43 Conn. 437 | Conn. | 1876
Levi Goodwin and others brought their petition to the Superior Court for Hartford County at the March term, 1878, for the laying out of a highway in the town of Wethersfield. That court appointed a committee to inquire as to the necessity for such new way; which committee, having heard the parties, reported to the court at the September term, 1873, “ that the highway prayed for in said petition is of common convenience and necessity.” The town and certain individuals,- respondents, remonstrated against the acceptance of this report, and the court at the March term, 1875, set it aside and referred the petition to a new committee, who heard the parties and reported lo the court at the same term, that the public convenience did not require the laying out and establishment of the highway prayed for. The
The respondents alleged that there had been irregular and improper conduct on the part of the committee in the performance of their duties, in this, that the committee, having brought their public hearings to a close on the 4th day of September, 1873, subsequently, upon the same day, met by themselves and took an informal vote upon the question which had been submitted to them, a-majority voting to lay out the proposed highway.; that they met again by themselves upon the succeeding day for consultation; that while in session Mr. Johnson, who was first selectman of the town of Wethersfield, and during the trial had acted as the agent of the town, as well as for himself as an interested individual, came to them privately, and promised that if they would defer further action in the matter he would procure a new highway to be laid out and accepted by the town, which would be satisfactory to all parties; and that they consented to the delay • and assured him that if he should carry out his plans they would make a report adversely to the petitioners and contrary to the report they then contemplated making.
In the case of Harris v. Town of Woodstock, 27 Conn., 571, this court said: “As the mode of trial before a highway committee is very different from that before a jury, much less strictness is required in relation to the intercourse between parties or counsel and the triers in one case than in the other.” In Wethersfield v. Humphrey, 20 Conn., 226, the report of a highway committee was accepted notwithstanding the fact that they had received a written statement concerning the case from one of the counsel after they had closed their hearing, the court saying, “Were this committee a jury, empaneled to act in court and sworn to decide according to the evidence given in court, and to keep their own counsel, and suffer no one to speak to them about the business or matters in hand but in court, the objection would have great force. But this
We cite these cases chiefly for the purpose of saying that we do not intend herein to overrule them. The conduct of the committee in the case before us will bear the test of a trial by the rigorous rule applied to jurors; and that rule was thus stated in Pettibone v. Phelps, 18 Conn., 450: “It is now well established by the modern authorities that every instance of misconduct in a juror will not destroy the verdict. The rule extracted from the cases seems to be, that however improper such conduct may have been, yet if it does not appear that it was occasioned by the prevailing party, or any one in his behalf, if it does not indicate any improper bias upon the juror’s mind, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside. A contrary rule would in many cases operate most unjustly. It would punish an innocent person for the offense of another. If a juror conducts improperly and violates his duty and his oath, he ought to be answerable for it, and not a party in the cause, who is in no manner accessory to the misconduct. To deprive a party of a verdict which he may have honestly obtained after a protracted and expensive litigation, merely because a juror may have improperly spoken of the cause, when he could have received no benefit from that act of the juror, and his opponent no injury, would seem hardly compatible with a due administration of justice. If, indeed, he, or any agent of his, will approach a juror while the cause is on trial and speak of the subject matter of the suit, it will destroy a verdict in his favor. He ought to know and feel that he may lose but cannot gain by such conduct. Depriving him of his verdict will operate as a punishment for his violation of the law. Só, too, if it appear that the unsuccessful party either sustained or might have sustained injury from the juror’s misconduct, it is reasonable that a new trial should be granted, that justice may be done between the parties. It is undoubtedly the duty of courts, as far as practicable, to
If the plan had been carried to completion it would, of course, have brought all parties to the point of desiring that the highway asked for by the petitioners should not be laid out; virtually, it would have made it unnecessary to publish any decision. The petitioners would have been under no inducement to continue proceedings under their petition, their purpose having been accomplished; they must have withdrawn it or consented to the committee’s making an end of it by an adverse report. Neither the town nor any individual respondent would have had any occasion for further expenditure of time or money in resisting it; litigation and its attendant costs would have been stopped by the voluntary agreement of all parties; and the respondents would have reaped this additional advantage—that the establishment of a highway which
But, though Mr. Johnson procured the opening by the town of another road which he intended as a substitute for the one asked for by the petitioners, yet it was not satisfactory to them, so that the plan failed. It is clear that the suggestion of the plan had in no degree impressed itself upon the report; for that as made to the court was the one which the committee had determined to make before Mr. Johnson spoke to them, and of which he was notified as a party; it had undergone no change; the respondents had suffered therefore to this extent —that the committee had delayed for a few days the submission to the court of a decision adverse to them. It was sug
We do not think that any corrupt motive governed the action of the committee. We say this notwithstanding the fact that they listened to a request that the interview should remain a secret, and thereby most unnecessarily invited suspicion ; for the proposal was to lay out a highway and to have the town accept it, and to have all parties agree to this and to substitute it for the one under consideration by the committee. ' This would involve the highest degree of publicity; would involve knowledge of the whole transaction on the part of all persons whose interests could be affected.
