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

• Decision Date: 17 June 1936
• Docket Number: No. 245.,245.
• Citation: 15 F. Supp. 379
• Parties: UNION ELECTRIC LIGHT & POWER CO. v. SNYDER ESTATE CO. et al.
• Court: U.S. District Court — Western District of Missouri

15 F. Supp. 379

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

No. 245.

District Court, W. D. Missouri, W. D.

June 17, 1936.

Edgar Shook and R. R. Brewster, both of Kansas City, Mo., for plaintiff.

James A. Reed, Henry Bundschu, John E. Wilson, and Leon M. Bailey, all of Kansas City, Mo., for defendants.

OTIS, District Judge.

The trial of this case began February 4, 1935. It continued during the greater part of three weeks, taking up in all seventeen court days. Approximately two additional days were given by the jury to the consideration of its verdict. Defendants' motion for a new trial was timely filed. Although the motion several times was set for argument, argument of the motion was long delayed by reason of the engagements of counsel elsewhere or their necessary absence from the district. The motion was argued May 16 and May 18, 1936, and now is to be ruled.

This was the second trial of the case. It had been tried in the Central Division of the District before Judge Reeves. The duration of that trial was nine weeks. From the resulting judgment, an appeal was taken. The judgment was reversed and the case remanded. Union Electric Light & Power Co. v. Snyder Estate Co. et al. (C.C.A.) 65 F.(2d) 297. By agreement of the parties, the second trial was had in the Western Division at Kansas City.

The plaintiff had condemned and taken certain property of defendants as an incident to the construction of a huge dam across the Osage river and the consequent flooding of lands contiguous to that river and its tributaries. From the damages awarded defendants by commissioners, an appeal was taken to the District Court. At the trials the issue was: What damages, if any, were sustained by defendants from the taking of their property? At the first trial the damages were fixed by the jury at the sum of $350,000. At the second trial the damages were fixed at $200,000. Commissioners, appointed by the court, had assessed the damages at $143,413.

Defendants believe the damages assessed at the second trial are inadequate. Hence this motion.

The property affected (called Hahatonka) is a site in the Ozark Mountains of Missouri, famous for its scenic beauty, enriched also by history and legend. Certainly its character was and still is unique. Difficulty of evaluating in money a property so unusual and of estimating the damages sustained was great. Quite naturally opinions as to values differed. The task imposed on court and jury, however easily described in words, in no sense was easily worked out.

Many years ago Hahatonka was acquired by R. M. Snyder. Its present owners are his sons (the title is held by the defendant Snyder Estate Company, a family corporation). They are men of high character, much esteemed. In all sincerity they believe that the damages awarded them are insufficient.

Upon the argument of the motion for a new trial, the chief insistence of learned counsel for defendants had to do with the jury which heard the case, with the imposture of one of the twelve jurors and the conduct of another.

1. Inquiry touching the jury, when it began, looked to larger matters than the two relatively insignificant things which actually were developed. From the fact that on the voir dire examination one juror (Mr. Jackson, a fine upstanding old gentleman, who became foreman of the jury) disclosed that, after he was summoned, a stranger had sought to talk to him about the case, counsel for defendants suspected that improper influences had been brought to bear upon the jury. They asked and were given every opportunity thoroughly to investigate that matter. They were permitted to file an amendment to the motion for new trial. They were given extensions of time for further investigation. They were authorized to subpœna and examine witnesses in open court. Even the rule which forbids jurors impeaching their own verdict was ignored (plaintiff's counsel making no objection) and the very deliberations of the jury room were laid bare through the testimony of jurors. No technicality, it was thought, should be permitted to shield guilt, if guilt there were, if that guilt involved the integrity of a trial in a court of justice.

But all the investigation aided by the processes of the court and the most skillful examination and cross-examination of witnesses developed nothing sinister. The truth is, there was nothing to develop. Just as defendants and their counsel were men of the highest character and integrity, so, in no less degree, were the officers of plaintiff and the reputable attorneys who represented it. No attorney on either side in this case would have tolerated for one second the slightest deviation from the high road of rectitude and professional honor.

