Borns

This is an appeal from a judgment entered in favor of plaintiff and respondent, Theodore John Borns, against defendant and; appellant, Barbara Ann Butts, upon a complaint for damages sustained in a collision between respondent’s motorcycle and appellant’s automobile. ,,

The jury below returned four verdicts:

When the jury was polled, it was discovered that only seven of the jurors had voted for all four verdicts. Appellant thereupon moved for a mistrial, but after hearing argument, the court declined to declare a mistrial or to have the jury return for further deliberations. By entering a verdict when the same nine jurors had not agreed on each special verdict, the court erred. (Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 182-186 [196 P.57]; Schoenbach v. Key System Transit Lines (1959) 168 Cal.App.2d 302, 305 [ 335 P.2d 725 ]; Nelson v. Superior Court (1938) 26 Cal.App.2d 119, 120-122 [ 78 P.2d 1037 ].)

Respondent’s contention that the error was harmless in light of the juror’s voting pattern is rejected for two reasons. First, no “legal verdict” existed below; thus, prejudice is inherent in the entry of an invalid verdict and judgment. (See Schoenbach v. Key System…