Clary v. Blondel

178 Iowa 101 | Iowa | 1916

Ladd, J.

‘ tabiishment.damages: supported verdict: appeal. Blondel, who petitioned for the establishment of the highway, appeals from the order of the district court fixing the damages resulting from the appropriation of a strip of land 40 feet wide, along the south side of Clary’s farm, or 162 rods long, at $1,209, and contends: (1) That the amount is excessive, and (2) that the verdict should have been set aside as not representing the deliberate finding of the jury. Though the amount the jury estimated Clary would suffer as damages seems large, there is ample evidence in the record to sustain the finding, and this precludes any interference by this court.

2. new teial : grounds: quotientverdict: evidence. It appears that each of'the jurors set down what he thought should be allowed Clary. These estimates were added and the total amount divided by the number of jurors. The quotient was not satisfactory to some of the jurors. They again agreed that each should set down what he thought should be the damages allowed, and ascertain the average. ' In separate affidavits, identical in language, three of the jurors say that it was further agreed:

‘ ‘ That the average of the amount should be the amount of the verdict. This was done, and the amount found to be $1,209. Each then orally signified his willingness to accept that sum and return it as the verdict.”

On the other hand, three jurors in one affidavit, and a fourth juror in a separate affidavit, swore that it was “agreed that each should again set down the amount which he thought the plaintiff should have, and that the amounts should be averaged, but that none of the 'jurors agreed to be bound by this second ballot. This was done, and the amount of $1,209 arrived at. Then this amount was deliberated upon and fully and candidly talked over and discussed by the jurors, some being in favor and some apparently opposed thereto, and a ‘yes’ and ‘no’ ballot was proposed and taken, to determine whether $1,209 should be the verdict, and the result of the ballot was unanimous for said verdict in the sum of $1,209. ’ ’

3. trial: verdict: examination^of 3m Affiants were not orally examined, as is always desirable in such eases; for usually affidavits are prepared by those interested on one side or the other, and jurors do not always examine the language to which their names are attached as critically as their importance would seem to exact. However, the issue was for the trial court to decide, and evidently it concluded that the affiants last mentioned were the more credible. We cannot say from the record before us that this was error. That the verdict may have been reached by reconciling somewhat conflicting evidence and harmonizing differences of opinions is not inconsistent with the finding of the court, for this is what usually happens in cases of this character. The greater number of witnesses declared that there was no agreement, in advance, to be bound by the average or quotient to be attained, and that the verdict followed ample consideration thereafter. And if so, as the court must have believed, each juror was left free to express his own individual convictions in the verdict returned. This being so, there was no error. Gutfreund v. Williams, 172 Iowa 535.

Affirmed.

Evans, O. J., Gaynor and Salinger, JJ., concur.