintiff heirs'), upon their cause of action for damages for the wrongful death of Elizabeth Krouse, $52,500 was awarded to plaintiff Benjamin Krouse upon his cause of action for damages for personal injury sustained by him (a) as a result of physical trauma from a rear-end collision between his parked Toyota automobile and defendant's moving Cadillac, and (b) physical injury and emotional distress caused by being present at and a percipient witness of the death of his wife, Elizabeth Krouse, as part of the same incident, $90,000 damages were awarded to plaintiff Vinka Mladinov on her cause of action for damages for personal injury suffered by her when defendant's car also collided with her body at the time of such collision.

Liability was admitted by defendant. The only issue submitted to the jury was that of damages.

Evidence was received concerning the circumstances of the accident which killed Mrs. Krouse and injured plaintiffs Benjamin Krouse and Vinka Mladinov. The Krouses' automobile was stopped at the curb in front of plaintiff Mladinov's house, which was directly across the street from the Krouse residence. Benjamin remained in the driver's seat while Mrs. Krouse and plaintiff Mladinov removed groceries from the back seat and placed them on a low wall across the sidewalk. Just as the deceased returned to the curb and started to shut the rear door with plaintiff Mladinov closely following her, defendant's car approached at an estimated 40 miles per hour from the rear of the Krouse vehicle, straddling the curb, and struck the rear of the Krouse vehicle and both women. The force of the collision propelled the Krouse vehicle some 76 feet forward. Plaintiff Mladinov was thrown approximately 20 feet into an ice plant embankment and deceased was thrown under defendant's vehicle.

Details of the accident scene were portrayed in police and newspaper photographs. They showed massive damage to the Krouse automobile, the rear end of which was smashed almost to the rear door. Some of the photographic evidence was received without objection (close-up side and rear views of the Toyota in one of which plaintiff Benjamin Krouse is seen being administered oxygen, a close up view of defendant's Cadillac astride the curb with plaintiff Mladinov lying nearby in the ice plant, covered to the chin by a quilt with a pillow under her head and shading her eyes with her arm). Other photographs, received over defendant's objection, portrayed the general scene with a fire truck, ambulance and tow trucks in attendance. These showed that the street was wide and straight and the pavement was dry.

The evidence with respect to the damages for the wrongful death of Mrs. Krouse was such as to support a substantial award in favor of her heirs. At the time of her death, she was 56 years of age, was able bodied, and was an active homemaker. She had recently retired from employment as a legal secretary at the request of plaintiff Benjamin Krouse. He had been obliged to retire on account of disability and found it lonely spending the time at home without her. Because of his emphysema, Benjamin required considerable ‘nursing.’ In view of Benjamin's disability, responsibility for keeping up the house and the garden, and for attending to the minor son who resided at home fell largely upon the deceased. Generally, deceased was shown to be a loving wife and mother, completed devoted to her husband and her family, with whom she was very close. The testimony indicated a high degree of family socializing, including deceased's care of her grandchildren. There was also testimony that the minor plaintiff was totally dependent upon the deceased for the things a mother would normally do for a youth of his age.

Though the testimony concerning deceased's role as a homemaker, gardener and nurse suggested that a deprivation of these services would result in pecuniary loss to her heirs, plaintiffs offered no testimony placing a specific monetary value upon any such services.

Plaintiff Benjamin Krouse's individual claim for damages included two distinct elements. Some of it related to the injury suffered directly from the physical trauma generated by the impact of the accident. The evidence in this respect showed that Benjamin suffered a broken shoulder blade and a scalp laceration which required sutures. He was discharged from the hospital the day following the accident with his arm in a sling. One week later his sutures were removed and the use of the sling was discontinued; gentle and careful use of the shoulder was recommended for a period of time. Within a month the shoulder injury had sufficiently healed so that there was no pain and the range of motion was normal.

The other element of Benjamin's claim for damages was based upon the alleged emotional trauma resulting from his presence at the scene of his wife's death and his perception of the accident. The evidence in this respect was extensive. Benjamin testified that he observed Mrs. Krouse return to the curb and start to close the rear door of his car; immediately thereafter he saw defendant's car approaching from behind at what he estimated to be 40 to 50 miles per hour. He saw the startled look in defendant's eyes just before defendant's car crashed into his car, knocking it 76 feet with the brake on. Benjamin described the effect of the crash as follows: ‘It tore out the complete back of the car, shattered all the glass, and I was pinned in the wreckage, and there was just dead silence.’ Benjamin described being pinned in the car for 10 to 15 minutes during which time the firemen administered oxygen to him. Benjamin was unable to see what was being done for Mrs. Krouse. He heard the arrival of ambulances but could not see them. On cross-examination, Benjamin testified that he did not see defendant's vehicle strike decedent. He added, however, ‘I knew that it must have, but to actually see it, no.’

Evidence of the massive injuries suffered by deceased in the accident was received over objection of defendant. This included testimony of a county autopsy surgeon qualified as a ‘forensic pathologist,’ expert in the traumatic causes of death, and the autopsy report detailing the dissection and the condition of decedent's body. This report showed catastrophic injuries to almost the entire body of deceased, and a basic cause of death of ‘crushed chest with laceration of heart.’ It also described multiple rib fractures and penetration of organs by fragmented rib ends. Massive hemorrhages totaling several hundred cubic centimeters volume were also described.

The evidence with respect to the effect of deceased's death upon Benjamin Krouse included his own testimony that he suffered extreme depression from which he had not fully recovered at the time of trial. Benjamin's daughter, Mary Lou MacDonald, later described his condition on the day of the accident as ‘a state of utter disbelief, shock; unstable . . ..’ Another daughter, Sally Nelson, testified that she saw him that day and that ‘he was shattered, and he wasn't very coherent at all.’ Still another daughter, Nancy Elliott, described his condition at that time as ‘distraught.’ Mary Lou MacDonald also described Benjamin's condition at the funeral, three days after the accident, as being in a ‘desperate state,’ ‘totally shocked.’

