87 Ohio Law. Abs. 295 | Oh. Ct. Com. Pl., Ashtabula | 1961
This matter is before the Court for disposal upon Appellee’s motion for a new trial, and in this opinion the points made in oral argument will be treated in the order thus presented.
In argument, point was first made that the Court erred in refusing to strike the testimony of witnesses Whitehouse and Kadon, appraisers for Appellants, for two reasons: 1st, that
The witness Graham, who preceded Mr. Whitehouse to the stand, as well as Mr. Whitehouse and Mr. Kadon, were yeach inquired of by Appellants’ counsel, without objection, with respect to having an opinion on market value of the allotment lands separately and the industrial lands separately. In other words, Appellants’ approach to the valuation problem was on the theory that the highest and best use of part of the land was for allotment purposes and that of the remaining portion was for industrial use; and-Appellants offered evidence in support of this theory without first offering evidence on value of the whole. All of this was done without objection, and it is the opinion of this Court that the question as to whether or not a witness may be confined on direct examination solely to “total valuations” as distinguished from giving testimony on the value of the component parts of the total lands involved, is not presented. The first reason advanced as ground to strike this testimony is, therefore, not well taken. The second reason certainly points only to the weight of this testimony and not to its competency.
Argument was next advanced that all the testimony with respect to land values, damages to residue, etc., were made incompetent because the Court charged the Jury as a matter of law that the date of take was the date of filing the resolution, namely, December 15, 1960; whereas, some of the testimony with respect to property values was predicated upon inspections and appraisals made some three or four months thereafter. It should be borne in mind that the Appellants approached this case with the theory that the date of take was as early as February, 1958, when survey crews first entered upon Appellants’ land, whereas the date of entry by the contractor was definitely shown to be March 22, 1961. The witness Graham testified that his date of appraisal was May — 1960. Witness Whitehouse testified that his first inspection of the
It is next argued that the Court erred in its general charge because it did not include the words “fully informed” with respect to a buyer and seller when defining the term “fair market value.” The Court is of the opinion that its definition to the Jury of fair market value was accurate, but if it can be claimed that the term “fully informed” necessarily must be included in order to properly define “fair market value,” suffice it to say that no request therefor was made, and if this be error it is one of omission only, and not of commission.
It is next urged that the Court erred in charging the Jury that it could consider as an element of damages the sum of $2,768.00, as testified to by the witness Walker as being the fair and reasonable cost of an access road necessitated by the taking, which, of course, would be part of the “cost of cure.” At the time this testimony was offered it was limited by the Court to being a part of the damage to residue and was not permitted as a separate item of damage. In the general charge the Jury was instructed that the measure of damages to the residue was again governed by market value, namely, the difference before and after the take, and the Court did instruct the Jury, in effect, that in arriving at such damages to residue it could consider among other things likewise mentioned in the charge, the ques
A point strongly urged on the motion for a new trial is that the Court erred in permitting the Jurors to take notes during the progress of the trial. In this case three expert witnesses testified for the Appellants and two for the Appellee, with respect to land values and damages. In addition to this there was testimony by yet another-witness concerning value of buildings taken.
Request was made by the Appellants that the Jury be permitted to take notes, which the Court granted, with instructions to the Jury, to all of which the Appellee took exception. The taking of notes by the Jurors pertained only to the testimony of these expert witnesses, and the following proceedings were had with respect thereto.
The Court instructed the Jurors, as follows:
“Ladies and Gentlemen of the Jury, let me have your attention for a moment. I am going to have the Deputy Clerk distribute among you pads and pencils, which you may use, if you wish, to record evidence given by a witness in connection with values in this case. It is very difficult, if not impossible, in my opinion, to remember accurately a long list of figures.
“You may not at this time use this memorandum or pad to presently put down what your now recollection is of something that has already occurred. That is improper. I don’t deem it necessary to make the explanation as to why, but that you are instructed you may not do; but you may from now on make memoranda of dollars and cents figures, that kind of
The Attorney for tbe Appellee at this point took an exception to tbis proceeding.
Tbe Deputy Clerk, on tbe Court’s instructions, passed pencils and pads among the Jury, and tbe Court continued:
“I would like to add a few more words in instruction on tbis issue. Each of you, of course, is responsible for retention of yourown pad. In other words, it would be improper for us to gather up tbe notes that you make. Tbe pads, in other words, tbe notes you make, they are not to be seen by anyone else any more than you are to tell anyone else what you may have recorded upstairs up to tbe present moment in your mind. So, you are further instructed each of you shall carefully hold onto any such memorandum that you do make in accordance with these instructions, until tbe end of tbe trial.”
