Boyce v. California Stage Company.

does not depend on computation, the judgment of the jury, and not the opinion of the Court, is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. In the present case, the plaintiff was exposed to the imminent peril of his life, to great bodily and mental suffering, and we cannot say that the sum assessed by the jury exceeds a reasonable compensation. We do not consider whether or not we should have assessed the same amount of damages, if the case had been submitted to the Court to decide; for, in a case like the present, men of sound judgment may differ not a little in estimating the compensation which the circumstances of the injury would justify; and it is the judgment of the jury, and not that of the Court, which must govern. To justify the interposition of the Court, the damages must be manifestly exorbitant."

We see nothing in this case to warrant the belief that the verdict is the fruit of passion or prejudice. (Aldrich v. Palmer, 24 Cal. 513.)

Judgment affirmed.

By the Court, SANDERSON, C. J., on petition for rehearing.

We are asked to grant a rehearing in this case upon two grounds: First-Because we have erred in holding that at common law the verdict in this case cannot be impeached by the affidavits of the jurors; and Second-Because we have erred in holding that the verdict is not a chance verdict within the meaning of the second subdivision of the one hundred and ninety-third section of the Practice Act. In respect to these points this case was decided upon the authority of Turner & Platt v. The Tuolumne Water & Mining Company, 25 Cal. 397. We there held that, although there was some conflict of authority, the better rule was that, at common law, the affidavits of jurors could not be received for the purpose of impeaching their vrdict. By so doing we did not establish the rule for

Boyce v. California Stage Company.

the first time in this State; on the contrary, we merely affirmed a rule which was established as early as the first volume of California Reports and has been strictly adhered to from that time to the present. In the case of The People v. Baker, 1 Cal. 405, Mr. Justice Bennett said: "We consider it a settled rule, founded upon considerations of necessary policy, that the testimony of a juryman cannot be received to defeat his own verdict." In Amsby v. Dickhouse, 4 Cal. 103, Mr. Chief Justice Murray said: "It is well settled that a juror cannot be allowed to impeach his own verdict. The reason of this wholesome rule of law is too obvious to require any explanation." The same rule was declared in Castro v. Gill, 5 Cal. 42, by Mr. Justice Heydenfeldt. In Wilson v. Berryman, 5 Cal. 45, the rule was again reiterated by Mr. Chief Justice Murray. In The People v. Wyman, 15 Cal. 75, the verdict was sought to be impeached upon the ground that it was not a fair expression of the opinion of the jury, and the affidavit of one of the jurors was relied on for that purpose. The opinion of the Court was delivered by Mr. Justice Cope, who said: "We have repeatedly decided that this cannot be done." Thus the law of this question had become too firmly established in this State to be disturbed by the judiciary, and in order to effect a change it was found necessary in 1862 to resort to legislative action. This was done, and it was enacted that verdicts found by a "resort to the determination of chance" might be impeached by the affidavits of the jurors. (Stats. 1862, 38.) But it is argued that while such is the general rule at common law, there are exceptions to it. Admitting this to be so, we answer, in the first place, that the Legislature of this State has legislated in regard to those exceptions, and that such legislation has superseded the common law. By declaring in what cases verdicts may be impeached by the affidavits of jurors, the Legislature, upon the maxim, expressio unius, exclusio alterius est, has declared that verdicts of a different class shall not be so impeached. And we answer in the second place, if such exceptions exist, this verdict, viewed by the light of the common law as heretofore declared in this State, does not fall within the

Boyce v. California Stage Company.

exception. In Wilson v. Berryman, before cited, the verdict was found by the same process as in the present case. The facts were brought to the notice of the Court by an affidavit which was sworn to by one of the jurors and also by the Sheriff. The Court expressly held that the affidavit, so far as it was the affidavit of the juror, could not be received to impeach the verdict. Thus, however it may have been elsewhere before the decision of the present case, in this State it had been judicially determined that verdicts like the present did not fall within any supposed exception, but were within the general rule of the common law.

As stated in our opinion in Turner & Platt v. The Tuolumne Water and Mining Company, the authorities elsewhere are conflicting. We do not attempt to reconcile them; to do so would be impossible. We ground the rule upon the decisions and the legislation of this State, and we declare the law to be in this State, however it may be elsewhere, to the effect that the affidavits of jurors cannot be received in any case to impeach their verdict, except as provided in the second subdivision of the one hundred and ninety-third section of the Practice Act. And in conclusion upon this branch of the case, we may add that a line of judicial decision which struggles to multiply exceptions to a plain and simple rule, founded on considerations of the wisest policy, is not to be favored; on the contrary, the struggle should be to bring every case within the rule, lest the rule itself become shadowy, and in time wholly disappear in a multitude of exceptions.

