Johnson v. Gray

ROTH, J.,

pro tem.

This is an appeal from an order granting a motion for new trial, the motion having been made on all statutory grounds.

The minute entry of the order appealed from reads: “Plaintiff’s motion for a new trial having been heretofore heard and submitted, it is now ordered that the said motion for new trial be granted on affidavit filed of Mrs. H. Ballou, Jury Foreman.”

It has long been settled in this state that the affidavit or affidavits of a member or members of a trial jury cannot be used to impeach the verdict of the jury.

(Saltzman

v.

Sunset Tel. etc. Co.,

125 Cal. 501 [58 Pac. 169].) The only exception to this rule is that provided by statute applicable to a situation where the verdict of the jury has been left for determination to chance. (Subd. 2, sec. 657, Code Civ. Proc.) Nothing in the affidavit referred to indicates or suggests that there was any resort to chance by the jury or any members thereof.

Further, it has been consistently held that, unless the order granting a motion for new trial specifies insufficiency of the evidence as one of the grounds upon which it is based, it will be presumed on appeal that it was not based upon insufficiency of the evidence. (Subd. 7, sec. 657, Code Civ. Proc.;

San Francisco

v.

Tillman Estate Co.,

205 Cal. 651 [272 Pac. 585].)

[74]

Respondent concedes these rules. No contention is made that the verdict in the instant case was left for determination to some game of chance. Respondent’s sole point is that the order means that the retrial was granted on the ground that the verdict is against the law. It is significant, however, that the respondent

points out no error of law.