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Marsh et al. v. Clark County Commissioners et al.

Sixth-Because it having been made to appear to the court and jury that the principal part of the line upon which the proposed ditch would be established is upon the line of an already legally and properly established ditch, established by the township trustees of Pleasant township.

Seventh-Because the proposed ditch as ordered by the county commissioners, does not conform to the line petitioned for by the defendant, Andrew Phelan, and because it extends to a considerable distance further south and beyond the line petitioned for.

Eighth-The said jury or a majority of them, formed an opinion, and made up their minds as to the issue in this case, and expressed said opinion before the conclusion of the trial and before the hearing of the testimony, contrary to the orders of the court and the law, and for other misconduct of the jury and of the prevailing party.

The questions sought to be made by the second, third, sixth and seventh, ante 290, of the above reasons have received the consideration of the court in a former hearing of this case and will not be further considered herein. The others will be considered in their order.

First-In considering the first, the court not having all the evidence bofore it which was properly considered by the jury, labors under a very great difficulty in determining whether the verdict is against the weight of the evidence.

The statute provides that:

(Section 4467) "The probate judge shall administer to the jurors an oath faithfully, impartially, and to the best of their ability, and from actual view of the premises along the whole route of the improvement, to examine and determine the particular matter appealed from, and to render a true verdict according to the facts appearing to them from actual view of the premises, and the evidence, under the charge of the court."

And the Supreme Court in considering this section, Williams v. Lockoman, 46 Ohio St., 417, says: "The provisions of sec. 4467 manifestly contemplate, that by an actual view of the premises the jury shall be enabled not only the better to apply the testimony disclosed at the trial, but also be aided by their own personal knowledge of the facts as derived from an actual view of the premises, in examining and determining the particular matter appealed from."

What the jury saw in this actual view the court does not know. Oral testimony might disclose many of the things viewed by them, but it is safe to say that in no case would all be disclosed. And even if it were possible to disclose all by oral testimony it is extremly doubtful if the judgment formed from such testimony would be as good—as near correct-as that formed from the actual sight. The lay of the land, the fall of the water, its present drainage, the surrounding country, the usefulness or practicability of the proposed ditch, are matters which cannot, and evidently this was the intention of the legislature, be as well determined by hearing them described as by actually viewing them. It is extremely questionable whether any other evidence than that acquired from the view is absolutely necessary to be produced to the jury in order to enable them to render a verdict. "After the jury has fully examined the premises either party may be heard, in person or by counsel and may offer evidence to the jury." (Sec. 4468.)

If neither party is compelled to produce any testimony, he may rely solely upon the view. If this be true, how is the judge able to say that a verdict rendered by a jury in locating the ditch is against the

weight of the evidence? It may be, as perhaps it was in this case, that considering only the testimony adduced in court, and before the judge, the verdict is not strongly supported by the evidence.

Where the jury is to view the premises and form their verdict from their own knowledge as well as from the testimony, the difficulty of setting aside a verdict because not supported by, or being contrary to the evidence, has been fully recognized by the courts.

In Parks v. Boston, 15 Pick. (Mass.), 198, 199 and 200, it is said: "The whole city being within an easy walk of the court, it was manifestly a wise and convenient provision that after having taken a view of the place, they should return into court and have the cause there conducted before the judge, and in conformity with the usual forms, rather than elsewhere before the sheriff. But the object of the inquiry is still the same: it is to estimate the plaintiff's damages, and upon view, if either party desires it. The jury must therefore, I think, exercise their own knowledge and experience fully; and perhaps in most instances, with a competent and intelligent jury, such judgment could not be much aided by the estimate of others, though under oath, in the form of testimony. It may follow as a consequence, as suggested by the learned counsel for the complainant, that it would be difficult, if not impossible, to set aside a verdict in such a case on the ground of being contrary to the weight of the evidence given on the trial."

In a condemnation proceeding in Michigan (Toledo R. R. v. Dunlap, 47 Mich., 466) it was said:

"Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge, from a view of the premises, and their experience as free-holders, quite as much as the testimony of witnesses as to matter of opinion. And while an appellate court is bound in such cases to set aside proceedings which appear based upon false principles, it cannot properly deal with rulings as if they were excepted to on a common law trial, or dispose of the controversy on a mere technical motion."

In a like proceeding in Nebraska (Omaha R. R. Co. v. Walker, 17 Neb., 432), it was said:

"It is difficult to review the judgment as being against the weight of the evidence, because all the evidence before the court cannot, from the nature of the case, be incorporated in the record; and in these cases there is no such discrepancy between the evidence in the records and the verdicts as to justify the court in setting them aside, which the court would not do unless it was clear that the jury had erred."

