Consumers Power Co. v. Allegan State Bank

• Decision Date: 29 November 1972
• Docket Number: No. 33,33
• Citation: 202 N.W.2d 295,388 Mich. 568
• Parties: Petition of CONSUMERS POWER COMPANY, a corporation, for the Condemnation of Certain Interests in Lands in Allegan County, Michigan, Plaintiff-Appellant, v. ALLEGAN STATE BANK et al., Defendants-Appellees.
• Court: Michigan Supreme Court

Page 295

202 N.W.2d 295

388 Mich. 568

Petition of CONSUMERS POWER COMPANY, a corporation, for the

Condemnation of Certain Interests in Lands in

Allegan County, Michigan, Plaintiff-Appellant, v. ALLEGAN STATE BANK et al., Defendants-Appellees.

No. 33.

Supreme Court of Michigan.

Nov. 29, 1972.

Hoffman & Hoffman, Allegan, for plaintiff-appellant.

John B. Nahan, Allegan, for defendants-appellees.

Before the Entire Bench (Except BLACK, J.).

ADAMS, Justice.

I agree with Justice T. G. Kavanagh with regard to the issue of assemblage but am unable to agree with him that the holding by the Court of Appeals, that it was error for the Probate Court to permit the questioning the commissioners, was erroneous.

Const.1963, art. 10, § 2, provides:

'Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.' (Emphasis added.)

Const.1908, art. 13, § 1, provides:

'Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.'

Under the Constitution of 1908, condemnation proceedings were inquisitorial in nature. The commissioners were undirected during their deliberations and could carry on with a free hand. Under such circumstances, it was proper to subject their actions to judicial scrutiny after an award had been entered. Now the situation has been completely altered.

In accordance with the language of Const.1963, art. 10, § 2, we held in State Highway Commissioner v. Gulf Oil Corp. 377 Mich. 309, 140 N.W.2d 500 (1966), that the procedure to be followed by a judge in condemnation cases is that set forth in GCR 1963, 516.5, which reads:

'Judges of courts of record in which condemnation proceedings have been instituted shall preside over the proceedings in person and shall instruct the jury or commissioners on questions of law and admissibility of evidence.'

In the above case, the judge was absent from the bench during the proceedings, even though he began and ended them. We specifically held that 'the procedure followed by the judge in this case * * * is not to be condoned in future condemnation cases.' (pp. 315--316, 140 N.W.2d p. 503).

In view of the 1963 constitutional requirement that 'compensation shall be determined in proceedings in a court of record,' the holding of this Court in State Highway Commissioner v. Gulf Oil Corp, Supra, and GCR 1963, 516.5, the proper procedure to be followed in condemnation cases must accord with that in other judicial proceedings. If this case had been tried to a judge or a jury, cross-examination of the judge or of the jury after verdict would have been clearly improper.

Most cases dealing with the questioning of a jury involve an affidavit by a juror which would tend to impeach the jury's verdict. In McDonald and Unied States Fidelity & Guaranty Co. v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), the Court stated (pp. 267--268, 35 S.Ct. p. 784):

'For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.

'* * * But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation, to the destruction of all frankness and freedom of discussion and conference.'

This case has been frequently cited by State and federal courts and Law Journals. It has been interpreted as distinguishing facts which 'inhere in the verdict' and facts which are extraneous, 'outside influence.' (Jurors and the Sanctity of Their Verdicts, Hill, 63 W.Va.L.Rev. 261 (1961)).

In Rakes v. United States, 169 F.2d 739, 745 (CA 4, 1948), the Court stated:

'If jurors are conscious that they will be subjected to interrogation or searching hostile inquiry as to what occurred in the jury room and why, they are almost inescapably influenced to some extent by that anticipated annoyance.'

In People v. Pizzino, 313 Mich. 97, 105, 20 N.W.2d 824, 827 (1945), the Court stated:

'The rule is well established that jurors may not impeach their verdict by affidavits. To permit this would open the door for tampering with the jury subsequent to the return of their verdict.'

See also: In re Merriman's Appeal, 108 Mich. 454, 66 N.W. 372 (1896); People v. Van Camp, 356 Mich. 593, 97 N.W.2d 726 (1959); Ford Motor Credit Co. v. Amodt, 29 Wis.2d 441, 139 N.W.2d 6 (1966); Miller v. Illinois Central R. Co., 36 Wis.2d 184, 152 N.W.2d 898 (1967); West v. Alaska, 409 P.2d 847 (Alaska S.Ct. 1966); In re Will of Florence Hall, 252 N.C. 70, 113 S.E.2d 1 (1960); Zeiszler v. Fields, 255 Or. 540; 469 P.2d 34 (1970).

While most cases deal with an attempt to impeach a jury verdict by affidavits, a few cases deal with interrogation of juries.

In Miller v. Blue Ridge Transportation Co, 123 W.Va. 428, 15 S.E.2d 400, 405 (W.Va.S.Ct.App.1941), the Court said:

'Time and again it has been held that affidavits of a juror should not be received to impeach a verdict. * * *.

If the affidavit of a juror, voluntarily given, is not permissible for the purpose of impeaching a verdict, a trial court should not inquire of a jury as to the method used in obtaining the verdict. The same public policy prevails in either instance.'

In Hermann v. Schroeder, 175 S.W. 788 (Tex.Civ.App.1915), counsel wanted testimony taken from the jury as to whether the jury understood a charge. The Court said (p. 789):

'The jury is presumed to be composed of men of ordinary intelligence, who understand the court's charge. If such practices as here suggested were indulged in, it would soon become intolerable.'

See also: Teeters v. Frost, 145 Okl. 273; 292 P. 356 (1930).

In summary, McDonald v. Pless, Supra, is the majority rule based upon public policy reasons, i.e., to prevent invasion of privacy of the jury room, inhibiting frank and free discussions and tampering of the jurors.

As previously indicated, now that condemnation proceedings are carried on in courts of record under the control and supervision of the trial judge, the same rule should apply to such proceedings as in other cases. The commissioners stand in the place of a judge or a jury. Once they have arrived at their decision, for the reasons set forth in the various opinions and cases quoted or cited in this opinion, they should not be subject to cross-examination. The rule, as set forth by Judge Holbrook in his opinion in the decision of the Court of Appeals, should be followed. For the reasons set forth in this opinion, the earlier decisions of this Court in Marquette, H. & O.R. Co. v. Probate Judge, 53 Mich. 217, 18 N.W. 788 (1884), and State Highway Commissioner v. Ioppolo, 366 Mich. 487, 115 N.W.2d 315 (1962), have been superseded.

Affirmed and costs to defendant.

T. M. KAVANAGH, C.J., and WILLIAMS and SWAINSON, JJ.,...