Butler v. Com., Dept. of Highways

• Citation: 387 S.W.2d 867
• Parties: James J. BUTLER, Jr., et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
• Decision Date: 05 March 1965
• Court: United States State Supreme Court (Kentucky)

Page 867

387 S.W.2d 867

James J. BUTLER, Jr., et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.

Court of Appeals of Kentucky.

March 5, 1965.

Henry J. Burt, Jr., W. Howard Clay, Louisville, for appellants.

John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Raleigh O. Jones, Dept. of Highways, Louisville, for appellee.

PALMORE, Judge.

The dispositive question on this appeal arised from the alleged misconduct of one of the jurors during the trial of a condemnation case.

On the second morning of the trial, before the Commonwealth had completed the introduction of its evidence and before any valuation witnesses had testified, the witness Lewis R. Long was permitted to appear out of order in behalf of the landowners because it was necessary for him to leave town that day. Immediately after he had given his opinion to the effect that the property in question had a fair market value of $2,000 per acre at the time of the taking, an objection was made, whereupon counsel and the trial judge retired from the presence of the jury, leaving Long in the witness chair and the jurors in the jury box. According to Long's affidavit later filed in support of the landowners' motion for a new trial, during this brief recess several of the jurors 'were talking among themselves in regard to this property' and one of them stated that 'no land out there is worth $2,000 an acre.' ¹

Facts stated in an affidavit supporting a motion for new trial will be taken as true unless countered. Roland v. Eibeck, Ky., 385 S.W.2d 37, 41 (1964). Certainly Long's affidavit, if untrue or inaccurate, could have been contradicted be affidavits from others present at the trial, including the jurors themselves. ²

The Commonwealth does not question the affidavit, but suggests that the juror's comment was just a casual remark not indicative of any prejudice. With much regret at the necessity of remanding this excellently tried case for a new trial, we are forced to a different conclusion. The value of the land was the heart and soul of the case. Two witnesses for the condemnor fixed it at $870 and $850 per acre, respectively. The appraisals of six witnesses for the landowners ranged from $1,800 to $2,000 per acre. The jury eventually determined that the value of the portion taken was $900 per acre. At the time the bumptious juror injected his unsolicited opinion only one of these figures had been given, and that was $2,000. The only possible basis for his scoffing at that estimate before hearing the others was prejudice.

KRS 29.302 provides that when a jury is permitted to separate the jurors must be admonished to the effect that 'during the trial, it is their duty not to form or express an opinion thereon, until the cause is finally submitted to them.' The admonition given to the jurors by the trial court when they separated the evening before this particular incident happened was not exactly in the form required by the statute, but we do not believe that is material, because the right to a fair and impartial jury is fundamental. It does not rest on the statute ³ and it does not rest on the giving or not giving of an admonition. It inheres in the woof and warp of the jury system itself.

'The conduct of the jury after they are impanelled is a matter of very great concern. The law, before their selection, insists on impartiality between the parties; hence, any exhibition of favor toward either of the parties, by act or expression, will be fatal to their proceedings.' Proffatt on Jury Trial, Sec. 386 (p. 449).

Normally the trial court is allowed much discretion in determining the prejudicial effect of a juror's misconduct, particularly if there is an opportunity to...