TAYLOR v. UNION PACIFIC RAILROAD CORPORATION (1975)

This is an appeal from a judgment in favor of defendants against plaintiffs rendered by the trial court in an action for the wrongful death of Gary Butler and personal injuries to Lynn Taylor and Susan Stauffacher, all of which were sustained in a train-automobile collision. Negligence of each defendant-respondent¹ was the gravamen of plaintiffs' pleadings.

Only a brief statement of the facts is required because this case must be reversed for unlawfully denying plaintiffs-appellants Taylor and Stauffacher their right to a trial by jury.

A trial by jury, requested and paid for by plaintiffs, commenced on July 25, 1972. The trial continued from day to day and on August 1, 1972, jury fees for July 26 through August 1 were paid by plaintiffs. On August 2 plaintiffs' attorney, Mr. Berman, informed Mr. Colby, the clerk of the trial court, that plaintiffs no longer desired to post the jury fees. Mr. Albert, counsel for defendant railroads, then stated that they would thereafter assume the jury fees. The case continued as a jury trial until the afternoon of August 7 when counsel for defendant railroads decided that they no longer wanted to pay for the jury and asked the clerk to bring the matter to the court's attention. Outside the presence of the jury the court and counsel discussed the matter. The substance of the court's ruling was that once plaintiffs had unilaterally waived the jury, they were precluded from later demanding the jury even though defendants had temporarily continued the trial by jury after plaintiffs' waiver.

The pertinent colloquy between the court and counsel is as follows:

‘MR. BERMAN [counsel for plaintiffs]: Well, is the Court asking me at this time whether or not if the railroad doesn't want to continue posting, that I should, I would continue to post or are you asking me whether——

‘THE COURT: Well, if you have abandoned it, if you have abandoned it, you have abandoned it for all time.

‘MR. BERMAN: Yes.

‘THE COURT: You can't play hot and cold.

‘MR. BERMAN: That's right, your Honor.

‘THE COURT: I have to keep this record straight.

‘MR. BERMAN: Yes.

‘THE COURT: You have refused with knowledge of that fact to——

‘MR. BERMAN: No question about it, your Honor.

‘THE COURT: All right.

‘MR. BERMAN: No question about it. The plaintiffs waived jury some six, seven days ago.

‘THE COURT: All right.

‘MR. ALBERT [counsel for defendant railroads]: I would like to make a record on that, Your Honor. I have asked Mr. Berman on at least five different occasions what his position in this regard is. And all I ever did was to tell Mr. Colby that if he found himself in a position where Berman did not meet his obligation to pay the fee, I would see to it that the money was paid so there would be no difficulty with him, with Mr. Colby not having the money.

‘I had just, I have asked Mr. Berman just now and he said, ‘I'll take that waiver when it comes, the hurdle about waiver when it comes.’

‘That is why I asked Mr. Colby to bring it to the Court's attention. It is my understanding, Your Honor, he is supposed to make a waiver before the defendants can decide what to do. I thought this was the time to find out one way or another.

‘THE COURT: He has waived by refusing to put up his fees. There is no double construction.

‘MR. BERMAN: It was done a long time ago, Your Honor.

‘THE COURT: I dont't know anything about that. All right. Where do we stand now?

‘MR. ALBERT: We stand insofar as my client is concerned, I mean to hereby waive submission of this matter to the jury. . . .

‘THE COURT: Mr. Soiret?

‘MR. SOIRET [counsel for defendant City of Los Angeles]: I will be more than happy to waive the jury, Your Honor.

. . .

‘MR. BERMAN: I want to make it clear from the plaintiffs' point of view, Your Honnor, that this was done a long time ago.

‘THE COURT: I am not casting any blame, holding against anybody. We should have known if there was a waiver there. We should have been advised. Mr. Colby said he didn't advise the Court because counsel was underwriting the thing and that was all right, but now there is an indication from Mr. Albert that he wants a definite waiver on the record. He's got that. Now he waives the jury. That is his privilege.

