Wagner v. Doulton

[947]

Opinion

HASTINGS, J.

Daniel Wagner brought a personal injury action against Irene Doulton and Nemos Secret Harbor Development for personal injuries sustained in a collision between his motorcycle and defendants’ automobile on Pacific Coast Highway. After a trial which lasted over a month the jury returned a verdict in favor of defendants.

Appellant Wagner moved for a new trial on the grounds, inter alia, of jury misconduct. His motion was denied. Although numerous grounds were raised below, appellant has limited this appeal to the alleged misconduct of one juror.

In support of the motion for a new trial, two jurors presented affidavits to the trial court alleging that another juror, Edwin Johnston, an engineer, had prepared a scale map of the location of the accident and the vehicles involved and brought it into the jury room. The map was drawn on either plain or graph paper and was shown to the other jurors.

Edwin Johnston also submitted his affidavit, dated December 19, 1979, which declared in part: “That while deliberating on the

Wagner vs Doulton

case, I prepared a diagram of the Malibu accident location from and only from information that was presented in court. No independent investigation was made by me, and I had never visited the actual accident scene or received any information other than that which was presented in court. [1i] That all of the information that was used for the diagram that I prepared during the deliberations was taken from my notes made from the testimony in court or from my memory of the evidence that was presented in court.”

At the hearing for the motion for a new trial, the court noted that Mr. Johnston’s affidavit did not clearly deny that the map he prepared was drawn outside the jury room.

“The Court: I do see a problem in bringing a map into that jury room. [H] As I analyze it, it would have to be something prepared at home, not in the jury room. [11] Now, I know your position is he did it in the jury room. This is not the way I read the affidavit. It is on drafted paper, drawn to scale and brought in.”