Borns v. Butts

Opinion

ROUSE, J.

This is an appeal from a judgment entered in favor of plaintiff and respondent, Theodore John Borns, against defendant and; appellant, Barbara Ann Butts, upon a complaint for damages sustained in a collision between respondent’s motorcycle and appellant’s automobile. ,,

The jury below returned four verdicts:

1. By a vote of nine-three it found that appellant was negligent and that the negligence proximately caused respondent’s injury;

2. By a vote of twelve-zero it found that respondent suffered-$20,019 in damages; ¡

[210]

3. By a vote of nine-three it found that respondent was negligent and that the negligence proximately caused the injury;

4. By a vote of nine-three it attributed 10 percent of the negligence causing the accident to respondent, and 90 percent to appellant.

When the jury was polled, it was discovered that only seven of the jurors had voted for all four verdicts. Appellant thereupon moved for a mistrial, but after hearing argument, the court declined to declare a mistrial or to have the jury return for further deliberations. By entering a verdict when the same nine jurors had not agreed on each special verdict, the court erred.

(Earl

v.

Times-Mirror Co.

(1921) 185 Cal. 165, 182-186 [196 P.57];

Schoenbach

v.

Key System Transit Lines

(1959) 168 Cal.App.2d 302, 305 [335 P.2d 725];

Nelson

v.

Superior Court

(1938) 26 Cal.App.2d 119, 120-122 [78 P.2d 1037].)