150 S.W.2d 363 | Tex. App. | 1941
The State of Texas, acting through the Commissioners' Court of Scurry County, instituted condemnation proceedings against land belonging to Mrs. Ruby West. From the decision of the Commissioners Mrs. West appealed to the County Court of Scurry County. From an unsatisfactory judgment there, Mrs. West has appealed.
By defendant's sixth and seventh bills of exception it is shown that while one of the plaintiff's attorneys was making the opening argument he said to the jury: "You are the taxpayers" and, after further argument, "The taxpayers will have to pay the bill." The bill shows the argument was not then objected to and the court took no steps to suppress it. Bill No. 7 shows that while one of plaintiff's counsel was making the closing argument he stated to the jury, "We meet some unreasonable landowners." Then, after further argument, "You, as citizens and taxpayers, are directly interested in this suit." At another point in his argument he said: "When you go above $25 per acre you will be taking the money out of your own pockets." The bill then recites: "To which statements and arguments, counsel for defendant, Ruby West, duly objected to the court in open court and excepted thereto because each such argument was not supported by the evidence and dehors the record; was an appeal to the self-interest of the jury; was an attempt to align the jury as a party to the suit on the side of the plaintiff; appealed to the prejudice of the jury and was prejudicial to the rights of defendant, and counsel for said defendant moved the court to instruct the jury not to consider such arguments, which objections, exceptions and motion the court overruled and gave no instruction to the jury, to which action of the court, counsel for defendant, Ruby West, then and there excepted." (Italics ours)
The bills were approved without qualification.
In Gulf, C. S. F. Ry. Co. v. Jones,
In Humble O. R. Co. v. Butler, Tex. Civ. App.
"`But you have got it to do, and your fellow citizens have got that task to perform. Just so long as we have highways in Texas, just so long as trucks and busses and motor vehicles are allowed to run upon the highways of this state, you want your highways safe and I want them safe for the traveling public, for you and your wife and your children to travel upon.' * * *
"`We expect a fair, square shake at this thing. The matter may not be important to you. It is hard to get in the other fellow's shoes and wear them just like he does. You sit over there on the jury; you sit over there as arbitrators in this matter. As I say, it may not seem of great importance to you but it is important to this woman; it is important to Mr. Ooley how you gentlemen go out here and answer these questions. It is a serious, absorbing, important question; it is important to this woman; it is important to Texas; it is important to the public because on the fair square determination of issues of this kind depends the safety and welfare of the people who are buying and paying for these highways. It is your business to approach this question carefully and cautiously; it is important to these that your verdict be arrived at in a careful, painstaking manner in this case.' * * *
"`You are not going to have safety in this state for your wives andyour children and yourselves until you hold these fellows *365 to a strict accountability in cases of this kind.'"
Relative to such argument this court said: "That practically all of the above-quoted argument was improper seems to admit of little doubt. The general effect of it all was to summon the jury to the high duty of making the highways safe for their wives and children. This end was to be accomplished by answers to special issues in this case. Had objections been interposed thereto at the time such arguments were made, and such objections been overruled, our duty to reverse the judgment on account thereof would have been plain. Our duty is not so plain in the absence of objections. But there is a well-established rule in our practice, followed by this court in Hewitt v. Buchanan,
In Dixie Motor Coach Corp. v. Swanson, Tex. Civ. App.
In Allen v. Denk, Tex. Civ. App.
In Southwestern Telegraph Telephone Co. v. Andrews, Tex. Civ. App.
In Brown Cracker Candy Co. v. Castle, Tex. Civ. App.
In St. Louis S.W. Ry. Co. of Texas v. Boyd,
In Southland Life Ins. Co. v. Norwood, Tex. Civ. App.
In Stewart v. Coats, Tex. Civ. App.
In Houston Electric Co. v. Potter, Tex. Civ. App.
In Dallas Ry. Terminal Co. v. Smith, Tex. Civ. App.
