Norland v. Gould

[707]

LANGDON, J.

This is an appeal by the plaintiff from a judgment against him in an action brought to recover damages for personal injuries sustained by plaintiff Daniel Norland when he was a minor of the age of ten years. The action was brought by plaintiff by his duly appointed guardian

ad litem

against the Excelsior Creamery Company, the owner of an automobile truck which injured plaintiff, and George B. Gould, the driver of said truck at the time of the accident.

The plaintiff was injured while attempting to board the automobile truck, which was loaded with hay and was traveling slowly along the highway. Plaintiff’s cause of action is based upon the alleged wilful and wanton negligence of the defendant Gould in omitting to use due care to avoid the injury to plaintiff. '

When the cause came on for trial, the record shows that the attorney for plaintiff said: “What do I understand about the jury this morning?” to which the court replied: “Why, I understand the rule was not complied with and the money was not put up for this jury and therefore the jury was waived.” Counsel attempted to persuade the court to grant a continuance and permit a jury trial, despite the asserted waiver, and the court refused to do so. There is nothing in the record which shows compliance by plaintiff with the following rule of court, which was read into the record: “In any case, other than a criminal case, the party desiring a trial by jury must, at least ten days before the day set for trial, or if the order setting the case for trial is made less than ten days before the time fixed for trial, then at the time such order is made, deposit with the clerk the sum of twenty-four dollars for the payment of jury fees. If such sum is not so deposited a trial by jury shall be deemed waived and the court will proceed to trial without a jury.”

Section 129 of the Code of Civil Procedure provides: “Every court of record may make rules not inconsistent with the laws of this state, for its own government of its officers. ...” The law of the state is: “A trial' by jury may be waived ... in civil actions by the consent of the parties, signified in such manner as may be prescribed by law.” (Art. I, sec. 7, Cal. Const.)