‘MR. BERMAN: Well, I feel the same way Mr. Albert does, Your Honor. If there is any problem as far as the Court is going to be concerned, then I would split the jury with them or do something to, in order to prevent any miscarriage of justice here.

‘THE COURT: No, I have no problems that way. I have listened to the case closely. I have listened. The presence of a jury or absence of a jury doesn't determine it, as far as this Court is concerned, any degree of its responsibility. In any event, we act as a thirteenth juror sometimes. We have got to know what the case is all about.

‘MR. BERMAN: Your Honor, are you indicating that I have waived forever at this point, as far as you are concerned?

‘THE COURT: Oh, yes, sure. You have so indicated. Is there anything else to be implied from anything you have said?

‘MR. BERMAN: Only that I would discuss the matter once again with my clients, because there has been a change in the conduct of the case. As you say, we have had a jury sitting here for seven days, longer, and there may be a change in their attitudes.

‘THE COURT: Well, so far as we are concerned, so far as the law is concerned, if you have waived by failing to post fees, that is a final act on the plaintiffs' part. That is as final as the law makes it out and you can't later come into the case and say: Now I want a jury; now I don't; now I want a jury; now I don't. You have done it. I don't approve of the way this thing has been handled up to this point for only the reasons indicated. . . .

‘All right. Now is there anything you want to say at this time, Mr. Berman? I am about to call the jury in and tell them that this case will be disposed of without them.

‘MR. BERMAN: Well, at this time, Your Honor, I don't think there is very much for me to say other than the fact that——

‘THE COURT: Any legal objection to the contemplated action?

‘MR. SOIRET: Nothing legal, but——

‘MR. BERMAN: I don't know that I have a basis at this point or would even contemplate a basis for any objection. I just didn't, I just don't feel that it is a fair inference being made toward the conduct of plaintiffs' counsel and I just want the record to show that both defense counsel, including the——

‘THE COURT: Well, I am making no inferences. . . .’ (Emphasis added.)

Plaintiffs concede that when they notified the clerk on August 2 that they would not post the required jury fees, this constituted a waiver. However, they argue that this waiver should not have precluded them from demanding the jury approximately one week later when the defendants gave notice that they were waiving the jury for the remainder of the trial. Plaintiffs contend that once a jury trial has commenced, section 631, subdivision 8 of the Code of Civil Procedure requires that any waiver of the jury must be simultaneously intended and given by all parties. Defendants-respondents seem to agree with plaintiffs on this point. In their appeal briefs they state: ‘[Plaintiffs] had every opportunity to comply with the provisions of California Code of Civil Procedure, Section 631 [subdivision] (8) on August 7, 1972 by simply stating, on the record, a demand by plaintiffs for trial by jury together with the equally simple act of a deposit of the requisite jury fees for that day.'² In other words, defendants-respondents recognize the fact that plaintiffs' rights to continue with the jury existed on August 7, and had not been irretrievably lost on August 2.

Our research has not rewarded us with a case directly in point. We have concluded, however, that the law supports plaintiffs' position.

Plaintiffs were entitled to a jury trial as a matter of right under article I, section 7 of the California Constitution unless they waived such right in the manner prescribed by law. (City of Redondo Beach v. Kumnick, 216 Cal.App.2d 830, 835, 31 Cal.Rptr. 367.) It may not be waived by implication. (Hayden v. Friedman, 190 Cal.App.2d 409, 411, 12 Cal.Rptr. 17.) In case of doubt, the issue of whether a jury has been waived should be resolved in favor of preserving a litigant's constitutional right to a jury trial. (Oakes v. McCarthy Co., 267 Cal.App.2d 231, 265, 73 Cal.Rptr. 127.) Code of Civil Procedure section 631 provides: ‘Trial by jury may be waived by the several parties to an issue of fact in manner following: . . .8. When the party who has demanded trial by jury . . . waives such trial . . . upon or after the commencement of the trial, or fails to deposit the fees as provided in subdivision 6 or 7; by the other party either failing promptly to demand trial by jury before the judge in whose department such waiver, other than for the failure to deposit such fees, was made, or by his failing promptly to deposit the fees provided in subdivision 6 or 7.