As the case finds that the improper act on the part of the committee was not occasioned by the petitioners nor by any one in their behalf; as we cannot see that they derived any benefit from it; or that the act indicates that the mind of any member of the committee was under any improper bias against any of the respondents; or that the act had or might have had any unfavorable effect upon their cause; and as the petitioners obtained, after what we may presume to have been
On the hearing before the committee at Wethersfield "on the 1st, 2d and 4th days of September, 1873, the town of Wethersfield claimed that the petitioners had a right of way to their lands in the Great Meadow over and along a route shown to the committee, and offered evidence in support of the claim. The petitioners denied this claim and offered Mr. Andrews as a witness, and he testified that the town had paid a sum of money for the right of the petitioners to pass for a single year over and along said way within the preceding fifteen years. On October 20th, 1873, the town of Wethersfield proposed and offered to prove by competent evidence that this payment to Mr. Andrews was made more than fifteen years before, and that this evidence had been discovered since the last meeting of the committee on the 4th day of September. Upon the objection of the petitioners the committee declined hearing the testimony.
The respondents insist that in this the committee erred, and that their report should be set aside.
This was an application for a re-hearing upon the ground of newly discovered evidence. Concerning such an application addressed to an auditor who had closed his public hearings in a cause referred to him, this court said, in Welles v. Harris, 31 Conn., 369, as follows: “We think a party ought not to be allowed to take his chance of obtaining an award in his favor upon such evidence as he may happen to have at a trial, and if he fails in his object to then have an opportunity to look up witnesses, who, as in this case, he had every reason to suppose might be able to give important evidence in his favor, and in this way to experiment upon the chance of obtaining a more favorable result on a second trial. We think therefore there was such laches in suffering the trial to proceed
On the 5th day of September, 1878, the committee separated without formal adjournment and without giving notice of the day upon which they would again meet. On the 20th day of October, 1873, L. M. Smith and H. S. Hayden, two of the committee, issued a notice of that date to the owners of lands over which the new highway was laid out, to appear before them at the United States Hotel in Hartford on the first day of November, 1873, at 9 o’clock A. M., to be heard relative to the assessment of damages and benefits accruing to individuals by the laying out of the highway; which notice was served upon all the land-owners interested, they being all named in the notice. The committee met pursuant to this notice and heard such parties as were present. The respondents argue that the committee acted irregularly and improperly in attempting to hear the parties in the matter of
It is to be observed that the statute speaks of but one notice to those interested; that is the notice which the court in its order fixing the time and place for the meeting of the committee requires to be given. The parties being before the committee according to the order of the court, and the trial having been thus legally commenced, it is left to the committee to continue it and keep the parties before them by such form and manner of adjournment as they shall see fit to adopt; any unreasonable, unfair or partial conduct on their part, in this respect, being reason for setting aside any report which they may make. An adjournment publicly announced is the easiest and the most common mode of securing the attendance of parties; a written notice signed by the committee- and duly served upon every person interested involves much more labor, but it is equally effective. In the present case the committee gave notice to all -persons interested that they would meet and hear them upon the 1st day of November following. It is neither alleged in the remonstrance nor found as a fact that this notice was either insufficient in form, unreasonable as to time, defective as to service, or that any respondent failed to receive it. The objection represents no real grievance. If near the close of a trial of many days’ duration the committee should inadvertently separate at the close of a day’s sitting without publishing the formal adjournment, the language of the statute does not compel us to say that the thread of the trial is broken and that the work done is lost. We think that the fact that the committee pursued their inquiry upon the 1st day of November upon the notice above described, does not vitiate their report.
What we have said as to time applies equally to place. The committee having opened the trial at the place specified in the commission from the court, had power to continue it at another place, giving due notice of the change, being responsible to the court for their action in this respect. It is not alleged in the remonstrance, and it is not found as a fact, that the change of place occasioned the slightest injury, or inconvenience even, to any person interested.
There was error in holding that the respondents’ remonstrance was sufficient; in rejecting the report of the first committee; in appointing a second committee; in holding that the petitioners’ remonstrance against their report was insufficient; and in accepting that report.
In this opinion the other judges concurred.