Gordon v. Perkins

KERRIGAN, J.

This is an appeal from a judgment against defendants in an action wherein plaintiff sought to recover damages for injuries to certain real property committed by the defendants.

Such of the facts as are necessary to an understanding of the points herein discussed will be stated in the course of the opinion.

In his brief the plaintiff makes a preliminary motion to dismiss the appeal upon the ground that the notice to the clerk to prepare the transcript on appeal was not given within the time specified in section 953a of the Code of Civil Procedure after notice of the entry of -judgment. As to that motion the conclusion we have reached on the merits of the appeal renders unnecessary a consideration of that question.

The first point presented for a reversal of the judgment is that the trial court erred in denying the motion for a new trial made on the ground of the misconduct of the jury, the defendants claiming that the jury determined the amount of its verdict by a resort to chance.

According to the affidavits filed by the defendants on said motion, the verdict of the jury was reached by each juror specifying a sum to which he believed the plaintiff entitled (a maximum of one thousand dollars having first been agreed upon), dividing the aggregate of the figures thus obtained by 12, and adopting the quotient as the amount of the verdict. Assuming that a verdict reached in this manner is one found by chance, and will be set aside

(Dixon

v.

Pluns,

98 Cal. 384,

[92]

[35 Am. St. Rep. 180, 20 L. R. A. 698, 33 Pac. 268];

People

v.

Richards,

1 Cal. App. 566, [82 Pac. 691]), still in the present case, according to the affidavits filed by the plaintiff on the motion, it appears that after the amount of the proposed verdict was ascertained in the manner stated, the jurors deliberated and consulted among themselves, and as a result of such subsequent deliberation decided, independent of the agreement that had been made concerning the manner of reaching the verdict, that the sum so ascertained represented in their opinion the amount of damages to which the plaintiff was in fact entitled. The record therefore presents a conflict of evidence on the question of whether the verdict was determined by a resort to chance; and the court having found on such conflict in favor of the plaintiff, the action of the court will not be disturbed on appeal