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DARLINGTON BRICK & MINING COMPANY v. COMMONWEALTH. (06/28/62)

June 28, 1962

DARLINGTON BRICK & MINING COMPANY, APPELLANT,
v.
COMMONWEALTH.



Appeal, No. 197, March T., 1962, from judgment of Court of Common Pleas of Beaver County, June T., 1960, No. 126, in case of Darlington Brick & Mining Company v. Commonwealth of Pennsylvania. Judgment reversed.

COUNSEL

Robert L. Orr, with him Reed, Ewing, Orr & Reed, for appellant.

Raymond L. Brennan, Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Jr., Chief Counsel, and David Stahl, Attorney General, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 407 Pa. Page 661]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff, Darlington Brick & Mining Company, appeals from the refusal of the court below to grant a new trial. The case involves eminent domain proceedings. The plaintiff company owns property in South Beaver Township, Beaver County, part of which was taken by the Commonwealth of Pennsylvania for the construction of a state highway. A jury in the court of common pleas returned a verdict in favor of the

[ 407 Pa. Page 662]

    plaintiff in the amount of $20,000 which the plaintiff regarded as inadequate and it assigns four reasons for a new trial.

As is customary in trials of this character, the jury was taken to view the premises in litigation. While there, Juror No. 1 accosted C. Emory Miller, president of the Darlington Brick and Mining Company and sought to speak to him. Mr. Miller indicated that he could not enter into conversation with him but stated he would be willing to talk with him after the trial. The juror insisted on conversing and said to Mr. Miller: "This has nothing to do with this case, but I am a trustee of the cemetery which adjoins your land and want to discuss that."

Mr. Miller again specified he would talk with the juror after the trial, whereupon the juror told him of a claim the cemetery organization had against Darlington Brick and Mining Company and that "There may be another lawsuit over that."

The trial judge was not present at this conversation but was informed of it later, at which time the attorney for the plaintiff moved for a withdrawal of a juror with a continuance of the case, or, in the alternative, that Juror No. 1 be dismissed and the trial proceed with eleven jurors.

The trial judge discussed the matter with the involved juror but concluded that "no prejudice to the Plaintiff would be affected by his remaining on the jury." He accordingly ...


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