probable effect instruction in California

2025There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” Prejudice appears where “it seems probable that the jury’s verdict may have been based on the erroneous instruction.” (Robinson v. Cable (1961) 55 Cal.2d 428 , 428.) And as to a claim of instruction error, whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652 , 660– 661.) Finally, as the statute provides, “Prejudice

1991Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. [Citation.] To put it another way, ‘[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction prejudice appears and this court “should not speculate upon the basis of the verdict.” ’ [Citations.] As we observed in Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ], ‘The determination whether, in a specific instance, the pro

1992(Henderson v. Hamischfeger Corp., supra, 12 Cal.3d 663, 670 .) “To put it another way, ‘[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction prejudice appears and this court “should not speculate upon the basis of the verdict” ’ [Citations.]” (Id. at p. 670.) “The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given.

1989In making our determination whether the defective instructions constituted reversible error, we are guided by the language of our Supreme Court in Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ], wherein the court stated: “Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. [Citation.] To put it another way, ‘[w]here it seems probable that the jury’s verdict may have been based on the erroneous *408 instruction

1991(LeMons v. Regents of University of California, supra, 21 Cal.3d at p. 878 .) We conclude that the probable effect of the instruction at issue was to mislead the jury.

1984Error is considered prejudicial “[wjhere it seems probable that the jury’s verdict may have been based on the erroneous instruction. . . .” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ].) Whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ]; Hend

1974No precise formula can be drawn.” (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450 [ 2 Cal.Rptr. 146 , 348 P.2d 696 ]; Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ].) Mindful of these principles, we proceed to determine the probable effect of the instruction placing on plaintiff the burden of proving “that the deceased was unaware of the claimed defect” (see fn. 3, ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque .

1974No precise formula can be drawn.” (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450 [ 2 Cal.Rptr. 146 , 348 P.2d 696 ]; Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ].) Mindful of these principles, we proceed to determine the probable effect of the instruction placing on plaintiff the burden of proving “that the deceased was unaware of the claimed defect” (see fn. 3, ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque .

1984Error is considered prejudicial “[wjhere it seems probable that the jury’s verdict may have been based on the erroneous instruction. . . .” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ].) Whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ]; Hend

1984Error is considered prejudicial “[wjhere it seems probable that the jury’s verdict may have been based on the erroneous instruction. . . .” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ].) Whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ]; Hend

1984Error is considered prejudicial “[wjhere it seems probable that the jury’s verdict may have been based on the erroneous instruction. . . .” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ].) Whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ]; Hend

1984Error is considered prejudicial “[wjhere it seems probable that the jury’s verdict may have been based on the erroneous instruction. . . .” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1 , 527 P.2d 353 ].) Whether “the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ]; Hend

1979However, in determining whether or not the instructions given are correct, we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.” (O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15 [ 214 P. 975 ]; see also Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ]; Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 674 .) Consequently, it is necessary to e

1979However, in determining whether or not the instructions given are correct, we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.” (O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15 [ 214 P. 975 ]; see also Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ]; Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 674 .) Consequently, it is necessary to e

2014Co. (1992) 4 Cal.App.4th 306, 335 (Mock).) " 'The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given.

1992No precise formula can be drawn.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661 [ 320 P.2d 500 , 65 A.L.R.2d 1 ], italics added; Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1054.) Among the factors which are considered are (1) the degree of conflict in the evidence on critical issues and (2) the effect of other instructions in remedying the error.

1989No precise formula can be drawn.’ [Citations.]” (Id. at pp. 670-671; Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 47 [ 146 Cal.Rptr. 146 ].) From our examination of the entire record, including the evidence and the other instructions, we can only conclude the court’s error in instructing the jury on fraud by nondisclosure misled the jury, was prejudicial and resulted in a miscarriage of justice; therefore, the judgment cannot stand to the extent it is based on the fraud by nondisclosure verdict.

1989No precise formula can be drawn.’ [Citations.]” (Id. at pp. 670-671; Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 47 [ 146 Cal.Rptr. 146 ].) From our examination of the entire record, including the evidence and the other instructions, we can only conclude the court’s error in instructing the jury on fraud by nondisclosure misled the jury, was prejudicial and resulted in a miscarriage of justice; therefore, the judgment cannot stand to the extent it is based on the fraud by nondisclosure verdict.

1979However, in determining whether or not the instructions given are correct, we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.” (O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15 [ 214 P. 975 ]; see also Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ]; Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 674 .) Consequently, it is necessary to e

1979However, in determining whether or not the instructions given are correct, we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.” (O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15 [ 214 P. 975 ]; see also Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ]; Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 674 .) Consequently, it is necessary to e

1978Foundation (1975) 46 Cal. App.3d 123, 131 [ 120 Cal. Rptr. 39 ]); (4) the closeness of the jury's verdict (see Robinson v. Cable, supra, 55 Cal.2d at p. 428 ); and (5) the effect of other instructions in remedying the error (compare Wells v. Lloyd (1942) 21 Cal.2d 452, 458-459 [ 132 P.2d 471 ] with Krouse v. Graham, supra, 19 Cal.3d at p. 73 ). (1c) Reviewing the evidence in light of these factors establishes the probability that the erroneous instruction may have misled the jury.

1978Foundation (1975) 46 Cal. App.3d 123, 131 [ 120 Cal. Rptr. 39 ]); (4) the closeness of the jury's verdict (see Robinson v. Cable, supra, 55 Cal.2d at p. 428 ); and (5) the effect of other instructions in remedying the error (compare Wells v. Lloyd (1942) 21 Cal.2d 452, 458-459 [ 132 P.2d 471 ] with Krouse v. Graham, supra, 19 Cal.3d at p. 73 ). (1c) Reviewing the evidence in light of these factors establishes the probability that the erroneous instruction may have misled the jury.