The question as to whether tbe Court in any case may or may not permit tbe jurors to take notes is, in the’ opinion of tbis Court, not a settled problem in Ohio at tbis time. It seems to tbis Court that it is a matter largely within tbe Court’s discretion, which should be exercised carefully and with regard to tbe issues raised in any particular case. It should be borne in mind that in tbis type of proceedings, an appropriation case, there is no burden of proof and there is no issue other than tbe amount of compensation to be paid tbe property owner. In a situation of tbis kind may tbe Court permit tbe taking of notes by tbe jurors with respect only to tbe dollars and cents figures testified to by tbe various witnesses, or must the jurors rely solely upon their memory as tov these figures when they retire to reach a verdict?
In tbe trial of this ease, as in most others of this character, both sides used a blackboard to set down in front of tbe Jury tbe values and other figures at tbe time same were testified to by tbe various witnesses. Under these circumstances did tbe Court commit prejudicial error in allowing tbe taking of notes by tbe jurors?
In Railway Co. v. Ullom, 11 C. D., 323, 3898, it was held that “It is a matter of doubt whether it is improper for jurors to make notes of tbe testimony. On questions of fact judges
In Palmer v. Cowie, 27 C. C., 617, 1905, it was held in syllabus 5, “The taking of notes by a juror during the course of the trial, which, however, was discontinued upon admonishment by. the Court, is not misconduct for which a new trial will be granted.” This case was a suit for rescission of contract for breach of warranty of a horse. The following language appears at page 623 of the opinion: “Speaking for myself, alone, I entertain no grave doubt about it (as to whether taking notes is misconduct). Unless a juror is cautioned not to take notes I know of no rule nor can I think of any principle that would make it misconduct on the part of a juror to take notes any more than on the part- of a judge before whom a trial upon facts is being heard, and especially where there are several judges.
“It is true that a juror might by taking notes have more information about the case in the jury room than a jm:or who did not take notes; It is equally true that there is a great difference in the knowledge of jurors. It is true that there is a difference in the memory power of jurors and of judges, and it is possible that it gives one juror an undue influence with his
In Butter v. Savin, 24 N. P., New Series, 243, which was a breach of contract action against a pawn broker, notes were taken by a juror during the Court’s charge with respect to dates from which interest could be computed if a verdict were returned for the plaintiff, and it was held by the Court, “It is not misconduct for a juror to make a memorandum of the dates between which interest may be charged, during the course of the charge to the jury upon this subject.” In commenting upon this point in the opinion the Court said, ‘ ‘ So far from this being misconduct of the juror the Court feels that it was entirely proper, and, indeed, praiseworthy, for the juror to make a memorandum of the interest dates, as the ordinary juror cannot be expected to remember particular dates between which interest is allowed without some written memorandum.”
In David Die Co. v. Beltzhoover Electric, 40 Ohio App., 308, which was an action upon an account for work and labor, the Court during its charge asked, “Has anyone of the jury a pencil”? The record of the ease did not show whether the jurors had pencils or whether or not they used them in taking notes. It was argued by counsel that they did take notes and took them to the jury room. The Court held, in Syllabus 5, “Court’s inquiry during charge as to whether any one of jury had a pencil held not prejudicial error even if jurors took notes and took notes to jury room.”' In discussing this point, the Court referred to Thompson on Trials, 2nd Ed., Vol. 2, page 1868, wherein the author reports the fact that some courts do hold the taking of notes by jurors to be misconduct, and that the conception which supports that view is based on the thinking that jurors always must “register the evidence on the tablets of their memory.” This Court rejected this approach in the light of present day circumstances, wherein almost everyone is able to read and write, and in conducting the affairs of life the making of notes and memoranda is most common by nearly all persons.
There is no question but what the Supreme Court in 144 Ohio St., 32, in its per curiam opinion, approved the opinion of the Court of Appeals, and, in fact, quoted much of it ver
In the face of all the Ohio cases dealing with this general subject matter that this Court has been able to find, it does not seem that any prohibition against the taking of notes by jurors has become so deeply ingrained upon our trial procedure as to require legislative enactment in order for the trial courts to recognize as fact that which truely is a fact; namely, that the ordinary person cannot keep in mind a long list of figures without the help of a memorandum. To argue otherwise is ridiculous.