Medical testimony was presented concerning the effect of the accident upon Benjamin. Dr. Dasher, the internist who treated Benjamin for gastrointestinal symptoms commencing about four weeks after the accident, described his condition at that time as ‘extremely nervous and agitated, has nausea and vomiting . . .’ Dr. Dasher testified that in his opinion these symptoms were ‘an aggravation¹ of his symptoms due to a nervous condition secondary to a recent traumatic injury . . .’ [h]is involvement in an accident with his wife, and his injury sustained to his left shoulder.'

Dr. Robert Schmidt, a psychiatrist, testified that Benjamin sought treatment five months after the accident because he was experiencing ‘severe depression, a weight loss over previous weeks of 13 pounds. He was nauseated, vomiting, extremely lonely, feeling he could not go on in life.’ The tragic death of his wife was ‘in his continual memory and it was very disturbing to him, leading to those presenting symptoms.’ Dr. Schmidt gave his definite opinion that Benjamin's condition ‘was brought about by Mr. Krouse witnessing his wife's death and suffering the loss of his wife.’ Benjamin was hospitalized for nine days by Dr. Schmidt and therapy continued thereafter until the depressive condition dispelled some four months later as a result of Benjamin's remarriage. On cross-examination, Dr. Schmidt stated that Benjamin's anger and feelings of retribution toward defendant were an element in his condition. However, on redirect, he stated that the depression ‘due to the loss of his wife’ weighed more heavily, in his opinion, in causing the condition.

The evidence with respect to the damages suffered by plaintiff Mladinov showed that she suffered a comminuted and displaced fracture of the femur of her left leg, a fracture of both rami of her pelvis, and was in shock when brought to the hospital. Her condition required 69 days' hospitalization. The medical specials exceeded $12,000. Surgery was necessary to reduce the fracture of the femur which required insertion of a metal rod. The post-operative period was stormy. Pneumonitis developed and there was a partial collapse of a portion of the lung. Because of these complications, the patient was very slow to ambulate. However, prior to discharge, she was able to ambulate bearing full weight on the injured leg. As of the time of trial, her doctor described the residual condition from the injury as including a limp, significant external rotation of the foot, restricted flexion in the knee such that would cause difficulty in boarding a bus. Though plaintiff Mladinov had no heart problems prior to the accident, she experienced post-operative cardiac problems and was under treatment for this condition at the time of trial. After she went home, plaintiff Mladinov required the assistance of a relative for three mouths due to her inability to get in and out of bed. Thereafter, she employed a walker within the house and used a cane to ‘go a little bit outside around the house.’

Before the accident, plaintiff Mladinov was described as being active and sturdy, doing all her gardening and house cleaning, and even painting and improving her house. She was able to do her shopping by going to the market by bus. After the accident, she was able to do only ‘a little bit in the house, cooking for myself and things like that.’

The court gave the instructions as to the measure of damages without differentiation (other than such as was apparent from the text of some of them) between the various causes of action and the theories upon which they were based. A revised version of BAJI No. 14.13 was read which stated generally that the amount of the award to plaintiffs should include:

‘Reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiff and of which his injury——

‘I should say plaintiffs. You have got to remember that we have a wrongful death and a personal injury here.

‘—by the plaintiffs—and of which their injury was a proximate cause and for similar suffering reasonably certain to be experienced in the future from the same cause.’ The second paragraph of BAJI No. 14.13 was read verbatim.²

With particular reference to the cause of action for wrongful death, the court instructed the jury to return a single verdict against the defendant ‘representing the aggregate of the present cash value of the pecuniary loss suffered by the heirs of the deceased.’ The court also gave BAJI No. 14.50 concerning the measure of damages for death of an adult. This instruction authorized an award of damages which ‘will be just compensation for the pecuniary loss which each heir has suffered by reason of the death of Elizabeth Krouse, deceased.’ It further permitted the jury ‘in determining such pecuniary loss' to consider ‘the pecuniary value of the society, comfort, care, protection and right to receive support, if any, which each of said heirs has lost by reason of [her] death.’ It enjoined the jury, however, not to consider, in determining such pecuniary loss, ‘any pain or suffering of the decedent; any grief or sorrow of [her] heirs.’

In addition, the jury was instructed with respect to the wrongful death claim as follows:

‘If you find that the plaintiff Benjamin Clifford Krouse has suffered or is reasonably certain to suffer in the future any loss of Elizabeth Krouse's love, companionship, comfort, affection, society, solace or moral support, any loss of enjoyment of sexual relations, or any loss of her physical assistance in the operation or maintenance of the home, you shall award him reasonable compensation for any such losses as may be established by the evidence.’

Plaintiff Benjamin Krouse's claim for damages incurred as a result of his witnessing the death of decedent was the subject of another special instruction. As requested, this instruction read as follows:

‘In the event you find that Benjamin Clifford Krouse suffered emotional distress or mental depression as a result of being present at the time his wife, Elizabeth Krouse, was injured or January 20. 1972, you are instructed to award reasonable compensation to Benjamin Clifford Krouse for emotional distress, fright, shock, mental depression, psychological upset, and physical harm associated with the elements of emotional distress. You are further instructed to base your award of damages if any, in this regard in accordance with my general instructions on the manner by which damages are to be reasonably awarded.’

However, according to the reporter's transcript, when read to the jury the last sentence of the instruction was revised to read as follows:

‘You are further instructed to base your award of damages, if any, in this regard in accordance with my general instructions on the manner by which damages are to be reasonably awarded the heirs of Elizabeth Krouse, deceased, or the real parties in this action, and the widower and the children of the deceased.’