‘The court may, in its discretion upon such terms as may be just, allow a trial by jury to be had although there has been a waiver of such a trial.’

Subdivision 8 to section 631 was added in 1970. Several cases prior to this amendment addressed themselves to situations not specifically covered by statute, but which involved issues related to the problem here. They are Cowlin v. Pringle,3 46 Cal.App.2d 472, 116 P.2d 109; De Castro v. Rowe,4 223 Cal.App.2d 547, 36 Cal.Rptr. 53; and Hernandez v. Wilson,5 193 Cal.App.2d 615, 14 Cal.Rptr. 585. The 1970 addition to section 631 provides in substance that after commencement of trial the person who demanded trial by jury waives the jury if he fails to deposit the jury fees; and by the other party either failing to promptly demand trial by jury before the judge hearing the case, or failing promptly to deposit jury fees. There is no record that documents the legislative intent behind subdivision 8. However, because the language of this subdivision and the law in the above cases is so compatible, we can reasonably assume that the Legislature adopted the reasoning of the decisional law and put it in statutory form. We are of the opinion that section 631, subdivision 8 and the cited cases substantiate plaintiff's argument that once the trial has started, there must be a simultaneous waiver by all the parties, even though one of the parties had previously waived the jury. At no instance in this case was there a point in time when all the parties had waived the jury.⁶ Where the constitutional right to a jury trial is properly invoked, neither plaintiff nor defendant has superior rights thereto. (29 Cal.Jur.2d, Jury, § 2, pp. 475–476, citing People v. Stoll, 143 Cal. 689, 77 P. 818.) Once the jury has been sworn, it is not the prerogative of the litigant posting the jury fees to discharge the jury during trial without the concurrence of the other party or parties. Section 631, subdivision 8 does not contain an exception that a prior waiver by one of the parties precludes him from continuing with the jury once it is impaneled and he meets the requirements of this section. Instead it clearly state that after the trial has commenced, if the party posting the fees discontinues the payments, the other party may request the jury and post the fees. If a prior waiver prevents him from exercising this right, the law must be amended by the Legislature.

Defendant-respondent City of Los Angeles claims the record reflects a waiver by all parties on August 7. It calls our attention to the colloquy between judge and counsel reported herein supra. In essence, City of Los Angeles claims that plaintiff's attorney conceded he waived the jury on August 2, and that at no time did he request the court to exercise its discretion to allow plaintiffs' relief from said ‘waiver.’ We have read and re-read minutely the conversation between the court and counsel. We do not believe the record divulges a waiver as required by law. Plaintiffs had no duty to request relief from the August 2 waiver. As stated earlier, section 631, subdivision 8 gives them the right to continue with the jury until such time as they waived the jury by a specific declaration or by not posting the jury fees when such posting, contrary to the case here, would not be an idle act. We agree that the colloquy indicates some confusion and indecision by plaintiffs' counsel as to his clients' rights. In the first part of the conversation he agreed with the judge that he could not blow hot and cold on the issue of abandoning the jury, but he did not concede to a waiver of the jury on that day, August 7, because his subsequent comments disclaim such a waiver. He asked the court, ‘. . . are you indicating that I have waived forever at this point . . .?’ The court answered in the affirmative and than said, ‘Is there anything else to be implied from anything you have said?’ to which Mr. Berman replied, ‘Only that I would discuss the matter once again with my clients because there has been a change in the conduct of the case.’ Our interpretation of this exchange is to refer the reader to our earlier statement of the law in this opinion which said that a jury cannot be waived by implication. (Hayden v. Friedman, supra, 190 Cal.App.2d 409, 411, 112 Cal.Rptr. 17.) To say plaintiffs waived the jury, based upon the above conversation, would be tantamount to our holding that a waiver did occur by implication.

