Delzell v. Day, 223 P.2d 625 (Cal. 1950). · Go Syfert
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Delzell v. Day, 223 P.2d 625 (Cal. 1950). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1953 · …a different verdict would not have been improbable at p. 351 ≈ altered
cited 2× by 2 distinct cases · …considering the entire record, it cannot reasonably be said that their cumulative effect did not prejudice the appellants' case at p. 351 ✓
43 citation events (15 in the last 25 years) across 4 distinct courts.
Strongest positive: Ross v. County of Madera CA5 (calctapp, 2022-02-22)
Treatment trajectory · 1951 → 2026 · click a year to view as-of
1951 1988 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Ross v. County of Madera CA5
Cal. Ct. App. · 2022 · confidence medium
(Delzell v. Day (1950) 36 Cal.2d 349, 351 [while numerous improper comments by the trial judge did not justify reversal of the judgment when taken separately, “considering the entire record, it cannot reasonably be said that their cumulative effect did not prejudice the appellants’ case”]; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 180 [concluding prejudice was apparent from the cumulative errors].) For example, the doctrine applies when there are numerous minor instances of attorney misconduct during trial that have a cumulatively prejudicial effect.
discussed Cited as authority (rule) Ross v. County of Madera CA5
Cal. Ct. App. · 2022 · confidence medium
(Delzell v. Day (1950) 36 Cal.2d 349, 351 [while numerous improper comments by the trial judge did not justify reversal of the judgment when taken separately, “considering the entire record, it cannot reasonably be said that their cumulative effect did not prejudice the appellants’ case”]; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 180 [concluding prejudice was apparent from the cumulative errors].) For example, the doctrine applies when there are numerous minor instances of attorney misconduct during trial that have a cumulatively prejudicial effect.
discussed Cited as authority (rule) Diaz v. Los Angeles County MTA CA2/7
Cal. Ct. App. · 2013 · confidence medium
(See Delzell v. Day (1950) 36 Cal.2d 349, 351-352 [reversal for judicial misconduct in civil case not required unless it is reasonable probable that there would have been a result more favorable to appellant in the absence of the asserted misconduct].) There was no dispute that Diaz‟s depression had worsened in recent years and that it, coupled with her age, had affected her ability to do many tasks, including completing several diagnostic questionnaires, one of which was the MMPI.
discussed Cited as authority (rule) People v. Slaughter
Cal. · 2002 · confidence medium
(See People v. Saunders (1993) 5 Cal.4th 580, 589-590 [ 20 Cal.Rptr.2d 638 , 853 P.2d 1093 ].) Defendant responds that no objection was required, because Code of Civil Procedure section 647 provides that “any statement or other action of the court in commenting upon or in summarizing the evidence” is “deemed to have been excepted to.” (Delzell v. Day (1950) 36 Cal.2d 349, 351 [ 223 P.2d 625 ].) Assuming, without deciding, that the issue may be raised on appeal, we conclude that the trial court’s remark did not constitute an improper comment on the evidence.
discussed Cited as authority (rule) In Re Avena (2×)
Cal. · 1996 · confidence medium
(E.g., Delzell v. Day (1950) 36 Cal.2d 349,351 [ 223 P.2d 625 ]; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 180 [ 45 Cal.Rptr.2d 48 ].) For example, the doctrine required reversal of a judgment when numerous minor instances of attorney misconduct during trial had a cumulatively prejudicial effect.
cited Cited as authority (rule) Newman v. First California Co.
Cal. Ct. App. · 1975 · confidence medium
(People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]; Delzell v. Day (1950) 36 Cal.2d 349, 352 [ 223 P.2d 625 ].) The judgment is affirmed.
cited Cited as authority (rule) Hodges v. Severns
Cal. Ct. App. · 1962 · confidence medium
We have concluded, as did the court in Delzell v. Day, 36 Cal.2d 349, 351 [ 223 P.2d 625 ], that the cumulative effect of the errors above discussed was so serious as to require a reversal.
discussed Cited as authority (rule) Crooks v. Glens Falls Indemnity Co.
Cal. Ct. App. · 1954 · confidence medium
The remarks herein did not cumulatively have the prejudicial effect for which judgment was reversed in Delzell v. Day, 36 Cal.2d 349, 351 [ 223 P.2d 625 ], a case in which objection was not made to the conduct of the judge.