The jury was supplied three forms of verdict. One of them found in favor of the six heirs and against the defendant and assessed ‘their damages in the sum of _____ dollars.’ Another found for the plaintiff Benjamin Krouse and against the defendant and assessed ‘his damages in the sum of _____ dollars.’ The third found for the plaintiff Vinka Mladinov and against the defendant and assessed ‘her damages in the sum of _____ dollars.’ The jury was instructed these were the ‘three possible verdicts in this case.’ The verdicts were returned with the blanks filled in with the sums of $300,000, $52,500, and $90,000, respectively.

Defendant moved for a new trial. In addition to claims of error in law occurring at the trial and excessive damages, defendant asserted jury misconduct. The misconduct claim was supported by the declarations of four jurors, each of whom declared under penalty of perjury that several jurors, during deliberations, had commented that attorneys' fees equal to one-third of the recovery would have to be paid to plaintiffs' counsel.³

The declarations further stated that in all deliberations the necessity for the payment of such a fee was considered in determining the amount of the award. In the case of plaintiff Mladinov, the application of this consideration was detailed, that is, it was stated that the award of $90,000 comprised $60,000 actual award, plus a fee of $30,000. This portion of the declarations, however, did not purport to set forth statements to that effect made during jury deliberations.

At the hearing on the motion for a new trial, plaintiffs moved to strike the declarations of the jurors. After hearing argument, the court granted the motion to strike and stated the basis for the ruling as follows:

‘I don't think it is competent evidence to base it on this particular set of affidavits. I don't think that does anything to impeach this verdict. I am always suspect of affidavits after the jury has come in. I, too, don't know what the investigators said or how it was done or under what circumstances, 4 and at this point I am going to grant the motion. I am going to strike the affidavits and declarations of the jurors that were submitted in support of the defendant's motion for new trial.’

The motion for new trial was denied.⁵

Contentions

Defendant contends:

1. The instruction permitting recovery for Benjamin's loss of his wife's consortium was prejudicially erroneous, requiring reversal of both the wrongful death damage verdict in favor of the heirs and the individual verdict in favor of Benjamin.

2. The instruction authorizing recovery by Benjamin for emotional distress suffered as a result of being present at the time his wife was killed was prejudicially erroneous, requiring reversal of the damage award in favor of Benjamin individually.

3. Inflammatory, irrelevant evidence concerning the accident was erroneously received and prejudicially affected each of the damage awards.

4. The court erred by refusing to consider the declarations of the jurors as evidence of misconduct.

5. The verdicts were intrinsically excessive.

Plaintiffs contend that each of the damage awards in unaffected by error or by misconduct and is reasonable in amount.

Judicial economy dictates that we discuss defendant's contentions in respect of each verdict separately. In that manner, if a contention is dispositive and requires reversal, other contentions which would produce the same result need not be extensively dealt with. Accordingly, we discuss in turn the claimed errors as they affect the wrongful death verdict, the verdict in favor of plaintiff Benjamin Krouse, and the verdict in favor of plaintiff Mladinov, in that order.

I THE WRONGFUL DEATH VERDICT IS AFFECTED BY PREJUDICIAL ERROR IN THE INSTRUCTIONS

The instructions relating to the wrongful death damage claim were confusing and conflicting in respect to two distinct elements of the injuries suffered by the heirs. In each instance one version permitted compensation not authorized by the statutory remedy.

A. The Jury Was Erroneously Instructed That the Heirs Could Recover for Mental and Emotional Distress

In a portion of the instructions in which reference was made to the wrongful death claim, the court instructed that plaintiffs were to be awarded ‘reasonable compensation for any . . . anxiety and other mental and emotional distress suffered by the plaintiff[s].’ In another instruction, the court correctly stated that the jury, in determining the pecuniary loss to the heirs, was not to consider ‘any grief or sorrow of [her] heirs.’ The latter instruction correctly stated the law in that respect. As our Supreme Court said in Dickinson v. Southern Pacific Co., 172 Cal. 727, 730–731, 158 P. 183, 185:

‘The action is based on section 377 of the Code of Civil Procedure. At common law no remedy was given for injuries causing death. The right of the survivors to recover in such cases is purely statutory. It is thoroughly settled by many decisions in this state and elsewhere that a plaintiff, suing under a statute like section 377, ‘does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff’ [or the heirs represented by him] ‘on account of the death of the relative; that sorrow and mental anguish caused by the death are not elements of damage; and that nothing can be recovered as a solatium for wounded feelings.’ Morgan v. Southern Pac. Co., 95 Cal. [510] 516, 30 P. 603, 29 Am.St.Rep. 143, 17 L.R.A. 71, and cases cited; Munro v. Pacific Coast Dredging Co., 84 Cal. 515, 24 P. 303, 18 Am.St.Rep. 248; Lange v. Schoeftler, 115 Cal. [388] 390, [47 P. 139]; Burk v. Arcata & M. R. R. Co., 125 Cal. 364, 57 P. 1065, 73 Am.St.Rep. 52; Sneed v. Marysville Gas Co., 149 Cal. [704] 710, 87 P. 376; Hale v. San Bernardino etc. Co., 156 Cal. 716, 106 P. 83; Diller v. Northern California Power Co., 162 Cal. [531] 536, 123 P. 359, Ann.Cas.1913D, 908; Ruiz v. Santa Barbara Gas etc. Co., 164 Cal. [188] 191, 128 P. 330.' (Emphasis added.)

The rule stated in Dickinson has never been questioned in any reported case in this jurisdiction. It is thus clear that insofar as the court instructed that the heirs were entitled to compensation for anxiety and other mental and emotional distress, it was erroneous and in direct conflict with the contrary instruction denying recovery for such element of damage.

