State Highway Commission v. Fry
| Decision Date | 22 October 1969 |
| Docket Number | No. 6916SC428,6916SC428 |
| Citation | 6 N.C.App. 370,170 S.E.2d 91 |
| Parties | STATE HIGHWAY COMMISSION, v. Mattie Miller FRY. |
| Court | North Carolina Court of Appeals |
Mason, Williamson & Etheridge by James W. Mason and Kennieth S. Etheridge, Laurinburg, for defendant appellee.
Commission asserts as error (1) the judge's overruling of its motion to dismiss jurors who had served in a condemnation case tried just before this case and involving land next to the land in the instant case; (2) the judge's refusal to allow a motion to strike testimony of the son of the landowner regarding the value of the land in question; (3) failure of the judge to instruct that the son of the landowner was an interested witness and that his testimony should be scrutinized with care; (4) failure of the judge to set aside the verdict as being against the greater weight of the evidence; and (5) the signing of the judgment by the judge.
Immediately prior to the trial of this case another highway condemnation case was tried. (State Highway Commission v. Yarborough, Administrator of Mathews (Mathews), N.C.App., 170 S.E.2d 159 filed in this Court the 14th day of July, 1969.) At the commencement of this trial, there were 16 persons on the jury panel, together with the 12 jurors who had served in the Mathews case. The landowner passed on the jurors first. A jury was not selected from the 16 by the landowner, and the panel had one of the jurors from the Mathews case on it when the Commission began to pass on jurors. The Commission excused one juror and then another juror from the Mathews case joined the panel. Thus the jury as finally selected had 2 members from the jury in the Mathews case.
The Commission in apt time moved that additional jurors be summonsed. The trial judge refused this motion and the record shows:
'The court further states that if in the examination of the first or any of the other jurors of the twelve from the Matthews (sic) case it should appear to the court's satisfaction that any one or more of the jurors cannot be fair and impartial to the State Highway Commission and the State of North Carolina by virtue of having served in the Matthews (sic) case, that it will then disqualify all of the Matthews (sic) twelve and order a special venire.'
The basis of an objection to a juror serving in cases which are similar or involve the same parties is bias or prejudice resulting from the prior association with the facts and issues of the second case. The juror is supposed to have formed an opinion under oath about the particular set of facts which were placed before him in the first case. 31 Am.Jur., Jury, § 226. However, we feel that this rationale is not persuasive in the present circumstances before us. The facts are distinguishable from those in Baker v. Harris, 60 N.C. 271 (1864).
For one thing, the facts and issues of the two cases are different. Although the properties involved in the two cases adjoin each other, the value of each is a separate and distinct question. It cannot be denied that the Commission was a party to each proceeding. The thrust of this objection by the counsel for the Commission seems to be, however, that the information imparted to the jurors in the Mathews case about the loss of access in the taking of the Fry property would cause these jurors to be prejudiced against the Commission in the Fry case if they served again--especially in view of the fact that a large verdict was rendered against the Commission in the Mathews case. This contention is weakened, however, by the fact that the Commission stipulated 'that prior to the taking * * * the property in question had access slong Highway 74 for its full length * * * that after the taking there was no access to the property from Highway 74. * * *'
Secondly, the judge very carefully questioned the two jurors concerning what they remembered about the Fry property from the Mathews trial. Mrs. Carlyle stated that she did not remember anything which would keep her from giving a fair trial to the State Highway Commission in the Fry case. Mrs. Starling said that she remembered the Fry property being mentioned in the Mathews case but that this would not prevent her from giving a fair trial in this case. The fact that a juror has served in a case which has some similarity to the case in which he is now asked to serve does not automatically disqualify him as to the latter trial. We feel that whether a special venire should have been called was a matter resting in the sound discretion of the trial judge, and no abuse of that discretion has been shown. On the contrary the judge conducted a...
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Lea Co. v. North Carolina Bd. of Transp.
...before and immediately after the taking by a person familiar with the property. See G.S. 136-112 (1981); Highway Comm. v. Fry, 6 N.C.App. 370, 374, 170 S.E.2d 91, 94 (1969). The finding is thus supported by competent evidence and is conclusive on appeal. Williams, supra; Worthington, Defend......
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Knott v. Washington Housing Authority of the City of Washington, N.C.
...such familiarity with the property to be valued as will enable him to make an intelligent estimate of its value. Highway Comm. v. Fry, 6 N.C.App. 370, 170 S.E.2d 91 (1969). In the case at bar, plaintiff's son managed his mother's property and visited the land about four times per year. More......
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City of Burlington v. Staley, 8418SC1232
...as to his opinion of the value of the land taken and as to the contiguous lands before and after the taking. Highway Comm. v. Fry, 6 N.C.App. 370, 170 S.E.2d 91 (1969); Highway Commission v. Privett, 246 N.C. 501, 99 S.E.2d 61 (1957). Thus it is not necessary that the witness be an expert, ......
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Craven County v. Hall, 873SC128
...vicinity, was nevertheless competent to give an opinion as to the value of the land due to his familiarity with it. Highway Comm. v. Fry, 6 N.C.App. 370, 170 S.E.2d 91 (1969). Thus, we hold that defendants' son should have been permitted to give his opinion as to the value of the property b......