# Hart v. Wielt

> California Court of Appeal · February 6, 1970 · 4 Cal. App. 3d 224

URL: https://www.frixlaw.com/law-library/cases/9730048

## Case

- **Full name:** MARGARET A. HART, Plaintiff and Respondent, v. WILLARD WIELT Et Al., Defendants and Appellants
- **Court:** California Court of Appeal
- **Decided:** February 6, 1970
- **Citations:** 4 Cal. App. 3d 224; 84 Cal. Rptr. 220; 1970 Cal. App. LEXIS 1520
- **Precedential status:** Published
- **Opinion:** Dissent by Friedman
- **Judges:** Regan, Friedman
- **Cited by:** 18 later opinions in the Frix Law Library

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## Opinion text

FRIEDMAN, Acting P. J.
I dissent. A trial is an entity. The cumulative effect of a group of improprieties cannot be assessed by measuring the quantum of prejudice attributable to each separate one. In weighing a compound of misconduct, “[e]ach case must ultimately rest upon a court’s view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.” (Sabella v. Southern Pac. Co., 70 Cal.2d 311, 320 [ 74 Cal.Rptr. 534 , 449 P.2d 750 ].)
It is impossible to read the present record without inferring a deliberate program of plaintiff’s attorney to brainwash the jury into a verdict motivated by awareness that Mr. and Mrs. Wielt were only nominal defendants, who had invited plaintiff (their long-time friend) to collect from State Farm Mutual Insurance Company, the real defendant, an award which would take her off the charity rolls and off the backs of the taxpayers (such as the jurors).
This program had its inception in the voir dire question inquiring into the panel members’ interest in the insurance company. Viewed in isolation, that question was innocuous, permissible if asked “in good faith.” (2 Witkin, Cal. Procedure (1954) p. 1738.) Viewed as the first step in a sequence, it takes on harsher coloration. Not knowing what was to follow, defense counsel could not be expected to object to this unobjectionable voir dire inquiry.
The second step was Mrs. Hart’s gratuitous pair of references to State Farm. These nonresponsive references may have been unexpected and, in *237 fairness to plaintiff’s attorney, we should not assume that they were the product of coaching. However produced, they did contribute to the result.
Third was the grossly irrelevant, grossly improper, question which elicited the response that Mrs. Wielt had advised plaintiff to file the lawsuit. This question and its answer were so utterly and blatantly illicit that no innocent motive can be ascribed to them.
Fourth was the cross-examination of the defense investigator, through which the jury was told that defense counsel, Mr. Hogan Matthews, was really in court as the attorney for the insurance company. The question cannot be justified as an inquiry into bias, for the investigator’s former employment by the insurance company had nothing to do with Mr. Matthews’ status as its attorney.
Fifth was the blatantly impermissible appeal to the jury to award damages in order to take Mrs. Hart off charity and off the backs of the taxpayers. No express appeal was needed to have the jurors identify themselves as taxpayers. They would do that of their own accord.
California courts do not indulge in the naive assumption that uncolored awareness of insurance coverage will lead the jurors into an excessive verdict. (Causey v. Cornelius, 164 Cal.App.2d 269, 276-280 [ 330 P.2d 468 ].) The vice of the present trial is the plaintiff’s attempt to supplant legitimate decisional norms with a set of illegitimate jury motivations, that is, an emotional bias compounded out of sympathy for the destitute plaintiff, indifference to the acquiescent and even friendly defendants and awareness of the big, rich, impersonal target which would bear the cost.
For all that any of us judges know, the attempt may have been successful. I have trouble with the notion that the appellate court should accept the trial court’s determination of misconduct’s effect unless it is “plainly wrong.” (See Sabella v. Southern Pac. Co., supra, 70 Cal.App.2d at p. 317, fn. 5.) The determination is too subjective, involving variables of tolerance. Moreover, trial judges have no more access to jury room dialogues than do appellate judges.
There were enough objections and requests for admonition to demonstrate that defense counsel was not indulging in silence for the purpose of gambling on the verdict. (Cf. Sabella v. Southern Pac. Co., supra, 70 Cal.App.2d at pp. 318-319; Horn v. Atchison T. & S. F. Ry. Co., 61 Cal.2d 602, 610 [ 39 Cal.Rptr. 721 , 394 P.2d 561 ].) The cumulative prejudice from the combination of improprieties was such that no admoni *238 tion could cure it. (Hoffman v. Brandt, 65 Cal.2d 549, 553 [ 55 Cal.Rptr. 417 , 421 P.2d 425 ].)
In our exalted moments we of the bench and bar are wont to describe a trial as a “search for truth.” Forensic hijinks such as the present make a mockery of that description. The financial stakes in personal injury trials are high. The participants are engaged in relentless struggle. Appellate wrist-slappings are not going to stop the unseemly stagecraft which characterizes many jury trials. Seen in the perspective of social history, the personal injury settlement-and-trial industry may be an expensive anachronism whose overhead society can ill afford. Even within the existing rules of the game, judges and lawyers should not forget the judgments of history.
I agree that we must not deprive litigants of favorable verdicts in order to punish counsel. (Sabella v. Southern Pac. Co., supra, 70 Cal.2d at pp. 320-321.) I am conscious too that article VI, section 13, of the California Constitution permits reversal only where justice has miscarried. (Garden Grove School Dist. v. Hendler, 63 Cal.2d 141, 144 [ 45 Cal.Rptr. 313 , 403 P.2d 721 ].)
In criminal cases it is recognized that a judgment reached through an unfair trial is a denial of due process, which cannot be shielded by article VI, section 13. (People v. Lyons, 47 Cal.2d 311, 324 [ 303 P.2d 329 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ].) Since the concept of due process applies to property as well as life and liberty, I see no reason why this salutary concept of appellate control cannot hold sway as a means of ordering retrials in unfairly tried civil cases. I would reverse.
A petition for a rehearing was denied March 2, 1970. Friedman, J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied April 1, 1970.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730048. Public record. Not legal advice.