Ohio River R. Co. v. Blake.
| Decision Date | 03 February 1894 |
| Citation | 38 W.Va. 718 |
| Court | West Virginia Supreme Court |
| Parties | Ohio River R. Co. v. Blake. |
1.Record-Jury Freeholders.
Tbe record need not show in terms that a jury formed under section 17, c. 42, of the Code, in a proceeding to take land or material therefrom for public use are freeholders.
2. Record Jury Freeholders.
The record in such a proceeding shows that the jurors were "drawn, selected, tried, and sworn in the maimer required by law." It will be presumed they were freeholders.
3. Record Jury Freeholders Presumption Objection.
No objection having been sooner made against a juror for want of freehold qualification, it is too late after verdict in such a proceeding to make such objection based on affidavit or other evidence dehors the record.
4. Record Jury Freeholders Objection.
An objection to a juror for want of qualification comes too late after verdict.
5. New Trial Remittitur.
In such case, the release of a portion of the compensation found by a jury as suggested by the court as a condition of the refusal of a new trial, and the refusal of a motion for a new trial on account of excessiveness in the amount found, is not error for the reason, if for no other, that the evidence furnishes data on which the compensation can be measured, and the reduced sum is not excessive.
6. New Trial Damages Release of Part.
Can the court, in an action for a tort, where the law furnishes no rule for the assessment of damages, oil a motion for a new trial, based on excessiveness of damages, suggest the release of a part, and, upon such release being made, refuse a new trial? Cases of Vinal v. Core, 18 W. Va. 1.,-and Unfried v. Railroad Co., 34 W. Va. 260 (12 8. E. Rep. 512) discussed in this regard.
Vinson, McDonald & Thompson, for plain tiff in error cited Code, c. 42, s. 17; Id. c. 52, s. 14; 9 W. Va. 648; Id. 661; 18 W. Va. 1; 34 W. Va. 260; Id. 280.
Campbell k Holt, for defendant in error.
I. The record shows that the jurors were freeholders. 9 W. Va. 648; 36 W. Va. 263.'
II. The verdict was not excessive, and, under such circumstances, the action of the trial court compelling the defendant in error to take a smaller amount in place of*a new tried, will not be disturbed. 18 W. Va, 1; 34 W*. Va..
Brannon, President:
Under section 14, c. 52, Code 1891, the Ohio River Railroad Company made application to a justice of Cabell county to appoint commissioners to ascertain the compensation which it should pay to Cappie B.. Blake for gravel which it proposed to take from land of Blake for use on its road, and, commissioners having been appointed, and returned their report to the Circuit Court, and Blake having excepted to it and demanded that such compensation be assessed by a jury, and a jury-having assessed it, the company moved the Circuit Court to set the verdict aside, and, its motion having been overruled, the company brought the case here. The plaintiff in error points out as error that the court ought to have set aside the verdict because some of the jurors were not freeholders, as required by statute and constitution in such a case. Counsel say First, that the record ought to show on its face that the jury was made up of freeholders; and, second, that at any rate, when it is shown dehors the record that it was not so composed, the verdict ought to have been annulled.
1. The record does not show its own error by its omission in words to say that the jury consisted of freeholders. It says that they "were drawn, selected, tried, and sworn in the manner required by law." The word "selected" im- ports that they were freeholders that is, that they were set apart from all other persons as required by law, which required them to be freeholders and we would assume that legal qualification was an essential element in the act of selection. We would not assume that in it the law was not observed, and use this assumption to overthrow a proceeding, rather than presume what is reasonable to sustain it. The word would, from common understanding, import this; but, as used in such a proceeding, it has a legal signification, since section 14, c. 52, Code, says that if a jury be demanded, proceedings shall be according to chapter 42, and, turning to it, in section 17 we find that it says that "a jury of twelve freeholders shall be selected and impaneled," and hence the rise of the words, "selected in the manner required by law," in the record of a proceeding under section 17, implies that the jury were freeholders. And the word "tried," in the order, imports that the jurors were tested as to their fitness and qualifications under the law. In Stephen's Case, 4 Leigh, 679, a capital felony case, the record said the jury came and were "elected, tried, and sworn the truth of and upon the premises to speak," and it was held that it need not expressly show that they were freeholders. Here the record says more in saying they were selected and tried in the manner required by law. I think that if it had not said so the presumption would be that the law was observed, and so the Stephen Case holds. This view is supported by Bridge Co. v. Comstock, 36 W. Va. 264, 275 (15 S. E. Rep. 69) and Railroad Co. v. Patton, 9 W. Va. 658.