B. The Court Erroneously Instructed That the Wrongful Death Award Should Include Compensation for Benjamin's Loss of Consortium of His Wife

The instruction that the jury should award Benjamin reasonable compensation for ‘any loss of Elizabeth Krouse's love, companionship, comfort, affection, society, solace or moral support’ and ‘any loss of enjoyment of sexual relations' was, according to respondents, reflected in the wrongful death verdict. In their brief they state: ‘The total award of $300,000 includes a widower (in general, and with regard to his special rights under Rodriguez, supra) and five children.’ By its reading of BAJI No. 14.50, the court correctly indicated that the ‘in general‘ award to the spouse on account of the loss of ‘society, comfort, care, protection’ was limited to the ‘pecuniary loss' occasioned thereby. His ‘special rights' as defined in the specific instruction relating to him contained no such limitation; recovery for loss of consortium was authorized regardless of whether such loss entailed a pecuniary loss to him.

In a long line of decisions extending from 1880 through 1921, our Supreme Court consistently construed the language of Code of Civil Procedure section 377, authorizing ‘such damages . . . as under all the circumstances of the case, may be just,’ as permitting recovery for loss of society, comfort and protection only when such ‘circumstances' showed that such society, comfort and protection was of a character that it would be of pecuniary advantage to the heirs. In the most recent decision of our Supreme Court specifically stating the rule in that respect, the existence of such limitation was made perfectly clear. In reversing a judgment of $6,000 in favor of parents for the death of a son, the court said in Parsons v. Easton (1921), 184 Cal. 764, 773–774, 195 P. 419, 422:

‘It is also held that in addition to the pecuniary loss arising from deprivation of direct financial assistance or services, while nothing can be allowed for grief, sorrow, and mental suffering of the heirs of a person whose death is caused by negligence, additional damages may be given where the ‘circumstances' referred to in section 377 indicate that there may be a pecuniary loss to a parent from the death of a child or to a wife from the death of her husband arising from the deprivation of the ‘society, comfort, and protection’ of such child or husband. Beeson v. Green Mountain G. M. Co., 57 Cal. [20] 38; Munro v. Pacific Coast, etc., Co., 84 Cal. 525, 24 P. 303, 18 Am.St.Rep. 248. But this is not a universal right existing in every case. It is allowable only where the ‘circumstances' show a reasonable probability that the ‘society, comfort, and protection’ afforded to the surviving parent or wife was of such a character that it would be of pecuniary advantage to the parent or wife, and that a deprivation thereof would entail a pecuniary loss to them. Thus in the Beeson case the court said: ‘The loss of a kind husband might be a considerable pecuniary loss to a wife; she loses his advice and assistance in many matters of domestic economy.’ Manifestly, no allowance can be made because of a possible loss arising from circumstances which do not appear from the evidence and which rest upon conjecture or imagination. The evidence in this case does not show circumstances indicating that the society, comfort, and protection of the son had been of any appreciable pecuniary advantage to the plaintiffs, or any reasonable probability that it would be so in the future. It may be that they dearly loved him and that they loved him the more because of his infirmities and helplessness. But it is pecuniary loss only, and not the loss of an object of love and affection that the law recognizes as ground for allowing damages to the heirs of one whose death has been caused by the negligence of a third person.'

(Emphasis added.)

The continued viability of the rule stated in Parsons was recognized in Fields v. Riley, 1 Cal.App.3d 308, 315, 81 Cal.Rptr. 671, 675, where the court said:

‘But as noted in Parsons v. Easton (1921) 184 Cal. 764, 773–774, 195 P. 419, damages for the deprivation of the society and comfort of a child are not a universal right existing in every case; they are allowable only where circumstances show a reasonable probability that the ‘society, comfort, and protection’ afforded to the surviving parent was of such a character that it would be of pecuniary advantage to the parent, and thus would entail a pecuniary loss to him. (See, also Ure v. Maggio Bros. Co., supra, 24 Cal.App.2d [490] at pp. 495–496, 75 P.2d 534.)'

Plaintiffs claim, however, that the decision of our Supreme Court in Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, states a departure from this imitation. In Rodriguez, the court overruled its prior decisions in Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 328 P.2d 449, and West v. City of San Diego, 54 Cal.2d 469, 6 Cal.Rptr. 289, 353 P.2d 929, which had denied any recovery for loss of consortium resulting from injuries to a plaintiff's spouse. Recovery was authorized for loss of “consortium,' i. e., for loss of conjugal fellowship and sexual relations.' (12 Cal.3d at p. 385, 115 Cal.Rptr. at p. 766, 525 P.2d at p. 670.) The court expanded this definition by saying: ‘'The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more.” (12 Cal.3d at pp. 404–405, 115 Cal.Rptr. at p. 780, 525 P.2d at p. 684.) No mention is made anywhere in the opinion of a requirement that the ‘consortium’ be shown to be of ‘such character that it would be of pecuniary advantage’ to the plaintiff, and some of the elements listed patently are not of that character. We may, therefore, conclude that the spouse of an injured party deprived of consortium does not have to meet the requirements imposed on wrongful death claimants in the long line of cases exemplified by Parsons.