In the case at bar the testimony adduced on the hearing in court was conflicting, and if considered alone would hardly justify the verdict, but the court is unwilling to say that the verdict is contrary to the weight of the evidence, when the court has not had all the evidence before it that was properly before the jury. And it is not improbable, but that the legislature may have intended when this power to view was given the jury, that they were to be the sole judges on this questionunder proper instructions of the court, and unless the verdict could be impeached for fraud, or that it was manifestly wrong and irreconcilable with well known facts and principles, it could not be set aside. Although the law relating to ditches nowhere expressly authorizes probate courts to set aside the verdict of the jury, yet there is no doubt but that the probate court has such power, and will do so for sufficient cause, and in determining the matter the same rules will be applied as are applied

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to juries in the common pleas courts generally. Trimble v. Koch, 26 Ohio St., 438.

It is not complained in this case, that upon the third and fourth propositions submitted to the jury, i. e., "The compensation for land appropriated," and "damages claimed to property affected," that the verdict is not supported by the evidence.

It is upon the first and second propositions, i. e., "whether such ditch will be conducive to the public health, convenience or welfare," and "whether the route thereof is practicable," that argument has been made to show that the verdict of the jury was against the weight of the evidence.

In determining these two questions submitted to them, it was not intended by the legislature, that the jury should perform the functions of a common law jury, or in other words, that they constituted a jury as recognized in the constitution. If this be not true, the statute is unconstitutional when it provides that less than an unanimous verdict will support a finding in favor of the ditch. It is rather to be presumed that the duty intended by the law to be placed upon the jury, in this respect, was that which ordinarily and generally devolves upon viewers,

etc.

If the law is constitutional in its provision that an affirmative verdict of eight will support the finding in favor of the ditch, in this case where the verdict is the affirmative finding of the entire twelve, one-half more than is necessary, even if the court could set the verdict aside, because against the weight of the evidence, it is questionable whether it would be justified in so doing. Either these men's opinions, formed from actual view under the instructions of the court, as provided by the statute, regardless of the evidence produced in court, are of some value, or it was an absurdity to require them to at all view the premises, and yet they could not have performed their duties as required by the law without such "actual view."

Besides, the county commissioners, as appears from the record before us, also unanimously decided in harmony with the verdict of the jury. Thus we have the opinion of fifteen men outside of the engineer, and the defendant and his witnesses, that the ditch is necessary, and in harmony with the verdict. The evidence produced in court presents but little, if anything, more than what could have been, and it is fair to presume was, learned and taken into consideration by the jury in their actual view of the proposed improvement. The court is unwilling to say that all these men are wrong, by reason of the evidence produced in court by the plaintiff and his witnesses in this case. And, if I had the power in such a case as this, I would not set aside the verdict of the jury as being against the weight of the evidence.

4 and 5. The evidence adduced to show misconduct of the defendant or of the jury showed the following facts:

The jury in charge of the sheriff and the engineer drove out sixteen miles to view the ditch. The engineer having been there before, and somewhat familiar with the premises, suggested that they drive to the defendant's house, which was near the line of the ditch. When they arrived, Phelan was not at home, but they put up their horses and started to view the ditch. When about half way on the line they met Phelan. The sheriff immediately went and informed him that he must have no conversation with the jury upon any matter concerning the proposed ditch. Phelan followed along with the jury a short distance, and then

returned to his home or his work; after the jury had finished their view, it then being about three o'clock in the afternoon, and many of the jury having had nothing to eat since morning, the engineer went to Phelan and asked him if he could not set them out a lunch of bread and butter, as it was a long drive to Springfield, there being no hotel or public house in the community. Phelan at first demurred, and said that he did not like to do it, as the court had directed that he should have nothing to do with the jury. The engineer said to him that the view was now over, and that nothing that he might do would have any difference with the jury. Phelan said that he would go in and see if his wife had anything, and after a while he came out and invited the jurors in. It was a very warm, dry, dusty day, and some of the jurors, not being used to outdoor exercise, complained to the engineer that they were not used to that kind of work, and they were fatigued, and did not feel well, and said they would like to have a drink, and inquired if Phelan kept any whiskey. The engineer replied that he knew Phelan kept it, and then went to Phelan and asked him if he had any whiskey, saying that some of the jury were not feeling very well. Phelan brought out a jug containing a pint, or half pint of liquor, poured some in a glass and left the room. The sheriff and some four or five of the jury drank liquor. They finished their lunch, hitched up their horses and returned to Springfield. During all the time they were at Phelan's he had no communication with any one of the jury upon any subject whatever. He was not present in the room when the liquor was drank, nor at any time with the jury, or any member of it, in the absence of the engineer or sheriff. Is there sufficient reason here shown to set aside the verdict on account of misconduct on the part of either Phelan or the jury? It is very evident that no juror became intoxicated, or that he drank enough to prevent him from properly considering the case. The view of the premises had been made, and the jury were to meet the second day thereafter to hear evidence, and the charge of the court, and then give their verdict. If set aside then, it must be upon the ground that the courtesies extended them and the favors received by them were such as to influence their decision in his favor. The conduct of an interested party towards jurors is always closely scrutinized by the courts, but not always with the same degree of vigor. In Pittsburg, etc., R. R. Co. v. Porter, 32 Ohio St., 328, it was held that "where it appears during the progress of the trial, that a prevailing party or his attorney has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it is clearly shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror." The mere fact that a juror in a civil case drank intoxicating liquor during an adjournment of court, while the trial was in progress, is not a sufficient reason for granting a new trial, unless there be reason to suspect that it may have had some influence on the final result of the case."

