124 Tex. 417 | Tex. | 1935
delivered the opinion of the Commission of Appeals, Section A.
The City of Waco brought this suit to condemn a certain strip of land, belonging to J. B. Messer and Mary Lee Messer, for the purpose of widening a street. A. H. Parker held, under lease from J. B. Messer, a part of said strip of land, upon which stood a building called “a stand,” in which Parker conducted a grocery business. The case was tried to a jury, on special issues, resulting in a verdict for the Messers for $1,500 ; and for Parker for $150.00. Judgment was entered in accordance with the verdict. On appeal by the city, the Court of Civil Appeals reformed the judgment of the trial court, in respects not presently material, and affirmed said judgment as reformed. 49 S. W. (2d) 822. The city sued out the writ of error.
The city makes no complaint of the judgment in so far as same is in favor of Parker. The only complaint made here, respects the Messers. The city contends that the verdict and judgment, in favor of the Messers, involve a double recovery. Among the special issues submitted to the jury was one in these words:
“Special Issue No. 1. What do you find from a preponderance of the evidence, was the reasonable market value of the 25x125 foot strip of land, with the improvements thereon, taken by the City of Waco from the property located at 4th and Jefferson Streets, belonging to defendants on March 18, 1931?” The jury answered: “$1,500.00.” In connection with this special ssue, the court charged the jury as follows:
“In estimating such value, you may take into consideration the value of the lease of the stand and on said land, the value of said stand itself, the shade trees and that portion of the garage and barn actually taken and destroyed, as shown by evidence herein, if any, but you shall not take into consideration, in answering this question, any value of said stand or lease, to defendant, A. H. Parker.”
We deem it proper to suggest that the charge, as a whole, is a general charge and, perhaps, is subject to criticism in material respects. We make this suggestion in view of another trial.
The judgment of the trial court, and that of the Court of Civil Appeals, in the respect that same are in favor of the Messers, are reversed and the cause is remanded, as between the latter and the city. In all other respects, the judgments of both courts are affirmed.
Opinion adopted by the Supreme Court, January 30, 1935.