However, plaintiffs' claim that Rodriguez affords the surviving spouse ‘special rights' as a wrongful death claimant finds no support in the opinion. The only mention of wrongful death damages in the opinion is a reference to the trial court's criticism of Deshotel in light of the rule ‘that in a wrongful death case a widow can recover damages for the loss of her deceased husband's society, comfort, and protection.'⁶ (12 Cal.3d at p. 387, 115 Cal.Rptr. at p. 767, 525 P.2d at p. 671.) Elsewhere in the opinion the term ‘consortium’ is consistently used to describe the conjugal benefits the loss of which is made compensable in the case of injury to a spouse. It appears, therefore, that the court was careful not to equate the position of a widow or widower who is a wrongful death heir and that of the plaintiff in Rodriguez, and that it did not reverse the long line of Supreme Court cases construing Code of Civil Procedure section 377 to limit recovery in wrongful death cases on account of loss of society, comfort and care to an amount which represents the pecuniary loss resulting from a deprivation thereof.

An examination of the reasons given in the opinion for avoiding the effect of ‘Stare decisis and the role of the Legislature’ confirms this conclusion. Thus, though the court demonstrated that Deshotel was in accord with the majority common law rule at the time it was decided but had now become the minority rule, no similar demonstration was made respecting wrongful death recovery. Moreover, the court characterized the rule denying recovery as a ‘judicially created rule,’ obviating any obligation to defer to the Legislature to change it. The reversal of a long line of decisions construing a purely statutory remedy would invoke entirely different considerations.

In Buckley v. Chadwick, 45 Cal.2d 183, 288 P.2d 12, 289 P.2d 242, our Supreme Court referred to Code of Civil Procedure, section 377, having been amended three times prior to the decision in that case and said (45 Cal.2d at p. 200, 288 P.2d at p. 22):

‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Fn. omitted.] [Citations.]’

Further amendments to Code of Civil Procedure, section 377, since Buckley, have retained the same language defining the compensation recoverable by the heirs.

Under the circumstances, we cannot construe Rodriguez as an extension of the heirs' statutory remedy for wrongful death to include compensation for all loss of consortium suffered by the surviving spouse.

c. The Error in the Instructions Requires Reversal of the Verdict

The standard for determining when an instructional error is prejudicial is stated in Henderson v. Harnischfeger Corp., 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 5, 527 P.2d 353, 357, as follows:

‘Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. (4 Witkin, Cal. Procedure (2d ed. 1971) pp. 3056–3057.) To put it another way, ‘[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’' (Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 359 P.2d 929; see also Luque v. McLean, supra, 8 Cal.3d 136, 147, 104 Cal.Rptr. 443, 501 P.2d 1163; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471, 62 Cal.Rptr. 577, 432 P.2d 193; Oettinger v. Stewart (1944) 24 Cal.2d 133, 140, 148 P.2d 19, [156 A.L.R. 1221].)'

We have concluded that the wrongful death damage instructions were confusing and contradictory in two respects. In both instances, the instructions permitted the jury to award damages based upon factors which were not legitimately included. The issue of damages, being the sole issue, was, of course, crucial to the case. There was considerable evidence from which the jury might conclude that extreme grief and sorrow was suffered by Benjamin and that he was deprived of considerable conjugal fellowship. Though it is apparent that he was also deprived of society, comfort and care of substantial pecuniary value, we cannot speculate that the basis of the verdict was limited to the latter. It seems quite probable that the jury's verdict was based upon the erroneous instructions; consequently, the judgment in favor of plaintiff heirs must be reversed.

We, therefore, find it unnecessary to discuss any further contentions of defendant bearing upon the wrongful death verdict.

II

INSTRUCTIONAL ERROR AFFECTED THE VERDICT IN FAVOR OF BENJAMIN KROUSE

The jury was instructed that Benjamin could recover damages for emotional distress or mental depression suffered as a result of being present at the time his wife was struck by defendant's automobile. Defendant contends that no instruction authorizing recovery for injury to Benjamin resulting from a reaction to his wife's misfortune was authorized because Benjamin admitted that he did not see her being struck by defendant's car nor immediately observe the effect upon her. In addition, defendant contends that the instruction given improperly permitted recovery on the basis of Benjamin being ‘present’ without proof he witnessed the fatal occurrence, and without proof that he suffered physical injury as a result of having done so.

In Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 411 P.2d 912 our Supreme Court held that ‘a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child’ (68 Cal.2d at p. 730, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914) should be permitted to recover damages therefor. In that case, the plaintiff alleged that she ‘was in close proximity to th . . . collision and personally witnessed said collision,’ (68 Cal.2d at p. 731, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914) and that, as a proximate result she “sustained great emotional disturbance and shock and injury to her nervous system' which caused her great physical and mental pain and suffering.' (Id.) A judgment for defendant on the pleadings was reversed. In so holding, the court made foreseeability the criterion of recovery. It said (68 Cal.2d at pp. 740–741, 69 Cal.Rptr. at p. 80, 441 P.2d at p. 920):

‘We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.’ (Emphasis added.)

Subsequent decisions have enlarged upon the requirement that plaintiffs suffer a shock which results in physical injury. In Capelouto v. Kaiser Foundation Hospitals, 7 Cal.3d 889, 892, fn. 1, 103 Cal.Rptr. 856, 858, 500 P.2d 880, 882, the court held that it was not error to refuse an instruction that “. . . a witness to injuries to his child may recover damages for any physical effects upon himself as well as for any mental or emotional distress which he may suffer,” saying (Id.):

‘The refused instruction would permit recovery on an additional ground: injuries caused to the parents by the mere witnessing properly rejected this latter instruction, which was based upon our holding in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316. Dillon makes clear that a parent may recover for witnessing a child's distress only if the parent suffers actual physical injury. (68 Cal.2d ap p. 740, 69 Cal.Rptr. 72, 441 P.2d 912. Id.) The record in the present case, while demonstrating that Kim's parents suffered the emotional distress and mental anguish that is normal for parents of a seriously ill or injured child, does not reveal that the parents suffered the actual physical injury necessary for recovery under Dillon.’

