Bellows Falls Village Corp. v. State Highway Bd.

• Decision Date: 09 April 1963
• Docket Number: No. 1165,1165
• Citation: 123 Vt. 408,190 A.2d 695
• Parties: BELLOWS FALLS VILLAGE CORPORATION v. STATE HIGHWAY BOARD.
• Court: Vermont Supreme Court

Page 695

190 A.2d 695

123 Vt. 408

BELLOWS FALLS VILLAGE CORPORATION v. STATE HIGHWAY BOARD.

No. 1165.

Supreme Court of Vermont.

April 9, 1963.

Albert T. Belles, Bellows Falls, A. Luke Crispe, Brattleboro, for plaintiff.

Keith E. King, Springfield, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

This appeal comes to us before final judgment according to 12 V.S.A. § 2386. Its purpose is to obtain a review of the action of the Windham County Court in setting aside a highway condemnation award to the plaintiff in the amount of $114,000, and ordering a new trial. The Bellows Falls Village Corporation is the appellant and challenges the authority of the trial court to investigate the propriety of the jury's verdict.

The verdict was returned on Friday, May 18, 1962. Sometime during the week-end that ensued it came to the attention of a member of the court that one of the jurors had taken a private view of the premises that were the subject of the condemnation proceedings, during a recess of court at the time of the trial. It was also made known to the court that the jury had access to a newspaper clipping containing an editorial that appeared in the Bellows Falls Times on May 3, 1963 entitled 'Matter of Morality.' The source from which this information was communicated to the trial court does not appear in the record.

The editorial comment is a bitter denunciation of the attitude of the state highway board in Interstate Highway Project 91. It contains these excerpts.

'No one can predict what a jury will do once it is given a case to decide, but there are grounds for guarded optimism in the general attitude of jurors in the current session of county court toward people whose lands have been taken for Interstate Highway 91.

'The Village of Bellows Falls is vitally interested, as its own complaint against the State of Vermont is scheduled to be heard May 14. The state, it will be remembered, has offered only $23,500 for village watershed and water storage land taken even though the state's own experts agreed replacement costs would be $117,000.

* * *

* * *

'What sticks in our craw is not only the cash costs to Bellows Falls taxpayers, although that is bad enough, but the cynical immorality of the State's welshing on its given word.

'In the business world a verbal agreement is just as binding as a written one. The entire economy of the nation is based on the assumption that people and businesses will keep their words.

* * *

* * *

'The village hired an engineering firm to ascertain the cost. It was put at $117,000. State-employed engineers said the figure was reasonable--and the state came up with its puny offer of $23,500.

'Village residents can only hope that the jury which hears the appeal will judge the case not only as a dollars and cents injustice to Bellows Falls, but as a matter of morality. If they do, then we need have no fear of the outcome.'

On the following Monday, May 21st, the court summoned the jurors who had heard the case to the jury box, and in the presence of the court reporter who recorded the proceedings, inquired of each of the jurors individually concerning the events constituting the alleged misconduct. Counsel for the defendant was not available for this inquiry and counsel for the plaintiff were specifically excluded from the courtroom.

The transcript of the inquiry of the court confirmed that one of the jurors took a private view of the premises in controversy and this was the subject of comment during the deliberation of the cause. It further appears that eight of the jurors, either read the editorial, or heard it discussed during the trial or at the time of their deliberations.

The court probed deeper than this. It went on to inquire of the jurors how they arrived at their verdict. In this line of inquiry, the jurors disclaimed that the private view of their fellow juror and the presence of the newspaper editorial influenced the verdict.

After the court's inquiry way completed, counsel for each of the parties were furnished a copy of the transcript of the proceedings. Acting on the facts disclosed in this record, the defendant moved to set the verdict aside. After a hearing on the merits of the motion, with extended arguments presented by both sides of this controversy, the defendant's motion was granted and the verdict set aside.

At the time of oral argument of this appeal, counsel for the plaintiff recognized and conceded that the private view taken by one of the jurors and the use of the newspaper editorial, if established from sources other than the testimony of the jurors, would justify invalidating the verdict. But the plaintiff contends that since the court acted exclusively on the disclosure made by the jurors themselves, the protection which the law affords the participation of the jury enjoined the jurors from revealing their conduct. We are asked to reinstate the verdict for the reason that the order which set it aside was erroneously predicated on the privileged communication of the delinquent jurors.

The salient point of this appeal is the contest between conflicting policies of the law. The general rule of law designed to insure freedom of deliberation in the jury room competes against the paramount need of preserving the integrity of trial by jury.

Since Lord Mansfield's time, the rule has prevailed that the testimony of a juror is not available to impeach a verdict in which he participated. Vaise v. Delaval, (1785) 1 T.R. 11; 8 Wigmore, Evidence, § 2353 pp. 682 et seq. In this jurisdiction the doctrine was first applied to exclude evidence of improper deliberations of the jury after the cause was submitted. Judge Tyler explained the reason.

'It would be of dangerous tendency to admit Jurors by affidavit to detail these deliberations of the jury room, to testify to subjects not perfectly comprehended at the time, or but imperfectly recollected.

'From a natural commiseration for the losing party, or a desire to apologize for the discharge of an ungrateful duty, after the Juror had been discharged from office, he would be too apt to intimate, that if some part of the testimony had been adverted to, or something not in evidence omitted, his opinion would have been otherwise, whilst others of the panel, with different impressions or different recollections, might testify favourably for the prevailing party. This would open a novel and alarming source of litigation, and it would be difficult to say when a suit was terminated.' Robbins v. Windover, 2 Tyler 11, 14.

The doctrine has been invoked in varied cases before this Court since the decision in Robbins v. Windover. Harris v. Huntington, 2 Tyler 129, 147; Newton v. Booth, 13 Vt. 320, 327; Downer v. Baxter, 30 Vt. 467, 474; Sheldon v. Perkins, 37 Vt. 550, 557; Tarbell v. Tarbell, 60 Vt. 486, 494, 15 A. 104; Willey v. Carpenter, 65 Vt. 168, 177, 26 A. 488; Baker & Sons v. Sherman, 71 Vt. 439, 457, 46 A. 57; Marcy v. Parker, 78 Vt. 73, 88, 62 A. 19; Dailey v. Bond, 94 Vt. 303, 305, 111 A. 394; Hopkinson's, Adm'x v. Stocker, 116 Vt. 98, 102, 70 A.2d 587, 589. In the Hopkinson case the rule is referred to in broad language. 'It has long been settled in this State that affidavits of jurors will not be received to show any impropriety in the conduct of the jury, or improper mode of arriving at the verdict, in...