Williams v. New York, P. & N.R. Co.

• Citation: 137 A. 506,153 Md. 102
• Decision Date: 08 April 1927
• Docket Number: 52.
• Parties: WILLIAMS ET AL. v. NEW YORK, P. & N. R. CO.
• Court: Court of Appeals of Maryland

137 A. 506

153 Md. 102

WILLIAMS ET AL. v. NEW YORK, P. & N. R. CO.

No. 52.

Court of Appeals of Maryland

April 8, 1927

Appeal from Circuit Court, Wicomico County; Joseph L. Bailey, Judge.

"To be officially reported."

Condemnation proceeding by the New York, Philadelphia & Norfolk Railroad Company against Elmer C. Williams and another, in which Harry A. Wilson was made a party defendant. Judgment assessing damages, and defendants appeal. Reversed, and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

F Leonard Wailes, of Salisbury, and William L. Rawls, of Baltimore (Benjamin A. Johnson, of Salisbury, on the brief) for appellants.

George H. Myers, of Princess Anne (Miles & Myers, of Princess Anne on the brief), for appellee.

ADKINS J.

Elmer C. Williams and Edith L. Williams, two of the appellants, were owners of a tract of land located in or immediately adjoining the city of Salisbury, Wicomico county, Md., which they had platted and were holding for sale in lots. Appellee desiring to purchase 3.809 acres of the land "for the purpose of additional side tracks, delivery sidings, freight station, and additional facilities for receiving and delivering freight in said town of Salisbury, " and, being unable to reach an agreement as to price with the owners, instituted condemnation proceedings. In the early stage of the pleadings, in the answer filed by Elmer C. Williams, it was alleged that "a part of said land has heretofore been sold, * * * the purchaser of said land being Harry A. Wilson," and on a supplemental petition he was made a party defendant by order of court, and in the course of the trial the following agreement of counsel was filed:

"It is agreed by the parties hereto that, from the total amount of damage which the jury shall find is sustained by the defendants by reason of the taking of the property sought to be condemned in this case, there shall be awarded to Harry A. Wilson such sum, if any, as the jury may find he is entitled to, and all the balance of said total damages shall be awarded to Edith L. and Elmer C. Williams, jointly, and it is agreed that the petitioner shall be permitted to retain so much of the amount allowed Elmer C. and Edith L. Williams as may be necessary to pay and have released the mortgage of Edmund H. Derrickson, for $1,700, with interest from September 8, 1926, and the mortgage of Sallie W. Martindale for $600, with interest from June 15, 1926.

Attorneys for Petitioner:

Miles & Myers.

Levin C. Bailey.

Attorneys for Defendant:

Ellegood, Freeny & Wales.

Benj. A. Johnson."

The case was tried by the court and a jury in the circuit court for Wicomico county. The finding of the jury is shown by the statement of the trial judge contained in the twentieth bill of exception:

"After argument by counsel, the jury retired to consider their verdict and later returned to the courtroom and rendered their verdict to the court, announcing that they found for the plaintiff as to the right to condemn and assessed the damages of Elmer C. Williams and Edith L. Williams, defendants, at $8,618, and assessed the damages of Harry A. Wilson, defendant, as $1,400. The verdict was recorded, the jury dismissed, and court adjourned.

Within a few minutes it was reported to the court that the jury intended that the $1,400 for Harry A. Wilson should be taken out of and deducted from the $8,618 awarded to Elmer C. Williams and Edith L. Williams. The court was immediately reconvened, and the sheriff directed by the court to have the jurors return to the jury box.

As the jurors went out of the courtroom, they were given by the clerk an order for their pay on the county treasurer, whose office was down the steps from the courtroom, and they went to the county treasurer's office to get a check for their order. It was there that eight or nine of them were found still together and were directed to return to the court. Three or four of the jurors had gotten out of the courthouse, and it was around twenty minutes before they were all gotten together again. The defendants through their counsel objected to the action of the court in having the jury reassemble.

The jurors were informed by the court that it had been brought to the court's attention that the verdict as taken by the clerk was not perhaps as they intended it should be. The clerk was instructed to call over the jury and again take the verdict. Again the jury returned their verdict for the plaintiff as to the right to condemn and assessed the damages of the defendants Elmer C. Williams and Edith L. Williams at $8,618, and assessed the damages of the defendant Harry A. Wilson at $1,400, and stopped. They were asked if that was their full verdict. After some apparent talk among the jurors to themselves the foreman announced that the $1,400 assessed in favor of Harry A. Wilson was to be deducted from the $8,618 assessed in favor of Elmer C. Williams and Edith L. Williams.

The jurors thereupon were informed that the court preferred them to make their own calculations and to render their verdict for the exact amounts the different defendants were to get without any deductions.

The jurors retired to their jury room and therefrom they returned to the jury box and rendered their verdict in favor of the petitioner upon the right to condemn and assessed the damages of the defendants Elmer C. Williams and Edith L. Williams at $7,218, and assessed the damages of the defendant Harry A. Wilson at $1,400.

Under the direction of the court, the jurors were each asked by the clerk if the verdict as then and there rendered was the verdict upon which they had agreed before leaving the jury box in the first instance, and to the clerk's inquiry each juror answered separately for himself that it was.

To the action of the court in reconvening the court, reassembling the jurors, and permitting them to correct their verdict, as above set forth, the defendants excepted and pray the court to sign and seal this their twentieth bill of exceptions, which is accordingly done this 7th day of January, 1927.

[Signed] Joseph L. Bailey. [Seal.]"

The action of the court in reassembling the jury and permitting them to correct their verdict in the circumstances above set out was, in our opinion, reversible error. This conclusion is unavoidable if we are to adhere to the rule announced by this court in Gaither v. Wilmer, 71 Md. 361, 18 A. 590, 5 L. R. A. 756, 17 Am. St. Rep. 542, in an opinion filed by Judge Miller, in which earlier decisions of this court are reviewed. That case remains unaffected by any subsequent decision, and we have no inclination to modify it. Its reasoning is, in our opinion, unanswerable. Harris v. Hipsley, 122 Md. 418, 89 A. 852, cited by appellees is not in conflict, but expressly recognizes the principle announced in the earlier case.

There is a suggestion by appellees that the verdict as originally rendered by the jury does not appear by the docket entries to have been recorded; but the trial judge distinctly states in the bill of exception that it was, which is...