In Hair v. County of Monterey, 45 Cal.App.3d 538, 19 Cal.Rptr. 639, physical injury was characterized as ‘the threshold element of recovery under the opinion rendered in Dillon v. Legg . . .’ (45 Cal.App.3d at p. 542, 119 Cal.Rptr. at p. 642.) It appears, therefore, that in order to be the basis of an action for damages under Dillon, plaintiff's emotional response to witnessing another's injury or death must generate actual physical injury.

Subsequent cases have also discussed Dillon's requirement that the injury result ‘from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident . . .’ (Dillon, supra, 68 Cal.2d at p. 740, 69 Cal.Rptr. at p. 80, 441 P.2d at p. 920.) In Deboe v. Horn, 16 Cal.App.3d 221, 94 Cal.Rptr.. 77, this court affirmed a judgment of dismissal after a demurrer was sustained without leave to amend to plaintiff's complaint which alleged that her husband was rushed from the scene of the accident to the nearest hospital where she was summoned to the emergency room and “observed and was told her husband was totally paralyzed.” (16 Cal.App.3d at p. 223, 94 Cal.Rptr. at p. 79.) This court said:

‘It was stated in Dillon v. Legg, supra, 68 Cal.2d 728, 730, 69 Cal.Rptr. 72, 441 P.2d 912 (a 4 to 3 decision): ‘That the courts should allow recovery to a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child for which the tortfeasor is liable in negligence. . . .’ (Italics added.) This principle was extended in Archibald v. Braverman, 275 Cal.App.2d 253, 255, 79 Cal.Rptr. 723 (hg. den.) to a situation where the mother of a child injured ‘did not actually witness the tort but viewed the child's injuries within moments after the occurrence of the injury-producing event.’ (Italics added.)

‘We note in Dillon v. Legg, supra 68 Cal.2d 728, 731, 69 Cal.Rptr. 72, 441 P.2d 912, that there were allegations in the complaint that the mother and a sister of the injured child were ‘in close proximity to the . . . collision and personally witnessed said collision’ as a result of which each ‘sustained great emotional disturbance and shock’ (italics added), and in Archibald v. Braverman, supra, 275 Cal.App.2d 253, 255, 79 Cal.Rptr. 723 that the complaint stated that ‘within moments . . . the plaintiff appeared at the scene in an effort to render aid to her son; upon observing her son's injuries she suffered severe fright, shock, and mental illness requiring institutionalization.’ (Italics added.)' (16 Cal.App.3d at pp. 223–224, 94 Cal.Rptr. at p. 79.)

In Powers v. Sissoev, 39 Cal.App.3d 865, 874, 114 Cal.Rptr. 868, 874, the court said:

‘[W]e do not think that this court (especially in light of th strong dissents in Dillon) should extend the rule to a case such as this where the shock, as claimed, resulted from seeing the daughter 30 to 60 minutes after the accident and thereafter under circumstances not materially different from those undergone by every parent whose child has been injured in a nonobserved and antecedent accident.’

The foregoing authorities do not support defendant's contention that there was a lack of evidentiary support for an instruction based on Dillon. The requirement of ‘sensory and contemporaneous observance of the accident’ does not necessarily mean visual observation of the impact causing the death or injury. Though Benjamin did not see decedent struck by defendant's automobile, he fully perceived the fact that she had been so struck. He saw her position an instant before the impact, observed defendant's large vehicle approach at a high speed on a course which would make it collide with her, and knew that defendant's car ‘must have’ struck her. That qualifies him as a percipient witness to the occurrence of catastrophic injuries.

There was no lack of evidence from which the jury could legitimately find that Benjamin suffered serious shock to his nervous system which was the cause of the gastric disturbance for which he was subsequently treated. This gastric disturbance was a sufficient ‘physical injury’ to qualify under Dillon if the jury found that it was caused by Benjamin's shock occasioned by his perception of the collision between defendant's car and decedent.

The evidence with respect to the causal connection was such that conflicting inferences could be drawn therefrom. The internist's opinion that the gastrointestinal symptoms were most likely aggravated by Benjamin's ‘involvement in an accident with his wife,’ and the psychiatrist's opinion that Benjamin's severe depression which caused similar symptoms treated by him ‘was brought about by Mr. Krouse's witnessing his wife's death and suffering the loss of his wife’ supported the causal connection. On the other hand, Dr. Schmidt's testimony that Benjamin's feelings of anger and retribution were an element, together with the remission of Benjamin's symptoms upon his remarriage, suggests the contrary. Dr. Schmidt's final reconciliation that the depression ‘due to the loss of his wife’ weighed more heavily than the feelings of retribution does not eliminate this problem, because suffering the loss of his wife and witnessing his wife's death are not the same factor. There was, therefore, a real question to be resolved by the jury as to whether there was physical injury, that is, the gastrointestinal disturbance, caused by Benjamin witnessing his wife's death, rather than by his feelings of anger and retribution, or his feelings of grief and sorrow over losing his wife. Consequently, a correct instruction on the subject was imperative.

A. The Instruction Given Did Not Advise the Jury Correctly as to the Requirements for Recovery on a Dillon Theory

First, the instruction given omitted the requirement that the injury resulted from Benjamin's sensory and contemporaneous observance of the accident and substituted only the requirement that it resulted from his ‘being present at the time his wife, Elizabeth Krouse, was injured.’ His being present may well have caused injury by contributing to his feelings of anger and retribution instead of injuring him through ‘direct emotional impact’ from his perception.

Second, the instruction entirely omits the requirement that physical injury be caused by the direct emotional impact from the sensory and contemporaneous observance of the accident. The gastrointestinal symptoms experienced by Benjamin were attributable under the evidence either to (a) the direct emotional impact of the shock from Benjamin's sensory and contemporaneous observance of the accident, (b) the effect of his feelings of anger and retribution against defendant, or (c) his grief and sorrow over losing his wife. The instruction should have limited recovery based upon Benjamin's emotional distress to situation (a).

