United States v. KANSAS CITY, MO.

• Decision Date: 17 October 1946
• Docket Number: No. 13352.,13352.
• Citation: 157 F.2d 459
• Parties: UNITED STATES v. KANSAS CITY, MO.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F.2d 459 (1946)

UNITED STATES v. KANSAS CITY, MO.

No. 13352.

Circuit Court of Appeals, Eighth Circuit.

October 17, 1946.

Dwight D. Doty, Atty., Department of Justice, of Washington, D. C. (David L. Bazelon, Asst. Atty. Gen., of Washington, D. C., Morgan M. Moulder, Sp. Asst. to the U. S. Atty., of Kansas City, Mo., and Roger P. Marquis, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.

Benjamin M. Powers, Associate City Counselor, of Kansas City, Mo. (David M. Proctor, City Counselor, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This was a proceeding in condemnation in which the Government sought to acquire a perpetual easement for the construction and maintenance of an electric power transmission line over certain lands of the City of Kansas City, Missouri, for use in connection with the Sunflower Ordnance Works. The property over which the easement was sought is an improved park of 36.58 acres, and the easement to be acquired for this transmission line was described as included within the boundary lines of a strip of land 75 feet wide, being 37.5 feet on each side of the center line, and certain adjoining strips or parcels of land described with and as a part of said center line. This transmission line carried 115,000 volts on poles with the wires 13½ feet apart, the wires being carried on poles from 50 to 110 feet in height. The park had been acquired and improved by the city at a cost exceeding $1,000,000.

Commissioners were appointed under the procedure prescribed by the statutes of Missouri, and they made report fixing the value of the easement at $3500. Exceptions to this report were filed by the government and a trial de novo was had to a jury. There was testimony on behalf of the city that the total value of the land and improvements exceeded $1,000,000, and that the construction and maintenance of this power line damaged the park's value from 20 to 25 per cent. The testimony of the government was to the effect that the damage caused to the city's property was nominal. The jury returned a verdict of $10,000. Before the entry of judgment on this verdict the government moved for a new trial and in support of its motion filed affidavits of certain of the jurors for the purpose of showing that certain of them had privately viewed the premises and had received communication in the nature of a newspaper clipping disclosing the award of the commissioners and the alleged willingness of the United States to settle for that amount. The motion for new trial being overruled judgment was entered on the verdict and this appeal followed.

In seeking reversal, the government complains only of the action of the court in denying its motion for a new trial. It is stated in the government's brief that the question presented is whether the trial court abused its discretion in not granting a new trial because several of the jurors had a private view of the property condemned and one of the jurors read to certain other jurors from a newspaper which gave the amount of the commissioners' award and contained a statement that the government was willing to settle for that figure.

The appellee vigorously challenges the competency of affidavits of jurors to impeach their verdict and as the trial court filed no opinion in denying the motion for a new trial, we can not determine what, if any, weight the court gave to these affidavits in considering the motion for new trial. In this state of the record we must assume that the court considered only competent evidence. It should be noted that there is no contention that the jury was tampered with, nor that the appellee or its counsel had any knowledge of any misconduct on the part of any of the jurors in the trial of this proceeding. Before proceeding to an examination or consideration of the contents of the affidavits of five different jurors it may be stated as a general rule that the testimony or affidavits of jurors seeking to impeach their own verdict should not be considered on a motion to set aside the verdict on grounds of irregularity or misconduct on the part of the jury or some one or more of the panel. Barry v. Legler, 8 Cir., 39 F.2d 297; McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Stewart v. United States, 8 Cir., 300 F. 769; Manhattan Oil Co. v. Mosby, 8 Cir., 72 F.2d 840; Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036; Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47. The rule is well stated in 53 American Jurisprudence, Sec, 1105, pp. 769, 770, from which we quote as follows:

"The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward. It is to prevent overzealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, the jurors are permitted to impeach verdicts which they rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath.

"Testimony of the jurors to impeach their own verdict is excluded not because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent than to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman. The rule that a verdict cannot be impeached by the testimony of a juror is generally adhered to where it is sought to impeach a verdict on grounds of misconduct on the part of the juror or his fellow jurors, despite apprehension expressed in many cases that such rule sometimes serves the cause of injustice."

There are certain refinements in the nature of exceptions recognized by some courts to the effect that affidavits of jurors may be received to show matters occurring during the trial, not falling within the legitimate issues of the case. But in our view of the record we need not pursue this line of reasoning because we think the showing was entirely inadequate to require the court in the exercise of its judicial discretion to grant appellant's motion. The unauthorized inspection by certain of the jurors during the progress of...