Nebraska Elec. Generation & Transmission Co-op., Inc. v. Markus

• Decision Date: 25 March 1976
• Docket Number: No. 11529,11529
• Citation: 241 N.W.2d 142,90 S.D. 238
• Parties: NEBRASKA ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC., Plaintiff and Appellant. v. Lawrence MARKUS and Velma Markus, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 142

241 N.W.2d 142

90 S.D. 238

NEBRASKA ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE INC., Plaintiff and Appellant. v. Lawrence MARKUS and Velma Markus, Defendants and Respondents.

No. 11529.

Supreme Court of South Dakota.

March 25, 1976.

J. W. Grieves, Winner, for plaintiff and appellant.

Johnson, Johnson, & Eklund, Gregory, for defendants and respondents.

COLER, Justice.

Nebraska Electric Generation & Transmission Cooperative, inc., in this condemnation proceeding, joined Lawrence Markus and Velma Markus, husband and wife, in its original petition. Taken by the proceeding was a 100 ft. wide easement for the construction of a transmission line that will diagonally traverse three quarters of land amounting to an actual taking of 13.31 acres for the right-of-way upon which would be placed seven 2-pole structures for a 115 KV transmission line. The jury awarded the sum of $35,000 for all damages, including consequential damages to the remainder, and the condemnor appeals. We affirm.

Appellant, by timely objections, in its motion for new trial, assignments of error and on its brief, has preserved the following issues for the purposes of this appeal: (1) failure of the trial court to impanel a new jury to hear this case; (2) misconduct of jurors in considering evidence to previous cases tried; (3) impropriety of the instruction on the unit rule; (4) excessive damages appearing to have been given under the influence of passion or prejudice and on the grounds of insufficiency of the evidence to sustain the verdict, and (5) the failure of the trial court to restrict evidence of planned use and permitting certain testimony to be admitted without adequate foundation.

This case is the third of four condemnation cases tried in Tripp County involving condemnation of Todd County land by the appellant. See Nebraska Electric Generation & Transmission Cooperative, Inc. v. Tinant, file No. 11500, 1976, S.D., 241 N.W.2d 134, Nebraske Electric Generation & Transmission Cooperative, Inc. v. Cady, 1976, S.D., 241 N.W.2d 139, and Nebraska Electric Generation & Transmission Cooperative, Inc. v. Walkling, file No. 11528, 1976, S.D., 241 N.W.2d 150. Prior to the commencement of the trial on April 22, 1974, by letter dated April 11, 1974, counsel for the appellant requested the impaneling of eighteen new jurors pursuant to SDCL 21--35--12. Appellant further requested that, in the event of denial of a new panel under SDCL 21--35--12, the trial court consider its motion to challenge the panel called for the regular term of court since the jurors from that panel who had served in the two previous trials necessarily had 'pre-conceived notions and attitudes about any subsequent case' and, further that the present jury panel did not conform to SDCL 16--13--1, 16--13--10, and 16--13--10.1. The trial court deferred hearing of and ruling on the motions of the appellant until after the jury was sworn and evidence had been introduced. At the noon recess of the first day of trial the trial court denied the motion made pursuant to SDCL 21--35--12 on the basis that the regular term of court for Tripp County was still in session, therefore no special term was required. The court further denied appellant's challenge to the jury panel on the ground that no Todd County residents were included on the panel pursuant to SDCL 16--13--1, 16--13--10, and 16--13--10.1. ¹

The procedure for challenge to a jury panel in civil cases is governed by statutes relating to criminal proceedings. SDCL 15--14--4. As it relates to this case, a challenge to the panel can only be grounded on material departures from the forms prescribed by law, SDCL 23--43--11, and the challenge must specify 'plainly and distinctly the facts constituting the ground of challenge.' SDCL 23--43--12. We hold that the challenge was not properly grounded. Had the appellant claimed that a special term of court for the unorganized county of Todd was required by SDCL 16--5--19, ² under the then existing provisions of SDCL 16--5--11, in adequate time for the respondents to have applied for a change of venue pursuant to SDCL 15--5--11, we might be persuaded that error occurred. However, that ground was not alleged and we are not persuaded that the appellant has met its burden of proof that prejudice resulted, State v. Smith, 1930, 57 S.D. 292, 232 N.W. 26, nor that the irregularity, if such can be claimed on this record, deprived appellant of a substantial right. SDCL 16--13--31.