B. Prejudice Resulted From the Error

The error in the instruction must be deemed prejudicial under the rule stated in Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 117 Cal.Rptr. 1, 527 P.2d 353. The evidence with respect to the physical injuries suffered by Benjamin as a direct result of the impact of defendant's car with the car in which he was sitting was not such as normally would result in a verdict of $52,000. Obviously, substantial damages may have been awarded on account of the emotional distress, depression and associated gastrointestinal disturbance experienced by Benjamin. It is, therefore, entirely probable that the jury's verdict may have been substantially enlarged by the erroneous instruction.

Since the verdict in favor of plaintiff Benjamin Krouse must be reversed for error in instructions, it is unnecessary to consider defendant's other contentions attacking this verdict.

III

THE VERDICT IN FAVOR OF PLAINTIFF MLADINOV WAS UNAFFECTED BY TRIAL COURT ERROR AND IS NOT INTRINSICALLY EXCESSIVE

Defendant does not claim there was any instructional error affecting the verdict of $90,000 if favor of plaintiff Mladinov. Consideration, however, must be given to the claim of error in the admission of evidence of the circumstances of the accident, and the injuries to decedent, and to defendant's claim that the award was intrinsically excessive.

A. Evidentiary Error Occurred

Defendant's objection to the receipt of the evidence as to the circumstances of the accident was not well founded. It was based upon the fact that defendant stipulated to liability and thereby rendered irrelevant this evidence which had no bearing upon the elements of damage in a wrongful death claim. As our Supreme Court said in Fuentes v. Tucker, 31 Cal.2d 1, 5, 187 P.2d 752, 755:

‘The manner in which the accident occurred, the force of the impact, or defendant's intoxication could have no bearing on these elements of damage. The evidence, therefore, was not material to any issue before the jury, and its admission was error.’

Any attempt to ‘bootleg’ inflammatory evidence rendered irrelevant by a stipulation for liability should, of course, be viewed with great disfavor. (Albrecht v. Broughton, 6 Cal.App.3d 173, 85 Cal.Rptr. 659.) However, in this case, though liability was admitted, defendant did not stipulate to the seriousness of the physical injuries sustained by plaintiffs Mladinov and Benjamin Krouse. The circumstances of the occurrence reasonably bearing upon the force and nature of the impact between defendant's car, plaintiff Benjamin Krouse's automobile, and plaintiff Mladinov's body were, therefore, relevant. Such circumstances likewise were admissible in respect of plaintiff Benjamin Krouse's claim for damages based upon Dillon. Benjamin could not demonstrate that what he witnessed on that occasion caused profound shock without describing what occurred. The foregoing considerations justified the court in receiving evidence reasonably relevant to these issues, provided its probative effect was not outweighed by its propensity to ‘create substantial danger of undue prejudice, of confusing the issues or of misleading the jury.’ (Evid.Code, § 352.)

We have examined the photographic evidence depicting the scene immediately subsequent to the accident, and the testimony of the various witnesses describing the occurrence. We find none of it unduly inflammatory or prejudicial and conclude that the court did not in any respect abuse its discretion under Evidence Code section 352 by admitting it.

A different situation is presented, however, in respect of the evidence concerning the condition of decedent's body as revealed by the autopsy report and the testimony of the autopsy surgeon and by the testimony of decedent's daughter regarding the reconstruction required to permit an open-coffin funeral. This evidence could conceivably have been relevant to Benjamin's claim for Dillon damages if there were any evidence that he observed the actual effect of the collision upon decedent. His testimony, however, made it clear that he did not perceive the condition of decedent's body at the scene of the accident. This evidence should, therefore, have been excluded. It had a high potential to create an advantage for the wrongful death claimants and for plaintiff Benjamin Krouse. To a lesser degree, it would tend to prejudice defendant's defense, even as against the claim of plaintiff Mladinov, by suggesting he should be penalized.

B. The Evidentiary Error Was Not Prejudicial

To reverse a judgment on account of error in the admission of evidence, this court is required to examine the entire case to determine whether a miscarriage of justice has resulted. (Cal.Const., art. VI, § 13; Tupman v. Haberkern, 208 Cal. 256, 280 P. 970.) In doing so, we have also considered defendant's claim that the verdict of $90,000 in favor of plaintiff Mladinov is intrinsically excessive. Our conclusion is that the damages awarded plaintiff Mladinov were reasonable, taking into account her medical expenses exceeding $12,000, the 69 days of hospitalization during which she suffered life-threatening complications, the pain and suffering incident to the protracted treatment necessary to repair the fracture to her thigh bone, the permanent impairment of function, and the consequent need for assistance in the conduct of daily life functions. It does not appear that the verdict is the product of passion or prejudice, nor that it represents a miscarriage of justice.

IV

THE COURT ERRONEOUSLY STRUCK THE JURORS' DECLARATIONS

It is apparent from the court's comment that it refused to consider any of the content of the four declarations stating that several jurors commented that attorneys' fees comprising one-third of the recovery would have to be paid by plaintiffs to plaintiffs' counsel. Insofar as the declarations reported such comments, they constituted ‘statements made, or conduct, conditions, or events occurring . . . within . . . the jury room, of such a character as is likely to have influenced the verdict improperly,’ made admissible by Evidence Code section 1150. Of course, those portions of the declarations purporting to ‘show the effect of such statement, conduct, condition, or event’ (id.) upon the jurors were inadmissible.