examined Cited as authority (rule) Cucinella v. Weston Biscuit Co. (4×)
Cal. · 1954 · confidence medium
VT, § 4\ see, also, Loper v. Morrison (1944), 23 Cal.2d 600, 609 [ 145 P.2d 1 ] ; People v. De La Roi (1944), 23 Cal.2d. 692, 703 [ 146 P.2d 225 , 151 P.2d 837 ]; Speck v. Sarver (1942), 20 Cal.2d 585, 589 [ 128 P.2d 16 ]; People v. Honeycutt (1946), 29 Cal.2d 52, 62 [ 172 P.2d 698 ]; People v. Sanchez (1947), 30 Cal.2d 560, 575 [ 184 P.2d 673 ]; Delzell v. Day (1950), 36 Cal.2d 349, 351-352 [ 223 P.2d 625 ]; Popejoy v. Hannon (1951), 37 Cal.2d 159, 169 [ 231 P.2d 484 ].) The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in …
discussed Cited as authority (rule) Leo v. Dunham (2×)
Cal. · 1953 · confidence medium
Without an instruction on sudden emergency "a different verdict would not have been improbable" (Delzell v. Day, 36 Cal.2d 349, 351 [ 223 P.2d 625 ]). *719 I am in full accord with the views expressed in the learned and able opinion of the District Court of Appeal, Second Appellate District, Division Three, prepared by Mr. Presiding Justice Shinn when this case was before that court [fn. *] (Cal.App.) 248 P.2d 935 .
cited Cited as authority (rule) Estate of Hart
Cal. Ct. App. · 1951 · confidence medium
(Delzell v. Day, 36 Cal.2d 349, 351 [ 223 P.2d 625 ]; Burke v. John E.
discussed Cited "see" Victaulic Co. v. Am. Home Assurance Co. (2×)
Cal. Ct. App. 5th · 2018 · signal: see · confidence high
(See Robinson v. Cable (1961) 55 Cal.2d 425 , 428, 11 Cal.Rptr. 377 , 359 P.2d 929 ["The fact that only the bare number of jurors required to reach a verdict agreed upon the verdict" lends support to finding of prejudice]; Whiteley v. Philip Morris, Inc . (2004) 117 Cal.App.4th 635 , 665, 11 Cal.Rptr.3d 807 [10-to-two verdict was "close"].) Superimposed on the above is that there were multiple errors which, as our colleagues have put it, is significant in and of itself: "Without attempting to analyze separately these issues of prejudice, we conclude that the cumulative effect of the errors was…
discussed Cited "see" Victaulic Co. v. American Home Assurance Co.
Cal. Ct. App. · 2018 · signal: see · confidence high
(See Robinson v. Cable (1961) 42 55 Cal.2d 425, 428 [“The fact that only the bare number of jurors required to reach a verdict agreed upon the verdict” lends support to finding of prejudice]; Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 665 [10-to-two verdict was “close”].) Superimposed on the above is that there were multiple errors which, as our colleagues have put it, is significant in and of itself: “Without attempting to analyze separately these issues of prejudice, we conclude that the cumulative effect of the errors was unquestionably to make it ‘reasonably pr…
discussed Cited "see" Veronese v. Lucasfilm Ltd. (2×)
Cal. Ct. App. · 2012 · signal: see · confidence high
(See Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 429 [ 7 Cal.Rptr.3d 60 ] [“No other instructions clarified or corrected the erroneous [instructions] . . . .”].) Superimposed on all of the above is that there were multiple errors which, as our colleagues have put it, is significant in and of itself: “Without attempting to analyze separately these issues of prejudice, we conclude that the cumulative effect of the errors was unquestionably to make it ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence o…
discussed Cited "see, e.g." Sutter's Place, Inc. v. City of San Jose
Cal. Ct. App. · 2024 · signal: see also · confidence low
California courts have granted a new civil trial where “the cumulative effect of the errors was unquestionably to make it ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s].’ ” (Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141 , citing People v. Watson, supra, 46 Cal.2d at p. 836 ; see also Delzell v. Day (1950) 36 Cal.2d 349, 351 .) Plaintiff asserts but has not demonstrated cumulative prejudice, as the only error we have identified is the trial court’s 15 failure to properly apply the test for whether …
Retrieving the full opinion text from the archive…
RAYMOND DELZELL Et Al., Appellants,
v.
PATRICK J. DAY Et Al., Respondents
L. A. 21591.
California Supreme Court.
Nov 13, 1950.
223 P.2d 625
A. V. Falcone for Appellants., C. F. Jorz and A. P. G. Steffes for Respondents.
Edmonds.
Cited by 24 opinions  |  Published
EDMONDS, J.

