Union Electric Light & Power Co. v. Snyder Estate Co.

• Decision Date: 24 April 1933
• Docket Number: No. 9606.,9606.
• Citation: 65 F.2d 297
• Parties: UNION ELECTRIC LIGHT & POWER CO. v. SNYDER ESTATE CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 297 (1933)

UNION ELECTRIC LIGHT & POWER CO. v. SNYDER ESTATE CO. et al.^*

No. 9606.

Circuit Court of Appeals, Eighth Circuit.

April 24, 1933.

COPYRIGHT MATERIAL OMITTED

Walter H. Walne, of Houston, Tex. (Edgar Shook, of Kansas City, Mo., Carl L. Crocker, of Eldon, Mo., Tom Martin Davis and S. H. German, both of Houston, Tex., Theodore Rassieur, of St. Louis, Mo., and Baker, Botts, Andrews & Wharton, of Kansas City, Mo., on the brief), for appellant.

James A. Reed, of Kansas City, Mo. (John E. Wilson, of Kansas City, Mo., Sid C. Roach, of Jefferson City, Mo., and Henry A. Bundschu, Leon M. Bailey, James J. McNamara, Burr S. Stottle, and Wilson, Bundschu & Bailey, all of Kansas City, Mo., on the brief), for appellees.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment assessing damages in a condemnation proceeding in which appellant, plaintiff below, sought to acquire an easement to store water and to flood lands. For convenience, the parties will be referred to as they were designated in the lower court.

The property involved is known in the record as Hahatonka, and is located in the Ozark Mountains on the Big Niangua river, about fifteen miles above the point of confluence of the Niangua and the Osage rivers, and about forty-nine miles up the river from the Bagnell Dam. The building of this Bagnell Dam necessitated the securing of an easement for the storage of waters and the flooding of land. The dam was constructed as a part of a project for the development and transmission of electric power. The promotion of the project began in 1924, when a permit was given by the Federal Power Commission to construct the dam. In 1926, acting under the Federal Water Power Act (41 Stat. 1063 16 USCA §§ 791-823), this commission issued a license for the construction of the dam to an elevation of 655 feet above mean sea level, with the right to flood the territory above the dam to that elevation. By mesne transfers and assignments this license was acquired by plaintiff, Union Electric Light & Power Company. In 1929, actual construction of the dam began, and it was constructed to an elevation of 660 feet above sea level, instead of 655 feet, and this, by appropriate amendment of the license, was authorized by the Federal Power Commission.

The present condemnation proceedings were brought under section 21 of the Federal Water Power Act (41 Stat. 1074 16 USCA § 814), which provides that any licensee who cannot acquire by contract or pledge "an unimproved dam site or the right to use or damage the lands or property of others necessary to the construction, maintenance, or operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory thereto, in conjunction with an improvement which in the judgment of the commission is desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such land or other property may be located, or in the State courts."

Defendant Snyder Estate Company, a corporation, owned the property, and the defendant Byron G. Bliss, trustee, was made a party as the holder of an unreleased deed of trust against the property. Both defendants answered the petition in condemnation which was filed in the lower court. The general effect of each answer was to deny the right of plaintiff to condemn the property.

The federal statute above quoted contains provision that the practice and procedure in any proceeding for the purpose of condemning property under the act "shall conform, as nearly as may be, with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated." Section 21 (16 USCA § 814).

After hearing, the court in form entered a judgment of condemnation, and appointed three commissioners to assess the damages. The commissioners in due time filed a report assessing damages in the sum of $143,413. Plaintiff and defendants excepted to this report, whereupon the court, pursuant to the Missouri practice, ordered a jury trial of the issue. The trial of the proceeding before the jury resulted in a verdict assessing damages at $350,000, and from the judgment entered thereon plaintiff has appealed.