Defendants-respondents argue that Mr. Berman's final statement in the reported colloquy concedes that he waived the jury. We de not agree. The court said: ‘. . . if you have waived by failing to post fees, that is a final act on the plaintiffs' part. That is as final as the law makes it out and you can't later come into the case and say: Now I want a jury; now I don't . . . You have done it. I don't approve of the way this thing has been handled up to this point for only the reasons indicated . . . I am about to call the jury in . . . Any legal objection to the contemplated action?’ Mr. Berman responded: ‘I don't know that I have a basis at this point or would even contemplate a basis for any objection. I just didn't, I just don't feel that it is a fair inference being made toward the conduct of plaintiffs' counsel and I just want the record do show that both defense counsel, including the——’

As we interpret the above exchange, the judge was saying, in effect, that Mr. Berman's conduct in failing to post the jury fees had caused the waiver. When asked if he had any legal objection to the judge's contemplated action, Mr Berman's response simply indicated uncertainty as to the basis for any objection, and that he didn't feel a fair inference was being made as to his conduct. This is not an admission that he was finally acquiescing to the jury waiver on behalf of his clients. Also, if in fact he was unsure of the judge's interpretation of the law, this statement does not add up to an express waiver of the jury.

The judgment is reversed and the case is remanded for a new trial.

FOOTNOTES

1.  Defendants-respondents are Union Pacific Railroad Corporation, Southern Pacific Company, Harbor Belt Line Railroad, and the City of Los Angeles.

2.  Under the circumstances of this case we disagree. The judge had clearly stated that plaintiffs had waived their right to a jury. We do not believe counsel is required to show his disagreement with the judge by writing a check and handing it to the clerk. Here it clearly would have been an idle act that would not have endeared him to the judge who is trying the case. (See Robinson v. Puls, 28 Cal.2d 664, 667, 171 P.2d 430.)

FN3. In Cowlin v. Pringle, 46 Cal.App.2d 472, 116 P.2d 109, plaintiff sued for injuries arising out of an automobile accident. Plaintiff demanded a jury trial by memorandum but did not deposit fees in advance of the trial; however, one of the defendants deposited the first day's jury fees and paid the requisite fees for the second day. Nonsuits were granted as to all defendants except one. Plaintiff then posted the fees for the third day and requested the matter continue as a jury trial. After the remaining defendant rested his case, he stated that he desired a court trial and moved the court for a dismissal of the jury. The motion was granted on the basis that plaintiff had failed to post fees for the first and second day and had thereby ‘waived’ her right to a jury trial. On appeal the court held that by accepting the third day's fees plaintiff and ordering the trial to continue as a jury trial, plaintiff was relived of any waiver upon her part of a jury trial, and that plaintiff had been relieved of paying the fees when the defendant assumed them..  FN3. In Cowlin v. Pringle, 46 Cal.App.2d 472, 116 P.2d 109, plaintiff sued for injuries arising out of an automobile accident. Plaintiff demanded a jury trial by memorandum but did not deposit fees in advance of the trial; however, one of the defendants deposited the first day's jury fees and paid the requisite fees for the second day. Nonsuits were granted as to all defendants except one. Plaintiff then posted the fees for the third day and requested the matter continue as a jury trial. After the remaining defendant rested his case, he stated that he desired a court trial and moved the court for a dismissal of the jury. The motion was granted on the basis that plaintiff had failed to post fees for the first and second day and had thereby ‘waived’ her right to a jury trial. On appeal the court held that by accepting the third day's fees plaintiff and ordering the trial to continue as a jury trial, plaintiff was relived of any waiver upon her part of a jury trial, and that plaintiff had been relieved of paying the fees when the defendant assumed them.

