Great Northern Ry. Co. v. Benjamin

• Decision Date: 24 June 1915
• Docket Number: 3535.
• Parties: GREAT NORTHERN RY. CO. v. BENJAMIN ET AL.
• Court: Montana Supreme Court

149 P. 968

51 Mont. 167

GREAT NORTHERN RY. CO. v. BENJAMIN ET AL.

No. 3535.

Supreme Court of Montana

June 24, 1915

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by the Great Northern Railway Company against Orzella D Benjamin and others. From a judgment for plaintiff, defendant John O. Gilkerson appeals. Affirmed and remanded with directions.

John C Huntoon and Edward C. Russell, both of Lewistown, for appellant.

Veazey & Veazey, of Great Falls, and O. W. Belden, of Lewistown, for respondent.

HOLLOWAY J.

This action was instituted by the Great Northern Railway Company to condemn certain lands for public use. Defendant Gilkerson, being dissatisfied with the commissioners' award, appealed to the district court, where the trial of the cause resulted in a verdict and judgment fixing the amount of his damages. From that judgment and from an order denying his motion for a new trial, these appeals are prosecuted.

Appellant is not entitled to have his bill of exceptions considered as a matter of right. Amendments to the proposed bill were presented and some of them allowed, but the bill as amended was never engrossed and it is impossible for us to determine what should and what should not be included. However, in our desire to reach the merits of the appeal, we assume that the affidavits used on the motion for a new trial are properly before us.

1. The notice of intention enumerates all but one of the statutory grounds for a new trial; the motion, however, was heard and determined upon but one, misconduct of the jury. In support of his contention that the verdict was reached by a resort to the determination of chance, appellant presented the affidavits of two of the jurors:

Gottlieb Jenni states:

That the jurors "after retiring to deliberate upon their verdict, found that there was wide diversity of opinion among them as to the amounts to be awarded to the defendant John O Gilkerson for his land and for damages to the remaining portion, and that, after arguing the matter for some time, some juror suggested that each juror write on a slip of paper the amounts that he thought fair for the land taken and also for the damage to the portion not taken, and that the amounts so given, respectively, be added together and the result divided by the number of jurors, twelve, and that they take such average as their verdict. That this plan was agreed to and carried out, and this deponent so acted, and agreed to the verdict so arrived at, and that all the jurors did likewise, and the verdict so obtained was brought into court as the verdict of the jury, and so recorded."

The affidavit of the juror W. H. Metz states:

"That after the issues in said action were submitted to said jury and said jury had retired to consider upon their verdict therein, and, after arguing upon the amount to be allowed to the defendant John O. Gilkerson for damages to the portion of said defendant's land not taken by plaintiff, each juror wrote down on a slip of paper his judgment of the amount to be awarded; it was then agreed by all the jurors that these amounts should be added together and the sum should be divided by twelve, and thus the average of all the amounts should be found. This was done by one of the jurors and the average amount was found to be $280. That a motion was then made by one of the jurors that the amount so found should be adopted as their verdict as to such damages. That such motion was duly put and carried, and that said amount was then inserted in the formal verdict as the amount so to be awarded to said defendant for damages to that portion of his lands not taken, and said verdict fixing said amount, to wit, $280, as such award, was returned into court as the verdict of said jury on said point, and was acknowledged by all said jurors as their verdict and filed as such."

In common parlance, a quotient verdict is not infrequently referred to as one condemned by subdivision 2 of section 6794, Revised Codes. This provision, however, has to do only with a verdict to which a juror was, or jurors were, induced to assent by a resort to the determination of chance, and unless the means employed fall under the ban of this statute the juror is not permitted to impeach his verdict. We do not know that any court has ever condemned the practice, quite prevalent with jurors, of taking the aggregate of the amounts representing their divergent views as to an award to be made and dividing that sum by the number of jurors as a means of ascertaining the average or as a basis for further consideration. It is only when the jurors agree in advance that the quotient thus obtained shall constitute the amount of their verdict, and such agreement is carried into effect, that the proceeding constitutes a resort to the determination of chance and is condemned by the statute above.

The general rule on the subject is stated in 29 Cyc. 812, as follows:

"A verdict will not be set aside merely because the amount thereof was the result of a compromise between jurors, nor because the amount was first found by adding together the amounts the several jurors thought should be given and dividing the sum by

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