The two matters that were developed concerned jurors Mariner and Andersen.

Juror Mariner.

One C. L. Mariner was summoned as a member of the panel from which the jury would be chosen. When those summoned were called for the voir dire examination, an individual present in the courtroom answered to that name. He was not challenged and so became one of the twelve. He continued in that capacity throughout the trial and during one day of the jury's deliberation.

On the morning of the second day of the jury's deliberation, before the jury had reassembled, the foreman of the jury advised the judge that one of the jurors (he was not at first able to identify him by name, but it turned out to be Mariner) was acting strangely in the jury room, that he would neither participate in the jury's discussion or balloting, that what little was said by him was incoherent, that, in the opinion of the foreman and other jurors, he was not in his right mind.

Being thus advised, the judge called counsel into chambers, gave them the information he had received, and urged that they agree that Mariner be excused.

At the beginning of the trial a stipulation had been entered into by the parties whereunder the judge was authorized to excuse as many as two of the twelve jurors, should that become necessary, the parties agreeing that the case should proceed to a verdict with the jurors remaining. The judge had suggested this stipulation in view of the possible length of the trial. Counsel readily agreed it was a wise precaution.

But there was some doubt (at the time and in the mind of the judge only) as to whether the case of Mariner fell within the intention of the stipulation. Therefore the judge asked counsel to stipulate orally that Mariner should be excused. That was done and he was then excused both under the oral and the written stipulation.

After Mariner was excused and before a verdict was reached by the jury it was learned by the judge, by the marshal, and by counsel for both parties (and that the court finds to be a fact from the testimony introduced in connection with the submission of the motion for new trial) that Mariner was not the C. L. Mariner who had been summoned as a juror, but W. J. Mariner, a brother of C. L. Mariner, who responded to the summons of C. L. Mariner and answered to his name.

Although counsel for defendants knew this fact before the verdict, they took no action (such as a motion to discharge the jury) based upon that knowledge. It is now urged, however, as a reason for a new trial.

Upon the argument of the motion, answering the contention of plaintiff's counsel that failure to act after knowledge constituted a waiver of any objection to the fact that Mariner wrongfully had become a member of the jury, counsel for defendants said it was too late to object after Mariner had been excused. Clearly the contention is not so answered. If it was too late to make the objection after Mariner was excused and before verdict, it is certainly too late to make the objection after verdict.

If the objection now to Mariner has such merit as that because of it the verdict should be set aside, it would have supported a motion to discharge the jury before the verdict. A party cannot gamble with the possibility of a favorable verdict and then thereafter, when the verdict proves unfavorable, raise a question he might have raised before the verdict.

There is still another reason why this question should be ruled against defendants. The parties stipulated that, in a certain contingency, the case might be decided by a jury of eleven or of ten men, that even a lawful juror or two lawful jurors might be excused by the judge if sufficient reason for excusing him or them should arise. The fine purpose of this stipulation was to prevent a mistrial from some adventitious cause which could not be foreseen nor prevented. Discovery that a lawful juror was so ill mentally that he could not function would have warranted his discharge under the stipulation. That a juror was incompetent because he was an imposter certainly would have been equally within the purpose of the stipulation.

Moreover, if the objection had not been waived and if there had been no stipulation, more would need be shown than has been shown to justify a new trial on such a ground as this. Mariner, who was not a lawful juror, did not influence the verdict. He was excused before the verdict and because the jury, through its foreman, urged that he be excused because he was irrational. It is idle to say that such a man under such a circumstance influenced the verdict reached by the eleven remaining after he was excused. His presence on the jury (while he was present) did not prejudice the defendants.

But it is said that the absence of the lawful juror who would have been upon the jury except for Mariner's imposture may have prejudiced defendants. That, however, is the purest speculation.

We can only...