FN4. In DeCastro v. Rowe, 223 Cal.App.2d 547, 36 Cal.Rptr. 53, plaintiffs failed to demand a jury in the memorandum to set and failed to appear at the pretrial conference and failed to deposit fees prior to commencement of the trial. Defendants, however, had demanded a jury and deposited jury fees. Before trial defendant waived the jury and advised the clerk. On the morning of trial, plaintiff demanded a jury. The trial court ruled that plaintiffs had waived the jury by failing to deposit the jury fees 14 days prior to the date set for trial. On appeal, the court held that since the defendants had paid for the necessary fees, there was no reason for the plaintiff to tender another jury fee for the first day of trial since ‘[t]he law neither does nor requires idle acts.’.  FN4. In DeCastro v. Rowe, 223 Cal.App.2d 547, 36 Cal.Rptr. 53, plaintiffs failed to demand a jury in the memorandum to set and failed to appear at the pretrial conference and failed to deposit fees prior to commencement of the trial. Defendants, however, had demanded a jury and deposited jury fees. Before trial defendant waived the jury and advised the clerk. On the morning of trial, plaintiff demanded a jury. The trial court ruled that plaintiffs had waived the jury by failing to deposit the jury fees 14 days prior to the date set for trial. On appeal, the court held that since the defendants had paid for the necessary fees, there was no reason for the plaintiff to tender another jury fee for the first day of trial since ‘[t]he law neither does nor requires idle acts.’

FN5. In Hernandez v. Wilson, 193 Cal.App.2d 615, 14 Cal.Rptr. 585, plaintiff posted the first day's jury fees and after a jury was selected, she decided to waive the jury, whereupon defendant assumed the costs. On the fourth day of trial defendant waived the jury. The trial court, concluding that plaintiff had already waived the jury on the first day of trial, refused plaintiff a further trial by jury, saying, ‘. . . once a jury or the jury obligation has been waived, such waiver may not be reinstated.’ The trial court then dismissed the jury. Upon plaintiff's motion for new trial, the trial judge concluded that it had made an error in law and granted a new trial. The appellate court, in upholding the granting of a new trial, stated: ‘The fact that upon the hearing on the motion for new trial the trial judge stated his opinion as to the evidence adduced at the trial cannot alter the fact that the judge misapprehended his duty and power at the time the jury was dismissed. His remarks at that time affirmatively show that he did not then deem a motion to be relieved of a waiver of the right to jury trial to be one requiring exercise of discretion. With commendable frankness he later took proper action by granting the motion for new trial.’ (Id. at p. 619, 14 Cal.Rptr. at p. 588.).  FN5. In Hernandez v. Wilson, 193 Cal.App.2d 615, 14 Cal.Rptr. 585, plaintiff posted the first day's jury fees and after a jury was selected, she decided to waive the jury, whereupon defendant assumed the costs. On the fourth day of trial defendant waived the jury. The trial court, concluding that plaintiff had already waived the jury on the first day of trial, refused plaintiff a further trial by jury, saying, ‘. . . once a jury or the jury obligation has been waived, such waiver may not be reinstated.’ The trial court then dismissed the jury. Upon plaintiff's motion for new trial, the trial judge concluded that it had made an error in law and granted a new trial. The appellate court, in upholding the granting of a new trial, stated: ‘The fact that upon the hearing on the motion for new trial the trial judge stated his opinion as to the evidence adduced at the trial cannot alter the fact that the judge misapprehended his duty and power at the time the jury was dismissed. His remarks at that time affirmatively show that he did not then deem a motion to be relieved of a waiver of the right to jury trial to be one requiring exercise of discretion. With commendable frankness he later took proper action by granting the motion for new trial.’ (Id. at p. 619, 14 Cal.Rptr. at p. 588.)

6.  There is abundant decisional and statutory law that once a jury has been waived that it is left to the discretion of the judge as to whether the case can be reinstated as a jury trial. But this refers only to a waiver made in some form or another by all the parties. (Code Civ.Proc., § 631, subds. 4, 8.)

HASTINGS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.