In denying appellant's motion to impanel a new jury because most members of the panel had served in the two previous cases tried, the trial court quite properly stated that it would 'excuse any jurors demonstrating implied bias for or against any of the parties'. The transcript contains none of the voir dire examination and there is no claim made that the jurors selected evidenced any bias or prejudice. Appellant filed an affidavit of a juror to the effect that she and other members of the jury considered the similarity of the evidence and the verdicts in the two previous cases tried and made comparisons in arriving at a verdict in this case.

We hold that the affidavit was inadmissible for the purpose offered. It is the 'settled law in this state that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of mistake, irregularity, or misconduct of the jury, or some one or more of them, except in the cases expressly authorized by the legislature.' Edward Thompson Co. v. Gunderson, 1897, 10 S.D. 42, 71 N.W. 764; Kredit v. Ryan, 1942, 68 S.D. 274, 1 N.W.2d 813. As stated by this court in Kredit v. Ryan, supra,

'Our legislature has not, up to the present moment, expressly authorized the receiving of jurors' affidavits by courts except SDC 33.1605(2) (now SDCL 15--6--59(a)(2)), and as there is nothing in the facts in the case before us that could possibly be construed to be governed by subdivision 2, we must adhere to our former holdings in an unbroken line of authorities that affidavits of jurors may not be used to impeach and overthrow their verdicts. * * * In this State the affidavits of jurymen cannot be received to impeach or defeat their verdict. The prohibition extends beyond cases of willful misconduct on the part of jurors, and to every case in which the affidavits are attempted to be used as ground for setting aside a verdict because of a misunderstanding of its effect by some or all of the jurors who united in its rendition. The only exceptions to this rule are those in which the Legislature has by express enactment authorized such attack upon the verdict by those who rendered it, and it is not pretended that the present case is within any such exception.' Kredit v. Ryan, supra, at 279, 1 N.W.2d at 815.

During the course of the trial it became apparent that there were some parcels of land involved in the total ranch unit acreage of 2059 acres which were owned by Lawrence Markus, individually, and others which he held in joint tenancy with his wife Velma. After a thorough review of a 244-page transcript of the trial which, contrary to SDCL 15--29--5, the court reporter failed to index, and from examination of the nonindexed exhibits, we find that Lawrence Markus owned in fee all of Section 4 of Township 36 North, of Range 30, West of the Sixth P.M., consisting of 459.40 acres, the south two quarters of which were affected by the taking and also the North Half of Section 10, Township 36 North, of Range 30 West, containing 320 acres, with the Northwest Quarter thereof being the third quarter affected by the transmission line. Section 4 of Township 36 North, Range 30 West, is contiguous to the North Half of Section 10 constituting the home place, and Lawrence Markus had acquired another 160 acres to the north, being the Southeast Quarter of Section 3 and two noncontiguous 160-acre tracts some one-and-a-half and three miles distant, being the Northeast Quarter of Section 25 and the Southwest Quarter of Section 13, both in Township 37 North, of Range 30 West. Lawrence and Velma Markus owned in joint tenancy a full quarter of contiguous land described as the Northwest Quarter of Section 11, Township 36 North, Range 30 West. They also had acquired a joint interest under contract for deed, which was not of record, in the East Half of Section 36, Township 37 North, of Range 30 West, the Northeast Quarter and the Southwest Quarter of Section 31, Township 37 North, of Range 29 West. State Highway Commission v. Miller, 1968, 83 S.D. 124, 155 N.W.2d 780. Appellant has not challenged the claimed ownerships nor the contiguity of the tracts, apparently on the basis that the lands were rendered contiguous by lease of Indian lands which were interspersed with lands of the respondents. These leases involving some 2588 acres were considered as being terminable and were not claimed as part of the unit.

As in Nebraska Electric Generation & Transmission Cooperative, Inc. v. Cady, and Nebraska Electric Generation & Transmission Cooperative, Inc. v. Tinant, both supra, the appellant claims that the rule of this court announced in Basin Electric Power Cooperative, Inc. v. Cutler, 1974, S.D., 217 N.W.2d 798, is controlling and that Instruction #7 ³ was erroneously given. The evidence in this case so closely parallels the evidence in both Tinant and Cady as to the irrigation potential and the need for irrigation as to render it unmeaningful to recite that evidence. The evidence supported the giving of the instruction and, no instruction having been offered by the appellant, it became the law of the case. SDCL 15--6--51(a). Viewing the evidence in the light most favorable to the prevailing party, we determine appellant's claims of excessive damages appearing to be the result of passion or prejudice and the insufficiency of the evidence to sustain the verdict to be without merit. SDCL 15--26--19 and annotations thereunder.

The more troublesome challenge to the...