Rueth v. State

• Decision Date: 10 July 1978
• Docket Number: No. 12132,12132
• Citation: 596 P.2d 75,100 Idaho 203
• Parties: Herbert L. RUETH and Kathleen J. Rueth, husband and wife, Plaintiffs- Respondents, v. The STATE of Idaho, Robert G. Kalb, Paul Keeton, John Eaton, Jack Hemingway, and H. Jack Alvord, as Commissioners of the Idaho Fish and Game Commission, and Joseph C. Greenley, Director of the Idaho Fish and Game Department, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 75

596 P.2d 75

100 Idaho 203

Herbert L. RUETH and Kathleen J. Rueth, husband and wife, Plaintiffs- Respondents, v. The STATE of Idaho, Robert G. Kalb, Paul Keeton, John Eaton, Jack Hemingway, and H. Jack Alvord, as Commissioners of the Idaho Fish and Game Commission, and Joseph C. Greenley, Director of the Idaho Fish and Game Department, Defendants-Appellants.

No. 12132.

Supreme Court of Idaho.

July 10, 1978.

Rehearing Denied June 11, 1979.

Where prevailing party failed to show clearly what off record and out-of-courtroom communication was between trial judge and jury, it was impossible to say that losing party was not prejudiced by such communication, and thus judgment entered had to be reversed. Rules of Civil Procedure, rules 51(b), 61, 77(b).

On Motion for Rehearing

Constitution allows right of eminent domain only where there has been ascertainment and payment of just compensation, and same constitutional provision provides right in property owner to initiate eminent domain proceeding where he alleges that his private property has been taken without ascertainment of just compensation followed by payment. Const. art. 1, § 14.

In eminent domain proceedings, all issues other than just compensation are for resolution by trial court; however, bifurcated trial of issues is not always necessary. Const. art. 1, § 14.

In eminent domain proceedings, all issues other than just compensation are for resolution by trial court; however, bifurcated trial of issues is not always necessary. Const. art. 1, § 14.

In property owners' action against state for alleged inverse condemnation, submission to jury of question of taking was error. Const. art. 1, § 14. Wayne L. Kidwell, Atty. Gen., Boise, T. J. Jones, III, Legal Counsel for Idaho Fish & Game Commission, Boise, for defendants-appellants.

Peter J. Boyd and Phillip M. Barber of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for plaintiffs-respondents.

BISTLINE, Justice.

The State of Idaho's Fish and Game Department appeals a jury verdict in favor of plaintiffs-respondents Rueths. The Rueths brought suit in October, 1972, claiming that the Fish and Game Department's operation of a water diversion structure and resultant flooding "effected a complete loss of value of said lands of plaintiffs and, therefore, constitutes a taking of said lands of plaintiffs by defendants." The prayer of plaintiffs' complaint asked that a jury trial be had to ascertain and assess "the plaintiffs' damages by reason of the loss of the total amount of property taken by the Defendants." Fish and Game denied the taking and denied any responsibility for the alleged flooding.

After plaintiffs and defendant rested, the trial court gave a number of instructions as to what the jury might find constituted a taking. The jury was also instructed that, if they found a taking, the measure of damages "is the difference between the fair market value of plaintiffs' property before the taking and the fair market value of plaintiffs' property immediately after the taking."

The jury returned a general verdict awarding the plaintiffs damages in the sum of $127,000. The jury was not requested to determine the extent of the taking if less than total, nor the before and after values of the plaintiffs' property. The judgment entered on the verdict merely recites the verdict, and judgment in that amount was entered in plaintiffs' favor. The judgment, as with the verdict, does not establish the property or property right taken by the Fish and Game Department. The record before us discloses no post-judgment motions. This appeal followed.

On appeal, the Fish and Game Department challenges the sufficiency of evidence to support the jury verdict of a "taking" as well as the amount of damages in the resulting award. The Department likewise assigns as error numerous trial court rulings regarding admissibility of evidence, instructions to the jury and the denial of a jury view of the subject premises. The Department urges also that the trial court's communications with the jury outside the courtroom and off the record constituted reversible error. Our ruling on this latter issue is dispositive of the appeal.

