Kollert

Plaintiffs have appealed from a judgment for defendants, contending that the court erred in instructing the jury and in refusing to consider affidavits of jurors offered in support of a motion for new trial to prove misconduct of the jury.

The plaintiffs, Mrs. Kollert, Mrs. Abrahamson, and four children, were riding in a car which Mrs. Kollert was driving *770 when it collided with one operated by defendant Cundiff who was then acting in the course of his employment by defendant The Termo Company. Mrs. Abrahamson, who is Mrs. KoIIert’s mother, was riding in the front seat with her. Four children, Steven and Michael Kollert and Mary and Marlene Cleveland, were riding in the back seat of the car.

The accident occurred in Long Beach at the intersection of Carson Avenue and Paramount Boulevard, where traffic is controlled by electrically operated signals. Mrs. Kollert was driving west on Carson in the lane nearest the center line, and, as she approached the intersection, there was no car in front of her in that lane. She testified that the signal light on Carson turned from red to green when she was half a block from the intersection, that she was driving about 20 miles an hour and…

I agree with the reasons given by the majority for reversing the judgment against Mrs. Abrahamson, but I can no longer assent to the dogma, so long parroted, -that a juror’s affidavit cannot be used to impeach his verdict.

The common formula that “a juror’s testimony or affidavit is not receivable to impeach his own verdict is not correct as a statement of existing law, nor is it maintainable on any principle in this unqualified form.” “It is a mere shibboleth and has no intrinsic signification whatever.” (8 Wigmore on Evidence, Privileged Communications, § 2345, p. 663.) Notwithstanding Wigmore’s acute analysis disapproving the form in which the rule exists and the automatic application of it by the courts (8 Wigmore on Evidence, Privileged Communications, §§2345-2356), the practice in both aspects, unfortunately, remains unchanged. This persistence may, per *775 haps, be attributed to the one great difficulty with a rule that may be stated clearly and simply. When such a rule is completed and rounded, the corners smoothed and the content cohesive and coherent, it is likely to become a thing in itself, a work of art. It is then like a finely engineered bridge or a completed…

Plaintiffs have appealed from a judgment for defendants, contending that the court erred in instructing the jury and in refusing to consider affidavits of jurors offered in support of a motion for new trial to prove misconduct of the jury.

The plaintiffs, Mrs. Kollert, Mrs. Abrahamson, and four children, were riding in a car which Mrs. Kollert was driving when it collided with one operated by defendant Cundiff who was then acting in the course of his employment by defendant The Termo Company. Mrs. Abrahamson, who is Mrs. Kollert's mother, was riding in the front seat with her. Four children, Steven and Michael Kollert and Mary and Marlene Cleveland, were riding in the back seat of the car.

The accident occurred in Long Beach at the intersection of Carson Avenue and Paramount Boulevard, where traffic is controlled by electrically operated signals. Mrs. Kollert was driving west on Carson in the lane nearest the center line, and, as she approached the intersection, there was no car in front of her in that lane. She testified that the signal light on Carson turned from red to green when she was half a block from the intersection, that she was driving about 20 miles an…