*1 ux., Appellants, W. MADDOX et G.
GULF, RAIL- FE SANTA COLORADO & COMPANY, Appellee. WAY
No. 15732. Appeals of
Court of Civil Texas.
Fort Worth.
July 1956.
Rehearing Sept. Denied
501
Trial of the issues pleadings made subsequently had. Condemner was the plaintiff court, though par- trial both *3 ties certified dissatisfaction with the Com- missioners’ award. The trial was confined damages, to the issue of as to which the appellants carried the jury burden. The appellants’ found the 7.96 acres of $2,400, to land have been (through calculation from answers returned) a dim- appellants’ inution in the value of remaining $11,000. land The total these figures $13,400. $3,100 Such total is less than appellants pur- amount had received suant the Commissioners’ award. The trial court calculated interest thereon at 1954, rate of from November 6% date of the judgment, an amount of $170.50. Judgment condemner, was entered for against appellants, $3,270.50 for the sum of ($170.50 plus Appellants $3,100). present appeal. their Coleman, Coleman & Whitten and Earl L. Judgment reformed, As reformed. Denton, appellants. for judgment affirmed. McLeod, Wigley, Shirley, Mills & Gal- At the presented we are appel- outset with veston, Minor, Sullivan, Fred T. B. John lee condemner’s motion to strike a bill of Davis, Denton, Burford, Ryburn, Hincks & exceptions appellants. secured From Ford, Burns, Dallas, and Robert E. for appears the statement facts ap- it that as appellee. pellants’ attorney . cross-examining
the condemner’s witness R. L. MoGalliard MASSEY, Chief the following immediately occurred after Justice. attorney said question: asked the witness the condemner, Gulf, The Colorado & Santa Railway Company, proceeded you Fe appraise “Did Payne also under tract provisions law, land, Payne Vernon’s the H. M. Ann.Tex.St. tract of land? seq. acquire Art. 3264 et 7.96 acres (Condemn&or’s “Mr. Burns attorney): appellants’ across the. 121.37 acre tract of please, If the court I thought we thrashed County, land in Denton Texas. The award days out ago that two we going are Special appointed Commissioners now, hearing Judge, restrict this and that purpose was in $16,500. the amount of ruling it was that we court’s going were pos- Since the condemner desired immediate stay with Maddox land. acres, deposited it money session of the 7.96 double the amount so awarded with the (Appellants’ “Mr. Coleman attorney): County provisions under Court of Art. 3268. Honor, propose I Your to show ap- that he deposit, date of November praised every for the tract Santa Fe all the appellants’ was therefore the date line, way and we down the got have Appel- land was “taken” condemner. right perfect to. $16,500 promptly lants withdrew Now, subject provisions' “Mr.: Burns: does the to their order under court think ruling within now, the statute. court’s came this statement, judge’s in the The trial try going to we were please, if the court to what the nature witness’ of evidence suit?
this law per been had it been going am sustain I Court: “The mitted, appel from what different is no is material. see that I don’t objection. presume that late must would have courts impropriety testing been when is not mean court You “Mr. Coleman: testimony upon exclusion McGalliard’s me to cross-examine permit going to p. Tex.Jur., “Appeal the matter. 3-A many appraisals made he how as to witness 421, “Showing Error”, Excluded sec. Railway Company? Fe for the Santa Evidence”; Poe, Tex.Civ.App. Johnson *4 appraisals, I don’t other On “The Court: 264, Galveston, 1948, re 210 S.W.2d any upon the bearing would think it Mills, fused, e.; Tex.Civ.App. Gray n. v. r. land. this of market 278, Worth, Fort 206 S.W.2d affirmed 985. Further in 147 Tex. 210 S.W.2d bearing, a It would have Coleman: “Mr. more, page language at of the the note witness. Honor, the interest of the on Your Jurisprudence, Texas cited of volume rule requiring wherein that the a it is stated objec- will sustain the I “The Court: sought be showing what answer to of tion. necessary elicited where the com is not This is cross-examina- “Mr. Coleman: permit refusal plaint appeal is of the to on This is not direct tion, Honor. Your questions propounded a witness answer to testimony. In this connection it on cross-examination. applies mainly rule has been “This stated: objection. I sustain Court: the
“The party seeking to a case a is to intro where evidence, nature original duce the of which right, All we submit to “Mr. Coleman: expected to know he he be before should excep- court and take an ruling the of the same, applicable not offers and is to the tion. party cross-examining case is where the exception complained bill of of In the adversary, the witness his with whose of copied language we have from foregoing is knowledge supposed case he not of the copied of facts and fol- the statement to of we In this class cases be familiar. language: “This Court certi- this lowed that, if question is think the better rule permitted witness been to had fies that appears be its face to calculated to elicit on have testified that he testify, would had he competent testimony, is error to refuse appraisals number of for the large amade same, may although counsel be able not and in each Corporation, instance Plaintiff to state the answer intended to the court Special before Commission had testified expected Cunningham be elicited.” to cases, such hear and in each appointed to Co., 1895, 88 Austin & W. R. Tex. N. paid for had been his services in instance 31 S.W. plaintiff.” appraisals said making such immediately Proceeding appel of basis condemner’s motion to points error, lants’ are of we made in exceptions fact that bill of stantly though strike aware that even several submitted before