Wagner

Daniel Wagner brought a personal injury action against Irene Doulton and Nemos Secret Harbor Development for personal injuries sustained in a collision between his motorcycle and defendants’ automobile on Pacific Coast Highway. After a trial which lasted over a month the jury returned a verdict in favor of defendants.

Appellant Wagner moved for a new trial on the grounds, inter alia, of jury misconduct. His motion was denied. Although numerous grounds were raised below, appellant has limited this appeal to the alleged misconduct of one juror.

In support of the motion for a new trial, two jurors presented affidavits to the trial court alleging that another juror, Edwin Johnston, an engineer, had prepared a scale map of the location of the accident and the vehicles involved and brought it into the jury room. The map was drawn on either plain or graph paper and was shown to the other jurors.

Edwin Johnston also submitted his affidavit, dated December 19, 1979, which declared in part: “That while deliberating on the Wagner vs Doulton case, I prepared a diagram of the Malibu accident location from and only from information that was presented in court. No independent…