Pollock v. Standard Oil Co.

DRAPER, P. J.

Can a court, after denying motion for new trial but within the period allowed for passing upon that motion, vacate the denial on a motion under

Code of Civil Procedure, section 473?

That is our question.

Although distracting, chronology seems required. In this action for personal injuries, the jury returned a verdict for plaintiff by 9 to 3 vote, with juror Burns voting with the majority. Judgment was entered June 10, 1965, and notice of entry was served on defendant June 11. Defendant’s notice of intention to move for new trial was served and filed June 21. Irregularity in proceedings of the jury was a stated ground, but no affidavit supporting it was filed. Motion for new trial was denied July 9. On July 12, juror Burns telephoned the trial judge and said that she had, on her

voir dire

examination, concealed a bias for the plaintiff. The judge met with both counsel the next day, and advised them of Mrs. Burns ’ communication to him. On July 21 defendant filed and served a motion under

section 473

to vacate the order denying new trial. Affidavits detailing due diligence were filed. The motion also was accompanied by affidavits of defense counsel and an investigator that they had interviewed Mrs. Burns July 13, and that she had said to them that at the time of

voir dire

she had concealed a bias in favor of the plaintiff which stemmed from the fact of a comparable injury some years ago to her

[309]

father, with whom she tended to identify plaintiff herein. They also averred that Mrs. Burns had been hospitalized, and therefore was unavailable to execute her own affidavit. On July 30, a supporting declaration by Mrs. Burns, who had left the hospital that day, was filed. The motion was heard August 9. The next day the court granted the motion to vacate the order denying new trial and to vacate the judgment. Plaintiff appeals.

The rule is clear that a juror’s intentional concealment, on