been it was actually them be considered to might of had by the court filed with the clerk. granted demonstrate errors occurred in the 372(g). go trial, We could into a course of the nevertheless T.R.C.P. this court See question proper compelled of the be to consider will whether discussion application and other rules this but since T.R.C.P. 434 meaning of will inhibit opinion that remand of the condemnor suf reversal and cause arewe errors, prejudice motion trial. its to strike is another Since herein fered assumed, be errors would after law overruled. trial, plus we same memory, elements vagaries the conduct incident the effect of imagination, suggestion, personal reverse authorized not be capacity for they amounted observation, and influence of unless thereof because (cid:127)case interest, appel- for every witness; lawyers rights of skill of a denial of to such eliciting in to cause reasonably appealing evidence and calculated lants as was jury; trial, and accidents rendition is absurd cause the probably did —it reject a verdict judgment. because of errors else- improper verdict an where in the trial which the result affect aware is well This court degree lesser unknown these in change made philosophical decided elements. The was that author’s conclusion adoption Rule the result law as reversing trial court judgments for Supreme Court. by the Rule 503 434 and trial”, “errors elsewhere in the and which noted that to' be example, it is For one records, appear on the face of the cold case where with a * in connection * gnat our courts have “strained at the ” exclu was erroneous presented of error * * * He swallowed the camel. the law it was once testimony, sion of believes that reversals of such because *5 issue upon the case in the evidence “If the part errors demonstrate a failure on of the offered was evidence excluded the (cid:127)on which purpose the courts to serve main of the appear does not if it conflicting, and be their existence. could admitted evidence that the if Development an article In entitled “The jury render the properly have influenced the in of Doctrine of Harmless Error of such verdict, the exclusion a different Texas”, by Judge Robert W. Calvert error, the material becomes evidence 1, 18, (1952), to be found in 31 the T.L.R. (Emphasis reversed.” be must judgment background historical of 434 and T.R.C.P. v. Lumber Co. Trinity County added.) through 503 is traced into said rules and 856, 203, 30 Denham, 1895, Tex. S.W. 88 the decisions to November of 1952. Seem- rules, this state present the Under ingly accepting principles upon the declared the improper for wholly be would ment article, Judge in Sunderland’s Calvert con- (even must show seeking reversal party testing the an cluded that in of error con- conflicting) the on evidence though should, templated by query these rules the such the but exclusion that for made as follows: this error rea- be “Was probability in all reasonable jury would the sonably prob- calculated to cause and did it the than verdict other a have returned ably entry improper judg- the of an cause did return. it verdict appellate in the case?” long So as an ment entitled “The Problem of an article In court, deciding case, recognized in a the Review”, by R. Edson Sunder- Appellate applied and that test to be the burden 126, in found 5 T.L.R. to be (1927), land properly placed, Supreme thereon is harm- of the doctrine of extension 148, the not, prior November, 1952, had Court Author Sunder- advocated. less error by to work out a formula which it sought merit considerable attributed land of Civil would (and Appeals) Courts year (1924) not a single a in fact guided in all cases. Rather did the be King’s Bench Division from the case single recognize seem to the issue of court was reversed because courts English or harmless error prejudicial was one to admitting in or ex- errors court trial to the sound entrusted discretion and be argued He that since cluding evidence. appellate courts, sense to be good trials, verdicts, jury e., i. results study of from a the record determined by indisputably influenced in- many are a whole. factors, as, example: for tangible Supreme convictions, recently education, religious Court social More seems etc., appropriate juror; to test .habits, of each have found prejudices, proba- the conclude that “in all a of whether reasonable consideration bility a persuaded jury return returned a verdict other jury thereby contrary it would that which it would have returned verdict to the verdict occurred. had it received the of the evi- returned had the error not benefit have course, Alvey, 153 dence which we In the case of was excluded.” Of Goforth confronting recognize in Tex. a case which difficulties S.W.2d complaining present un- re- complained party was a rather under the the matter applicable apparently strictions introduction jury argument, usual conceded jurors upon evidence from matter error, to have been 'Chief Hick- Justice said, ordinary an- juror man influences the return of controlling “In our view verdict, existing by swers in but under the intelligence persuaded could have been appellate bear rules of law courts must agree argument to a verdict con- question resolving the the burden of trary agreed to that to which would he probable harm as a matter of law. argument.” but Logically this applying test In under T.R.C. apply would the tests likewise improperly required to evidence admitted or im- we are to examine P. properly prepared excluded. chart As to im- record. We have evidence whole properly excluded, appear amounts testified to various that of the appellate an witnesses, before testing court could material reverse and remand a case because in the thereof it must errors instant assumed case.