The record discloses 100 assignments of error, 47 of which are argued by plaintiff in a brief of 557 pages. These assignments may be summarized or grouped under the following general headings: (1) The court erred in refusing to dismiss the panel of jurors because of their disqualification; (2) there was misconduct of counsel; (3) the court erred in admitting evidence as to the value of the alleged power site separate and apart from the value of the land and in giving and refusing instructions relative thereto; (4) the court erred in giving and refusing instructions as to the rights acquired by plaintiff, and in refusing plaintiff's request to file a stipulation limiting its right under its license; (5) the court erred in refusal of motions to strike out evidence adduced on direct examination, after cross-examination showed its incompetence; and (6) the court erred in giving and refusing instructions going to the proper elements of damage.

The court denied plaintiff's motion to dismiss the panel of jurors, urged on the ground that certain jurors had read a newspaper article appearing in the Jefferson City Post Tribune of November 29, 1931. November 30th was occupied with the examination of jurors on their voir dire, the court adjourning before challenges were exercised. On reconvening the next morning, and before peremptory challenges were exercised, counsel for plaintiff inquired of the prospective jurors whether they had read the article referred to. Two of the jurors said they had read the headlines only, one that he had read part of the article, another that he had read half of the article, and two that they had read the entire article. Based on this showing, counsel for plaintiff moved that the panel of prospective jurors be discharged. The motion being denied, counsel for plaintiff then moved that those jurors who had read the article be dismissed from the panel, and this motion was likewise denied. Peremptory challenges were then exercised, and there remained on the jury one juror who had read the headlines, one who had read half the article, and two who had read the entire article.

Regardless of the character of the article, the first motion was properly denied because it asked for the discharge of the whole panel, while only certain of the members of the panel had read the article in whole or in part. The second motion was also properly denied because a juror is not disqualified from the mere fact that he has learned something of the facts, or of what are printed in a newspaper as the facts of the case. Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; Gallot v. United States (C. C. A. 5) 87 F. 446; Dimmick v. United States (C. C. A. 9) 121 F. 638; Allen v. United States (C. C. A. 7) 4 F.(2d) 688; State v. Lewis, 323 Mo. 1070, 20 S.W.(2d) 529; McGuire v. Amyx, 317 Mo. 1061, 297 S. W. 968, 54 A. L. R. 644; State v. Herring, 268 Mo. 514, 188 S. W. 169.

True, the jurors might from the reading of a newspaper article have formed such an opinion, or have been so prejudiced as to disqualify them upon challenge for cause properly presented to the trial court. In this case, however, no inquiry was made of the individual jurors as to whether they had from the reading of the offending article gained any impression or formed any opinion as to any material fact connected with the case. The qualification of jurors is peculiarly a matter for the determination of the trial court, and that court is of necessity vested with a very large discretion. Remus v. United States (C. C. A. 6) 291 F. 501; Connors v. United States, 158 U. S. 408, 15 S. Ct. 951, 39 L. Ed. 1033; State v. Craft, 299 Mo. 332, 253 S. W. 224. It appears affirmatively that counsel for defendants, after the motion had been made, asked the presiding judge if he would not "ask these jurors who have seen this article if it will affect their verdict in this case, so that we may have a record. If they say it will affect their view, I think then we would have to have a new jury, but if they say it will not affect it, then it will be for Your Honor to exercise your discretion in the matter." This procedure was opposed by counsel for plaintiff. The court then admonished the jury that anything they might have read in the newspaper should be wholly disregarded and dismissed from their minds. It was the duty of counsel to ascertain by proper examination at the time the jury was impaneled, the existence of any ground of objection to the jurors, and failing so to do, he cannot thereafter raise any objection which might have been discovered and seasonably presented to the trial court. State v. Murray, 316 Mo. 31, 292 S. W. 434; Killion v. Dinklage, 121 Neb. 322, 236 N. W. 757.

The mere fact that jurors may erroneously have obtained information concerning the case from a newspaper article does not necessarily constitute prejudicial error requiring their discharge. We have examined the newspaper article in question and cannot say that it was of such a character as necessarily to create prejudice, and we are clear that there was no error in denying plaintiff's motion.

Complaint is made that defendants' counsel did not confine their statements, evidence, or arguments to the issues of fact, but went far beyond them, and in so doing appealed to the passion and prejudice of the jury. It is, however, contended by defendants' counsel that the challenged statements were not excepted to when...