In this case it was shown that after an adjournment, about ten o'clock at night, during the progress of the trial and before the case was finally submitted to the jury, one of the jurors and one of the counsel for the plaintiff, on the way to their respective lodgings casually met, and while passing a saloon, the attorney remarked that he was tired and thought he would like a glass of ale, and asked the juror if he drank ale. On receiving an affirmative reply he invited him to go in and join him in taking a glass of ale, which they did, remaining there about five min

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Marsh et al. v. Clark County Commissioners et al.

utes, and drinking but a single glass each, during which time, nor at any time while they were together, was any allusion made to the case.

In the opinion it is said, "More especially the least attempt on the part of the prevailing party or his attorney, to influence or corrupt a juror, though it be unsuccessful, is held to have the effect to vitiate a verdict rendered in his favor, as a just punishment for his misconduct. The rule is founded in public policy, the better to preserve the purity of trial by jury. Hilliard on New Trials, 202 ch., 10 and 6. But if the act done was mere accident or inadvertance, without any improper design, and if it can safely be assumed that it had no improper influence on the mind of the jurors, in such case there can be no just or reasonable ground to disturb the verdict. Vaugh v. Dolson, 2 Swan, 348. Accordingly, it has been held, that the casual treating of a juror by the prevailing party or one in his employ, without any design to bias or influence him, where there is no cause to believe that the juror was influenced by the occurrence, is not a ground for a new trial. Hilliard on New Trials, ch. 10, 88."

This is the only case in Ohio on the subject. John v. Griem, 17 Neb., 447, is somewhat similar to the case at bar. There it was held that "where a jury was sent in charge of a bailiff of the district court, with the sheriff and county surveyor, a distance of eight miles to view and examine real estate alleged to be damaged by the overflow of water, and while examining the land, it being noon, the bailiff, by order of the sheriff, procured and caused to be served dinner at the house of the defendant in error, without his solicitation or the solicitation of the jury, there being no other convenient place to procure it, the dinner being obtained by the bailiff and paid for by him, and where it is affirmatively shown that the defendant in error had no conversation with the jury upon the subject of the case on trial, that no misconduct on the part of the defendant in error, or of the jury, was shown which would require a new trial.

In Bennett v. Gladfelt, 11 N. E. R., 253, (Ill. Sup. Ct., 1887), it appears that pending the trial, and in the evening after the adjournment of the court, one of the jurymen was seen near the courthouse alone with the plaintiff, riding in the direction of the home of both. The explanation shown by the affidavits of both that they both lived in the same place, and the juror having to go home in the same general direction of as the plaintiff asked permission of the latter to ride with him in his wagon, and the plaintiff consented, after being informed by counsel that there would be no harm in it if they did not talk about the case, and nothing was said about the case. "There was a clear impropriety in the association of the party with the juror. * * * While what took place meets with our strong disapproval, we hardly feel that we should go so far as to visit it with the penalty of reversal of the judgment."

In Gurney v. Minn. R. R. Co., 43 N. W. R., 2 (Minn. Sup. Ct., '89), "On the morning that the jury went out to view the premises and before they started some of the jurors made inquiry as to who was going to 'set up the cigars'; that the bailiff replied, 'Well, I will go and get a box, and I will run the risk of getting it from the railroad company.' That he went and got a box and distributed them among all who wished to smoke. That five or six weeks afterwards, when he sent in his bill to the railroad for the carriages he included the cigars, and it was paid. The only thing that connected the railroad with it was that they paid