Schedule re- Value re- Value maining maining Differ- property property Value of ence 7.96 before con- after con- or ac. damages taken Witnesses demnation demnation Appellants’: $5,700.00 $50,850.00 $28,250.00 $79,100.00 Raymond King D. 81,500.00 50,000.00 31,500.00 3,980.00
George Ritter 4,000.00 82,500.00 50,000.00 32,500.00 George Williams 70,900.00 3,200.00 44,005.00 26,895.00 P. Masters C. 3,980.00 67,500.00 40,000.00 27,500.00 Brewton Jack V. R. Clearman 3,980.00 85,000.00 50,000.00 35,000.00 Condemner’s: 22,689.00 1,592.00 15,970.00 6,719.00 Feuerborn John plus plus house (No house house
Deprecia- con- tion sidered) 1,194.00 36,950.00 32,863.00 Yeary 4,087.00 W. R. 1,592.00 42,682.00 38,049.00 4,633.00 Randall Sam 1,592.00 50,432.00 44,990.00 5,442.00 McGalliard R. L. 2,400.00 66,000.00 55,000.00 11,000.00 Findings: Jury $13,400.00 ($2,400.00 plus $11,000.00) found: amount Total 5, inclusive, numbers deciding, error without that and number Assuming, points appellants’ opinion error are of the that presented We such assumed is witnesses, in re- that amount testified to not amount to errors, would error or was lower. application We believe that re- not justify error and versible of tests under trial. 434 leads to a T.R.C.P. another the cause for mand of logical conclusion that reversible error is concern we have written what In not shown. was motion strike ing condemner’s de appellants were apparent made By appellants” point of error num bias the matter of go into right nied the complaint ber 4 made the court Mc- witness condemner’s interest should testimony not have admitted the their first predicate Appellants Galliard. upon Feuerborn market matter of John values, thereupon. the sched From error having witness not been shown witness’ tes that this noted it is to be ule qualified express be any opinion there prop the value of timony regarding During on. the course testimony of his basis computed on-the erty was “taken” this pre witness admitted he was tes acre, amount to the per identical pared testimony $200 to give as to witnesses Randall by condemner’s tified to appellants’ remaining property after the Feuerborn, higher 7.96 except acres were “taken” by an utter witness condemner’s testified to amount disregard appellants’ of the fact that house witnesses appellants’ Yeary. Most portion was located on one thereof. He the basis of $500 value on computed this testify did proper to the value of the appraisal acre, though King’s Mr. per ty analysis “taken”. An testimony, of his a little low Masters’ higher Mr. in light considered of the whole record testimony concerning er. McGalliard’s verdict, the jury’s demonstrates that appellants’ the remainder the value of admitting his $50,432.00, prior “taking”, property (which we assume for purpose) appraisal testified to higher than the requires more judgment reversal of the Tes condemner. by any witness for other than the error connected with McGalliard’s from upon of such value the matter timony testimony. Mr. from varied appellants’ witnesses $67,500 up Mr. *7 figure of By Brewton’s appellants’ points of error $85,000. figure jury 7, 2, of The Clearman’s complaint numbered is made be $66,000. have found such value to been trial cause the court testimony admitted testimony val concerning the McGalliard’s showing that tract a of land adjoining appellants’ prop of ue the remainder of appellants price that of the for sold a of $44,990, erty subsequent “taking”, per acre about the same date of $175 the the figure was about the as testified to same “taking” appellants’ acres,—be of 7.96 witnesses, by appellants’ high of one was appellants’ cause the trial court overruled one, and er than lower than the other testimony strike such motion to after it appellants’ jury record,—and four The of witnesses. in the was because of the $55,000, such found value have been court’s statement made in connection with $5,000 nearly more than esti testimony that, McGalliard’s the admission of “I property’s prior mate the the worth the believe that sale is within a reasonable jury disregard It the “taking”. seems that Appellants time and not remote.” con testimony ed McGalliard’s apparent as to each error tend that was because the testimony the values. McGalliard’s as to adjacent that said showed evidence land value of the 7.96 acres was cumulative of comparable that was involved in the testimony from suit, other condemner’s inadmissible, they witness hence contend es. His as to value of the land further that the court’s consti remarks “taking” after the was more weight favorable to the a comment on the tuted testi appellants appellants’ than four of mony. Though (for own assume we the sake the the ultimate error, property demnation of for never- was that there question) the purpose In probably building a railroad. view it say that cannot