No serious question exists as to the propriety of using jurors' affidavits for the purpose of establishing objective facts ‘open to sight, hearing, and the other senses and thus subject to corroboration’ which tend to demonstrate jury misconduct. (People v. Hutchinson, 71 Cal.2d 342, 350, 78 Cal.Rptr. 196, 210, 455 P.2d 132, 137, cert. denied 396 U.S. 994, 90 S.Ct. 491, 24 L.Ed.2d 457.)

Attorneys' fees are not an allowable element of damage in personal injury or wrongful death actions. (Code of Civ.Proc., § 1021; Le Fave v. Dimond, 46 Cal.2d 868, 870, 299 P.2d 858.) It obviously would be improper for the jury to reach accord as to the amount of damages that would compensate plaintiffs for all legitimate elements of damage and then to add on 50 per cent to take care of plaintiffs' attorneys' fees. Though there is no California case so holding, the courts in other jurisdictions have held that such conduct on the part of the jury would be misconduct requiring reversal (Dunn v. White (1970) 206 Kan. 278, 479 P.2d 215, 219; White Cabs v. Moore (1947) 146 Tex. 101, 203 S.W.2d 200). It was, therefore, necessary for the court to inquire into the matter fully to ascertain the facts as to what was said and done in the jury room and to determine on the basis thereof whether any such jury misconduct influenced the verdict. That inquiry should have included consideration of any counterdeclarations submitted by plaintiffs and, if necessary, examination of the jurors under oath as to everything said and done in the jury room which would bear upon the question as to whether the jury actually awarded attorneys' fees contrary to law.

Plaintiffs' claim that defendant's motion for new trial, insofar as it was based upon the alleged jury misconduct, was inadequate because the showing did not include a ‘no knowledge’ declaration as required by Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 103, 95 Cal.Rptr. 516, 485P.2d 1132, is without merit. The misconduct in this case does not come within the reason of the rule stated in Weathers. The nature of the misconduct, if it occurred, was such that it could not be known until after the verdict. Defendant was, therefore, not required to show that he had no knowledge of it prior to such time. (People v. Adame, 36 Cal.App.3d 402, 410, 111 Cal.Rptr. 462.)

We have concluded that the verdict in favor of plaintiff Mladinov was not intrinsically excessive. This does not, however, compel the conclusion that no injury resulted from jury misconduct, if it occurred. (See White Cabs v. Moore, supra, 203 S.W.2d at pp. 202–203.) On the other hand, the fact that the charges were made by these for jurors does not compel the conclusion either (a) that there was jury misconduct, or (b) that it did in fact affect the verdict. The statement of each such juror that the jury considered $60,000 an appropriate amount to award plaintiff Mladinov for the cost of the assistance to be required during her 10-year life expectancy and that $30,000 was added to this as the fees to be incurred by her, if true, means that the jury totally ignored the $12,000 in medical fees and the prolonged pain and suffering of plaintiff Mladinov. If, therefore, the jury found that $60,000 was required to pay for her care, it seems questionable that a verdict of $90,000 included any substantial amount on account of fees. However, this court is in no position to determine either the existence or the effect of misconduct. The order denying the motion of defendant for a new trial as to plaintiff Mladinov must, therefore, be vacated with directions to the trial court to conduct a new hearing thereon at which consideration is given to the declarations submitted and to any other available evidence bearing upon the charge of misconduct.⁷

Disposition

The judgment in favor of the plaintiff heirs is reversed; the judgment in favor of plaintiff Benjamin Clifford Krouse is reversed; the judgment in favor of plaintiff Vinka Mladinov is affirmed, subject to the trial court's reconsideration of the motion for new trial on the ground of jury misconduct. The order denying defendant's motion for a new trial based upon jury misconduct is vacated as to plaintiff Mladinov and remanded for further proceedings in accordance with the views expressed above.

FOOTNOTES

1.  The patient had a previous history of peptic ulcers.

2.  The second paragraph of BAJI No. 14.13 read as follows:‘No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. [Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.] In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence.’

3.  The pertinent portion of each declaration was identical. It read:‘During deliberations, several jurors commented that attorney fees had to be paid to MR. DAVID HARNEY, for handling the case. It was their belief that attorneys get one-third of the recovery as a fee

4.  In argument, counsel for plaintiffs had argued that jurors were suspectible to pressure from ‘any sharp investigator after the trial is over.’

5.  The denial of the motion for new trial is reviewable on the appeal from the judgment. (Hamasaki v. Flotho, 39 Cal.2d 602, 608, 248 P.2d 910.)

6.  The court's terminology in this respect contrasts with that employed by Justice Peters in making the same criticism in his dissent in West where, with less precision, it was stated: ‘[I]f one spouse is deprived of his consortium rights by reason of the tortious act of defendant that results in the death of the other spouse, recovery may be had for the loss of such consortium.’ (54 Cal.2d at p. 487, 6 Cal.Rptr. at p. 300, 353 P.2d at p. 940.) The suggestion in Pesce v. Summa Corp., 54 Cal.App.3d 86, 90, fn. 1, 126 Cal.Rptr. 451, 453, that ‘[a]pparently, there is a distinction without a discernible difference between loss of society and loss of consortium’ is in the same category. In that case, governed by federal maritime law, the same argument for recovery on account of loss of consortium caused by injury to a spouse on the basis of the wrongful death remedy was found persuasive.

7.  The time limits for filing counter declarations (Code Civ.Proc., § 659a) expired prior to the date of the original hearing. These limits are, however, not jurisdictional (Clemens v. Regents of University of California, 8 Cal.App.3d 1, 21, 87 Cal.Rptr. 108). The court may therefore on its own initative examine the jurors under oath or otherwise inquire into all relevant facts. We, of course, express no opinion as to whether the motion should be granted or denied.

POTTER, Associate Justice.

COBEY, Acting P. J., and ALLPORT, J., concur.