It is argued that there ought to have been an order to summon freeholders, and that we are to infer that the jury was formed from the jurors attending for the trial of causes generally. Section 17, c. 42, which applies, says the jury shall be selected and impaneled in such a manner as the court may direct, and that "the cause shall be tried as other causes." Trial includes the selection of a jury, and I construe this statute as authorizing the formation of such a jury from those in attendance; and section 6, c. 116, has the broad provision that "all jurors required for trial of cases in any Circuit Court including cases of felony, shall be selected" from those so in attendance for trials generally. Why except a jury in condemnation cases from these provisions? It is a case in the court, And then, how can we say in what way they were selected? No exception under this head was made at the time. We would presume they were selected as they should have been, as above stated.
2. But though the record is not vulnerable in failing on its face to show these things expressly, still the fact that some of the jurors were not freeholders is shown. Was this ground for new trial? No, because the exception came too late. The appellant knew its right to have freeholders on the jury. It could have had the court ask every juror as to his qualifications, or itself asked him. When the jury was being impaneled the court "called on the attorneys, if they had any objections to the jurors, or any of them, or to the manner in which they were sworn, to say so." The freehold qualification was not mentioned. It was a thing that could be either waived or required. It was thus waived. Are long, tedious, costly trials to be made nugatory, and justice delayed, for such causes? If the attorneys for the company did not know that the jurors were incompetent, they could have known by a few questions. It does not appear that they were ignorant of the jurors' disqualification, but, if they had been, I would say that it would make no difference, because, where a party is given by law the right to have jurors 3f certain qualifications, and sits by and does not ask them, especially when called on by the court to make any objections or suggestion, it is a waiver. Section 18, c. 116, Code, says that "no exception shall he allowed against a juror after he is sworn upon the jury on account of his age or other legal disability, unless by leave of the court," While the constitution gives the right to have jurors of certain qualifications, yet the legislature has the right to regulate the time of its enforcement to the end of the speedy administration of justice. Under this statute, in Thompson's Case, 8 Gratt. 637, it was held that objection to a vein reman in a criminal case is too late after he is sworn. In the condemnation case of Railroad Co. v. Ration, 9 W. Va 658, it was held that the objection that jurors were not freeholders came too late after verdict.
The second point of error assigned is that, on the motion for a new trial, because the amount of compensation fixed by the jury was excessive, the court gave Blake election between accepting a less sum or a new trial, and, she accepting that sum, the court refused a new trial, whereas it ought to have given it. This assignment of error is based on the cases of Vind v. Core, 18 W. Va. 1, and Unfriecl v. Railroad Co., 34 W. Va. 2(30 (12 S. E. Rep. 512); the latter following the syllabus of the former case.
The law winch these cases propound is that in all actions for damages, where the verdict is so enormous in amount as to clearly indicate prejudice, partiality, passion, or corruption in the jury in arriving at their conclusions, the defendant is entitled to a new trial, and it is error to allow the plaintiff to elect to take a less sum, suggested by the court, when there are no data before the court, by which the smaller sum can be rightly and definitely ascertained, but which is fixed by the discretion of the court, unaided by evidence.
This doctrine wo can not apply to the present case for two reasons: First, we do not regard the finding excessive so as to justify a court in setting it aside for that cause, and, this being so, of course there is no reversible error to the prejudice of the railroad company. The company took all the gravel bed, or all the gravel in a parcel of nearly six acres of land, on the Ohio river and on said railroad fifteen miles from the growing city of Huntington, and twelve miles from the Chesapeake & Ohio railroad, containing a deposit of thirteen feet of gravel, valuable in paving streets in towns and for railroad ballast. Removal of the ballast would remove the soil of the valuable land, and injure the residue of the tract. The...
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