1978Foundation (1975) 46 Cal. App.3d 123, 131 [ 120 Cal. Rptr. 39 ]); (4) the closeness of the jury's verdict (see Robinson v. Cable, supra, 55 Cal.2d at p. 428 ); and (5) the effect of other instructions in remedying the error (compare Wells v. Lloyd (1942) 21 Cal.2d 452, 458-459 [ 132 P.2d 471 ] with Krouse v. Graham, supra, 19 Cal.3d at p. 73 ). (1c) Reviewing the evidence in light of these factors establishes the probability that the erroneous instruction may have misled the jury.

1978Foundation (1975) 46 Cal. App.3d 123, 131 [ 120 Cal. Rptr. 39 ]); (4) the closeness of the jury's verdict (see Robinson v. Cable, supra, 55 Cal.2d at p. 428 ); and (5) the effect of other instructions in remedying the error (compare Wells v. Lloyd (1942) 21 Cal.2d 452, 458-459 [ 132 P.2d 471 ] with Krouse v. Graham, supra, 19 Cal.3d at p. 73 ). (1c) Reviewing the evidence in light of these factors establishes the probability that the erroneous instruction may have misled the jury.

1974No precise formula can be drawn.” (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450 [ 2 Cal.Rptr. 146 , 348 P.2d 696 ]; Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ].) Mindful of these principles, we proceed to determine the probable effect of the instruction placing on plaintiff the burden of proving “that the deceased was unaware of the claimed defect” (see fn. 3, ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque .

1974No precise formula can be drawn.” (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450 [ 2 Cal.Rptr. 146 , 348 P.2d 696 ]; Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ].) Mindful of these principles, we proceed to determine the probable effect of the instruction placing on plaintiff the burden of proving “that the deceased was unaware of the claimed defect” (see fn. 3, ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque .

1974Witkin, Cal. Procedure (2d ed. 1971) pp. 3056-3057.) (4) To put it another way, “[w]here it seems probable that the juryV verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’ ” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal. Rptr. 377 , 359 P.2d 929 ]; see also Luque v. McLean, supra, 8 Cal.3d 136, 147 ; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471 [ 62 Cal.Rptr. 577 , 432 P.2d 193 ]; Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ].) As we observed in

1974Witkin, Cal. Procedure (2d ed. 1971) pp. 3056-3057.) (4) To put it another way, “[w]here it seems probable that the juryV verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’ ” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal. Rptr. 377 , 359 P.2d 929 ]; see also Luque v. McLean, supra, 8 Cal.3d 136, 147 ; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471 [ 62 Cal.Rptr. 577 , 432 P.2d 193 ]; Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ].) As we observed in

1974Witkin, Cal. Procedure (2d ed. 1971) pp. 3056-3057.) (4) To put it another way, “[w]here it seems probable that the juryV verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’ ” (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [ 11 Cal. Rptr. 377 , 359 P.2d 929 ]; see also Luque v. McLean, supra, 8 Cal.3d 136, 147 ; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471 [ 62 Cal.Rptr. 577 , 432 P.2d 193 ]; Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ].) As we observed in

1960(Levin v. Union Oil Co., 174 Cal.App.2d 402 at 404 [ 345 P.2d 14 ].) As stated in Butigan v. Yellow Cab Co., supra, at 660 and 661: ‘ ‘ The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given.

1960(Levin v. Union Oil Co., 174 Cal.App.2d 402 at 404 [ 345 P.2d 14 ].) As stated in Butigan v. Yellow Cab Co., supra, at 660 and 661: ‘ ‘ The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given.

1959(Halleck v. Brown, 164 Cal.App.2d 586, 590 [ 330 P.2d 852 ].) The determination whether, in a specific instance, the probable effect of an instruction on unavoidable accident has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of-the ease, including the evidence and other instructions given. *319 (Butigan v. Yellow Cab Co., 49 Cal.2d 652, 660-661 [ 320 P.2d 500 ].) In Halleck v. Brown, 164 Cal.App.2d 586 [ 330 P.2d 852 ], this court said (p. 589) : “It is well settled that the giving of the unavoidable accident inst

1959(Halleck v. Brown, 164 Cal.App.2d 586, 590 [ 330 P.2d 852 ].) The determination whether, in a specific instance, the probable effect of an instruction on unavoidable accident has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of-the ease, including the evidence and other instructions given. *319 (Butigan v. Yellow Cab Co., 49 Cal.2d 652, 660-661 [ 320 P.2d 500 ].) In Halleck v. Brown, 164 Cal.App.2d 586 [ 330 P.2d 852 ], this court said (p. 589) : “It is well settled that the giving of the unavoidable accident inst

1959“Where, as here, the error consisted in instructing the jury as a matter of law on a question that is one of fact on conflicting evidence, and a determination favorable to the losing party might have been made if the error had not been committed, that error is prejudicial.” (Clement v. State Reclamation Board, 35 Cal.2d 628, 644 [ 220 P.2d 897 ].) In Butigan v. Yellow Cab Co., 49 Cal.2d 652, 660-661 [ 320 P.2d 500 ], it is stated: “The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so

1959“Where, as here, the error consisted in instructing the jury as a matter of law on a question that is one of fact on conflicting evidence, and a determination favorable to the losing party might have been made if the error had not been committed, that error is prejudicial.” (Clement v. State Reclamation Board, 35 Cal.2d 628, 644 [ 220 P.2d 897 ].) In Butigan v. Yellow Cab Co., 49 Cal.2d 652, 660-661 [ 320 P.2d 500 ], it is stated: “The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so