theless we record, the we are satisfied the state of verdict an erroneous the return of caused the appellants that not demonstrate that do judgment. entry erroneous the of an reasonably given jury the appel- instruction was value witnesses Even condemner’s probably cause that to cause and did calculated excess of in lants’ a figure land at verdict to return other than the tract, jury verdict the adjacent paid for the otherwise it would have was returned. appellants the the valued land of as much twice as nearly “taken” at figure brief, In and as to the errors assumed adjacent the tract sold for. discussed, purpose the and hereinabove for not demonstrated that re- any is answer number 5 appellants’ point of error By proba- the jury was in turned reasonable the instruction of complaint is an made of bility contrary any answer it charge, in connection given in its court returned but the the occurrence of the special about inquiring the issue with complained individual errors of. immedi- appellants’ remaining land value of the ately after the 7.96 acres. “taking” of By ap- their error number the6 $55,000. The jury The found amount pellants contend finding that the essential complained “In con- of reads: instruction in jury connection with the market question, you your to this sidering answer their remaining property value of after in changes will not take into consideration supported were “taken” 7.96 acres was not house, physical condition of the Maddox by any evidence and was not within any, occurring if after 1954.” November testimony. range of It is noted to be jury from the Schedule that found No It is to be remembered that $55,000 appellants’ value of the re- 30, 1954, vember condemner de date property. maining highest given The court, $33,000 posited the property at the material time was appellant’s were “taken”. date 7.96 acres appellants’ witnesses, one of the charge jury. court’s so instructed only $50,850. value was Appellants showing introduced evidence after said date the construction pre That circumstance property begun, railroad across said apparent sents when one con operations explosive some involving said generally approved sys siders that under a blasting. Appellants also submitting introduced evi tem of issues in a condemnation their case, whereby dence show residence computes build the court the dam ing, portion on located ages jury’s answers, land not from the limitation *8 “taken”, damaged was a jury as result of the upon ap is the different from that blasting. This plicable ordinary evidence was admitted over the in submission of an repeated contentions the damages. ordinary condemner that In an damage issue on it related jury to time the “taking”, after was is restricted to issue the the maximum not matter involved in a damage figure condemnation testified to. That the is case, the construction range testimony. of the “ceiling” blast the In ing performed was shown to have been a condemnation case where the in evidence by by the condemner rather disputably than an in establishes that there ais de dependent Obviously contractor. the in value of a remaining crease in condemnee’s complaint land, of which struction and as the “taking”, made after result of a attempt given any in an to obviate con confined figure is to the maximum jury the jury physical the by they of the sideration dam to when find the testified con- appellants’ age to remaining property immediately home resultant from demnee’s construction, opposed condemnation, they railroad to con- before when find —but prop of remaining Dallas Dixon, v. the value of condemnee’s Tex.Civ.App. Dallas, 1952, they 636, erty immediately ref., after condemnation S.W.2d writ n. r. e. by figure Realizing only the lowest full are restricted well the logic of argument an to the contrary, Belt & Terminal to. Houston testified See we nevertheless believe Galveston, Lynch, Tex.Civ.App. the R. Co. more rational rule be in established such in Tex.Com. affirmed case 185 S.W. would be that which denies a it any limits condemnor App., 221 Within these right S.W. 959. to recover interest on answers. such an jury’s province overpayment. to return is the A condemner is compelled $55,000 by jury in this not the figure pay The found by the amount found case, figure the higher the lowest being owner, commissioners