Raymond and Beatrice Delzell, husband and wife, sued to recover damages for personal injuries assertedly sustained by her and also upon related claims arising out of an automobile accident. A jury found against them but awarded their minor daughter Norma, who was also a party plaintiff, $750 damages for her injuries. In the appeal from the judgments entered upon these verdicts, it is charged that the trial judge committed prejudicial misconduct. The award in favor of Norma is said to be inadequate and the verdict against her parents is challenged as being without substantial evidentiary support.

The accident occurred when the automobile owned by Mr. Delzell and driven by his wife was struck by a truck which was following it. The automobile was thrown against a tree, injuring Mrs. Delzell and Norma. Virgil E. Aekles and Russell C. Wendell were the owners of the truck; admittedly it was being driven by Patrick J. Day in the scope of his employment.

The principal ground for reversal of the judgments is the claim that the trial judge constantly interfered with the conduct of the trial by comments upon the statements of law and the evidence presented by the Delzells. The respondents contend that because the jury found in favor of the Delzells upon the issue of Day’s negligence (implicit in the verdict in favor of Norma Delzell), the instances of alleged misconduct were not prejudicial as they related only to the question of liability. Reliance is also placed upon the rule that "... unless the harmful result of the alleged misconduct of the trial judge cannot be obviated by appropriate instructions of the trial court, error cannot be predicated in this court on such alleged[*351] misconduct in the absence of (a) assignment of such misconduct as error, and (b) a request to the trial court to instruct the jury to disregard it.” (Church v. Payne, 36 Cal.App.2d 382, 400 [97 P.2d 819].)

Neither of the respondents’ contentions is sound. The record does not support the statement that the asserted misconduct relates only to the question of liability. As to the argument that counsel for the Delzells failed to take exception to the remarks of the trial judge, several of the statements complained of concerned erroneous rulings or misstatements in commenting upon or summarizing the evidence. Section 647 of the Code of Civil Procedure specifies that exception is deemed to be taken to such matters. Furthermore, the record shows that the appellants’ counsel, upon several occasions, excepted to the judge’s comments and presented the appellants’ position as far as he was permitted to do so.

Although a request for an instruction, in addition to an assignment of error, generally is necessary as the basis for an appeal upon the ground of misconduct of counsel, there is no such requirement where it is charged that the appellant’s rights were prejudiced by the improper action of the trial judge. In Berguin v. Pacific Elec. Ry. Co., 203 Cal. 116,121-122 [263 P. 220], this court said: “There is no merit in the suggestion that an exception by counsel to these remarks of the court cannot avail appellant because she did not go further and request the court to instruct the jury to disregard the court’s own utterances . . . But the reasons for this rule [in cases involving remarks by opposing counsel] are entirely absent when applied to the acts and conduct of the court himself. A second appeal of this character to the court would in all probability have made a bad matter worse. The remarks would probably have been repeated with emphasis and in addition counsel would have found himself in a position anything but pleasant or secure.”

The appellants point to numerous comments or remarks by the trial judge made during the examination of jurors or witnesses which they charge constitute judicial misconduct. Taken separately, they do not justify a reversal of the judgments. However, considering the entire record, it cannot reasonably be said that their cumulative effect did not prejudice the appellants’ case. The situation is one in which the judgment against Mr. and Mrs. Delzell should be reversed and a new trial ordered because in the absence of the comments complained of, a different verdict would not have been[*352] improbable. (Cal. Const., art. VI, § 4½; People v. Hamilton, 33 Cal.2d 45, 51 [198 P.2d 873]; People v. Putnam, 20 Cal.2d 885, 892 [129 P.2d 367].)

The same order is required as to the judgment in favor of Norma Delzell. Her cause of action is closely related to that of her parents. Although the jury awarded Norma damages for her injuries, the amount of the verdict suggests that the jury, to some extent at least, was influenced by the remarks of the trial judge.

These conclusions make it unnecessary to consider the other points presented by the appellants.

The judgments are reversed.

Gibson, G. J., Carter, J., Traynor, J., and Schauer, J., concurred.