On September 27, 1976, pursuant to I.R.C.P. 60(a), appellant Fish and Game Department filed in this Court a motion to correct clerical error, requesting that the record on appeal be corrected so as to show that after the jury retired to consider this case on the afternoon of October 10, 1975, they sent a written message to the trial judge requesting further instructions and that written instructions were then given to the jury in the absence of counsel for the Department. In reply to this motion, counsel for Rueths stated that he had "no objection to the entry of a minute entry memorializing the occurrence" but insisted that such minute entry not "reflect the erroneous statement of facts contained in the supporting affidavit" of counsel for the Department. Accordingly, this Court, in an order dated November 9, 1976, granted the motion and remanded the cause to district court with directions to correct the record. In addition, we ordered that

if the written material in question is in possession of the District Court that it be forwarded with the corrected record to this Court, and if such written material is not available that the District Court forward the next best evidence relative to the Jury's inquiry and the Judge's response to this Court.

On remand, it was determined that no official record had been kept of the communication from the jury to the trial court or the communication given by the court to the jury, and that the original writings themselves had both been destroyed. Consequently, the parties attempted to reconstruct the events by way of affidavits. The trial judge, the bailiff, the court reporter and the clerk of the court all averred that they had "no independent recollection" of the occurrence. Counsel for the Rueths stated his own recollection as follows:

Immediately following the submission of the case to the jury in this action, counsel for the defendants, the Fish and Game Commission, advised your affiant and everyone else in the courtroom that he was hurrying to catch an airplane to attend a football game. Your affiant believes that the football game in question was scheduled for the following day in Moscow, Idaho. From that time forward, your affiant did not again see counsel for the defendants, the Fish and Game Commission, anywhere on or about or near the courthouse in Caldwell, Idaho.

In the early afternoon following the submission of the case to the jury, the bailiff requested that I see the District Judge. When I arrived at the District Judge's chambers, Judge Dunlap was standing outside with a note from the jury. He was asking his bailiff, clerk and reporter, as well as your affiant, where counsel for the defendants was. I responded that counsel for the defendants had gone to a football game in Moscow.

Counsel for the Rueths remembers that he told the judge "the preferable route to avoid error would be to make no further instructions, but to advise the jury to follow the instructions which it already had." According to the recollection stated in counsel's affidavit, the district judge agreed that this was the correct response and "then returned the note to the bailiff and told the bailiff to tell the jury to continue to look only to the instructions which had been given them."

Counsel for the Fish and Game Department, by affidavit, states: that he was present in the courthouse from 11:00 a. m. when the jury retired for its deliberations until noon at which time the jury took a lunch break as did counsel; thereafter, counsel along with a Department employee purchased a slide viewer to aid the jury should it care to examine certain slide exhibits more closely; after delivering the viewer to the bailiff around 1:00 p. m., counsel again passed the time in conversation with Department witnesses and employees in the courthouse; at approximately 2:00 p. m., he joined Judge Dunlap in his chambers for coffee; counsel recalls the judge as being surprised to see him still on the premises; counsel states that he remained in the courthouse until approximately 2:45 p. m. at which time he left for his office in Boise; a Department representative, Mr. Von Steen, was instructed to contact counsel by phone if any verdict was brought in by the jury; counsel then drove to Boise, dropped off a passenger and proceeded to his office where he arrived at approximately 3:30 p. m.; his secretary informed him that there had been no calls from Von Steen concerning the Rueth case; after doing some office work and confirming that there would be no stand-by room on the evening flight to Moscow, counsel went home and, shortly before 5:00 p. m., left by car for north Idaho. Based on the above account and the fact that the jury returned its verdict at 3:41 p. m., counsel speculates that the "early afternoon" communication between the judge and jury may well have taken place while he was still in the courthouse and that the misunderstanding as to his whereabouts may have discouraged any real attempt to locate him.

I.

The question is whether the procedure which took place after the cause had been submitted to the jury constitutes reversible error. Plaintiffs-respondents Rueths argue first that, by absenting himself from "the courthouse, the city, and the county in which the case was being tried," counsel for the Fish and Game Department waived any objection to the proceedings which transpired in his absence. In support of this proposition, respondents cite Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106, 1111 (Mo.App.1939):

Upon being advised that counsel had left the building, the court proceeded to listen to the inquiry of the one juror who was acting as spokesman for the entire group, and we think the court is in no manner to be criticized for not having held all other parties waiting until such time...