In 154 A. L. R., 874, the Corbin case is reported, and in an annotation starting at page 878 this general problem is annotated. The Court notes that the Corbin case apparently is the only case in the country in a court of last resort so holding. Many cases from other jurisdictions, dealing with this subject .matter of note taking by jurors, have reached the direct opposite result from that announced in the Corbin case.
Thus, in Omaha Fire Insurance Co. v. Crighton, 69 N. W., 766 (Nebraska), which was an action upon a fire insurance policy, evidence was introduced concerning a large number of articles of personal property with the claimed value thereof. The Jury, at request of counsel for the insured, was permitted to take notes as to this testimonyy. It was held not to be prejudicial error.
In Gasparovic v. Reed, 5 Pa. D and C, 531, reported in the annotation above noted, it was held not to be error to permit jurors to take notes concerning the testimony dealing with doctor bills, hospital bills, etc., in a personal injury action.
Likewise, in United States v. Carlisi, 32 Fed. Supp., 479, wherein there were twenty-nine individual defendants and many persons testifying, the taking of notes by the jurors was held not to be prejudicial error. The Court observed, “There is no legal reason why such notes should not be made by jurors. Judges and lawyers make notes. Why not jurors? Certainly the making of notes would better aid their memories and thus
Cahill v. Baltimore, 98 Atl., 235 (Maryland) is an appropriation case. In the course of the opinion, at page 238, the following language appears: “We see no objection in a juror taking notes in a case complicated with figures during the examination of testimony and being permitted to take these to the jury room for the purpose of refreshing his recollection, providing the Trial Court is satisfied that such action will not delay the trial or interfere with the juror following the evidence. ’ ’
In Chicago & Northwestern Railroad v. Kelly, 84 Fed. 2nd, 569, a personal injury action, plaintiff’s counsel asked the jurors in his summation to take down his calculations relative to the damages sustained by plaintiff. In passing on this point as a ground for a new trial (which was granted on entirely different grounds) the Court, in rejecting this contention, said, “No prejudice is shown to have resulted from the request, and we think that the matter of taking notes by jurors is one which can safely be entrusted to the common sense and good judgment of the trial courts. The request that notes be taken by jurors should be addressed to the Court and communicated by it to the jurors, with suitable instructions, if notes are to be taken. ... In the absence of any showing of prejudice this certainly would not constitute a basis for reversal.”
In United States v. Campbell, 138 Fed. Supp., 344, a prosecution for falsely pretending to be a Federal Officer, the jury, after deliberating some time, requested that certain evidence of prosecuting witnesses be read to them and that they be permitted to take notes thereon. Permission was granted over objection of defendant, and the jury did take notes concerning this re-read testimony. In the course of the opinion the Court cited with approval the language of Judge Learned Hand, in United States v. Charialli, 184 Fed. 2nd, 907, as follows: “Next is the objection to the judge’s refusal to let the jurors take notes of the evidence during trial. The notion at times has
Commonwealth v. Tucker, 76 N. W., 127, 189 Mass., 457, was a murder case. Among the various claimed errors was the taking of notes of testimony by a juror. The Court specifically held that such fact does not require the setting aside of the verdict, but the matter is within the discretion of the Trial Court.
Commercial Music Co. v. Klag, 288 S. W. 2nd, 168 (Texas), was an action to recover machines seized by the Sheriff in executing a writ of sequestration. During the trial of the action the attorney for defendant handed each juror a pencil and pad and suggested that the jury take such notes of the-arguments as they might desire and carry same with them to their deliberations. This was claimed prejudicial error. In passing- on this point the Court held, “We overrule this contention and we think it would have been better for attorney for appellee to have requested the Court to have some officer of the court furnish such pencils and pads to the jury so that the attorney would not have been placed in the attitude of attempting to incur favor with the jury by personally giving each juror a pencil and pad. What we are saying is that the mere fact that the jury was provided with pencils and paper pads so they might take notes and take their notes with them into the jury room to be used during their deliberations, did not constitute reversible error.”
Reference is also made to 39 Ohio Jurisprudence, 597, Par. 27, Trial; 53 American Jurisprudence, 623, Par. 851; 30 Ohio Jurisprudence, 97, Par. 58 and 61; 40 Ohio Jurisprudence 2nd, 525, Par. 35 and 36; 3 Ohio Jurisprudence 2nd, 757, Par. 780; 89 C. J. S., Par. 456, Trial; 2 Belli Modern Trials, 1720; Section 2309.59, Revised Code.
The motion for a new trial will be overruled.