property deposit to, by or supported the evidence. in testified is it the court. A is condemner given option the of doing “taking” so and property Appellants present point the without delay, further delaying its “taking” en until judgment should not have been effect that costs has become fi- nal. A property is against them. Their contention owner right tered has no similar election, where but predicated upon Art. must V.A.T.S. abide the election of ad the provided are to be condemner. in it is that costs When the condemner when elects to “take” property owner judged against property delay without delivers the award or either amount of commissioners’ the commission- than ers’ owner, or less award to the judgment property is same court’s or de- posits it in prior subject to condemna court the amount him to his In order. offered either from the event are unable to ascertain tion. We condcmnee full receives ap control money perforce had been offered what amount record the statute’s operation. prior Constructively, the institution of condem pellants his considera- ap paid tion proceedings. not believe therefor is in nation We do the delivering his property condemner, or, the error pellants have demonstrated if be it not proper they complain. The is over to view the transaction as one where- in a consideration prop- ruled. moves out of the owner, erty property nevertheless jury appellants’ the verdict of the Under prevent owner money cannot from com- $13,400. This damage was fixed at loss and ing under his opinion dominion. In our that, appellants had since withdrawn meant matters not which should be considered $16,500 deposited to their order con- proper rationale, basis for the property pursuant Art. demner to V.A.T.S. owner should not be charged interest on the $3,100 more than the amount the got they money. The trial court erred in including paid. By jury judgment should be found part judgment. same as 13, 1956, the trial court January entered judgment interest of should be reformed to adjudge $170.50 found $3,100 against appellants amount of appellants charged against for the use W. G. wife, Maddox, Maddox and Ruth in $3,100 judgment judg- date. The Gulf, favor of the Colorado & Sante Fe appellants be- against entered ment Railway Company, as judgment date, railway condemning company half *9 13, 1956, January plus legal interest. Costs $3,270.50 $3,100. rather for appeal against Gulf, are of assessed Railway Colorado & Santa Fe Company. predicated Appellants appears because thereof. It reformed, judgment is As affirmed. passed upon has heretofore case presented, though .question some dicta RENFRO, contrary appears J., our own conclusion concurs result by Housing Authority City the Chief case reached
in the Justice.
508 BOYD, (dissenting). Justice BARTLETT, Appellant, A. M. judgment should be reversed I think the because of the re- remanded and the cause Gladys BARTLETT, Appellee. permit appellants court to fusal of the trial No. 6615. fully the witness McGal- cross-examine rec- liard, by reflected which action is Appeals Court Civil of Texas. clearly exception and is ord and the bill Amarillo. opinion court. explained in of this June 1956. a witness who right The to cross-examine Rehearing Sept. 5, Denied 1956. party right adverse is a has testified for the privilege to by and not a mere given law by the trial court. or withheld
be accorded 779B, p. cited C.J.,
70 sec. cases 33; Am.Jur., p. sec. 58
in Note is to purpose
The of cross-examination adversary’s legiti- case. One
weaken discredit doing is to
mate method them admis- or draw from
his witnesses credibility. might affect their which
sions lessen the might tend to which
Evidence witnesses from adverse
weight of as evidence clearly admissible
is as complete refutation. constitute witness employment of
The proper subject in- is a suit
party to the may may affect his credi- not It
quiry. triers That determination is
bility. C.J., 1172(2), p. sec. facts. right to show a witness’
and Note 70. party with a is as clear connection
business he is a kinsman of right to show
as the spouse. his even party, or holding in court’s this case
I think of harmless error in a doctrine
extends the contemplated an extent not and to
direction Rules 434 and authors by the rules comprehended themselves. evidence, which is rele- admissible
That material under inves- issue
vant admitted, ought to be is self-evi-
tigation, proposition that under our From
dent. competent exclusion of
procedure error, is harmless I evidence dis-
material *10 law, protest. I If is the
sent.