Upon the point as to whether the verdict in this case is a chance verdict within the meaning of the one hundred and ninety-third section of the Practice Act, as amended in eighteen hundred and sixty-two, our opinion remains unchanged. In addition to what is said upon this point in our opinion in Turner & Platt v. The Tuolumne Water and Mining Company, (ante, p. 397,) reference may be made to the history of the amenàment of eighteen hundred and sixty-two, for the purpose of ascertaining what the evil was which the Legislature had in view, and for which they sought to provide a remedy.

Boyce v. California Stage Company.

On the 1st of March, 1862, a judgment was rendered, upon the verdict of a jury, in the Twelfth District Court, in the case of Donner v. Palmer. (The case is reported in 23d Cal., at page 40.) For the purpose of showing how the verdict in that case was found, we make the following extract from the opinion of the Court delivered by Mr. Justice Crocker: "The affidavit of one of the jurors, Day, after stating generally what occurred in the jury room in the way of discussion and votes, states that after a time a vote unanimous for the plaintiff was taken, but immediately thereafter Hiller and Fortune, who are charged with the misconduct, recanted and said their vote was not according to their convictions; and soon after the affiant saw Fortune approach Hiller, and heard him propose to the latter that he would place a piece of money and the latter should guess heads or tails, and if he guessed right then their verdict should be for the plaintiff; that Hiller assented; that Fortune then placed a piece of money and covered it so that the former could not see it; he guessed, and they announced that he had guessed right, and they thereupon agreed to a verdict for the plaintiff, but both said it was still trary to their convictions."

Here was a clear case of chance, without any proof of the fact except by the affidavits of the jurors. Under the law as it then stood these affidavits could not be received. The Legislature was in session at San Francisco, where the case was tried. The verdict was rendered on the first of March. On the fifth of the same month the bill amending the one hundred and ninety-third section of the Practice Act so as to allow verdicts to be impeached by the affidavits of jurors, on the ground of chance, was signed by the Governor, and became a part of the law of the land. Thus, aside from the mere wording of the law, the intent of the Legislature is made clear by a legitimate reference to the facts and circumstances which led to the passage of the Act. The Act was made broad enough to cover the case then in the mind of the Legislature and others like it. In our judgment the verdict in this case is not like it. Some cases are cited by counsel where the

Hutton v. Reed et als.

Court, in commenting upon verdicts like this, loosely employ the words "chance" and "hazard," but the precise question, to wit: whether such a verdict is a chance verdict, which is here directly presented, was not involved, the question there being whether such a verdict was good or bad. On the contrary the cases cited in our former opinion, and upon which it is based so far as authority is concerned, show that the precise question which we have considered was there considered and passed upon. Counsel has filed an able argument in support of his petition, but we find therein no reason for a change of opinion.

Rehearing denied.

BENJAMIN H. HUTTON v. JOSEPH L. REED, HENRY STEIL, AND CHARLES F. WEHN.

ASSIGNMENT OF ERRORS.-An assignment of errors at common law was in the nature of a pleading, to which there was a demurrer or joinder in error. It did not constitute a part of the transcript, but was founded on it, and was filed in the appellate Court after the transcript had been filed.

SAME. The term assignment of errors is not used in our Practice Act, nor is it known in our practice in its common law sense. APPEAL ON JUDGMENT ROLL- When an appeal is taken on the judgment roll alone, and no statement is made, a specification of grounds of error is not required to be inserted in the transcript. But when the Court comes to examine the case, and no brief or statement of points and authority has been furnished by the appellant, as required by Rule XVII, the judgment will be affirmed without examination.

STATEMENT ON APPEAL. A general specification in the statement of grounds of error relied on, such as insufficiency of the evidence to justify the verdict, the verdict and judgment are against law, or error in law occurring at the trial, is not sufficient; but the statement should specify the particular grounds of error relied on; and annexed to the statement of the grounds of error relied on by the appellant should be so much of the evidence as may be necessary to explain the points specified, and no more. STATEMENT NOT SPECIFYING ERRORS RELIED ON.-A specification of the particular grounds of error is the essential element of a statement; the evidence is the mere incident. On appeal from the judgment, if the transcript contains a paper purporting to be a statement, which does not distinctly specify the grounds of error relied on, and objection to its insufficiency in this respect to constitute a statement is made at the proper time, such paper will be disregarded, and only such errors as are disclosed by the Judgment roll will be considered.

STATEMENT ON MOTION FOR NEW TRIAL.-When the appeal is from an order