In Dallas Ry. Terminal Co. v. Moore, Tex. Civ. App.
In McClintic v. J. D. Young Corp., Tex.Com.App., 66 S.W.2d 676, 678, the court said: "The rule is now settled in this state, as said in Texas Indemnity Ins. Co. v. McCurry (Tex.Com.App.) 41 S.W.2d 215, 78 A.L.R. 760, that where improper argument has been indulged in, the adverse complaining party is entitled to a reversal, as a matter of law, if under all the circumstances, there is any reasonable doubt of its harmful effect or unless it affirmatively appears no prejudice resulted."
In Floyd v. Fidelity Union Casualty Co., Tex.Com.App., 39 S.W.2d 1091, 1092, the court said: "* * * the rule is now settled, in this state, that where improper argument has been indulged in, the adverse complaining party is entitled to reversal of the judgment, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted."
Also, see Herd v. Wade, Tex. Civ. App.
It has been settled by decisions of our Supreme Court that a bill of exceptions to improper argument in a civil case need not negative that argument complained of was provoked by argument of opposing counsel, nor that it was supported by evidence. Regester v. Lang, Tex.Com.App., 49 S.W.2d 715. "The bill of exceptions is not required to negative any positive fact or state of attending circumstances that would render the objectionable matter without prejudicial effect. Rather the presumption would be that the trial judge did his duty and that there was no modifying or justifying explanation to be made." Texas Indemnity Ins. Co. v. McCurry, Tex.Com.App., 41 S.W.2d 215, 218, 78 A.L.R. 760. Also, see West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W.2d 451, 455; Behringer v. South Plains Coaches, Tex.Com.App., 13 S.W.2d 334; Hubb Diggs Co. v. Bell,
Counsel's argument to the jury (1) "You are the taxpayers"; (2) "The taxpayers will have to pay the bill"; (3) "You as taxpayers are directly interested in this suit"; (4) "When you go above $25 per acre you will be taking the money out of your own pockets" are plainly direct appeals to the self-interest and prejudice of the jurors. Such arguments have many times been held to constitute reversible error. Plaintiff contends with reference to argument No. 4 that any reasonable person, competent and qualified to sit on a jury, would know that said statement was incorrect and that he couldn't be made to take the money out of his own pocket; that the verdict of the jury allowing the defendant $30 an acre for her land shows that the jury disregarded the argument complained of; that the bills are insufficient because some of the argument objected to *367
is not objectionable and such argument is not separated from that which is objectionable and appellant does not specify the language used that he claims is harmful. That when an objection goes "to the whole argument of the counsel and a portion thereof is not subject to the objection made, it does not sufficiently point out the error." Plaintiff cites in this connection LaGrone v. Chicago, R. I. G. Ry. Co., Tex. Civ. App.
We have given careful consideration to such contentions and think they cannot be sustained. The objections do not appear to be to the whole, or a substantial part of any counsel's argument, but to isolated portions thereof set out and quoted in the bills. The opening argument was not objected to at all. The seventh bill of exception shows, after setting out in the bill, different statements by plaintiff's counsel; that such statements and arguments were duly objected to in open court by defendant and she "excepted thereto because each such argument was not supported by the evidence, and dehors the record; was an appeal to the self-interest of the jury; was an attempt to align the jury as a party to the suit on the side of plaintiff; was an appeal to the prejudice of the jury", etc. The arguments 1 to 4, inclusive, heretofore quoted, certainly constitute an appeal to the self-interest of the jury and shows an attempt to align the jury as a partisan on the side of plaintiff and constitutes an appeal to the prejudice of the jury and would, we think, under the authorities, require a reversal, even in the absence of objection.
Assignments 3 to 13, inclusive, complain of the admission of testimony as to the value of defendant's land by witnesses assertedly not qualified to testify as to its value; testimony of the value of land generally in the same community as defendant's lands; testimony as to the price at which other lands were listed with a real estate broker; testimony as to the price per acre at which land had been bought and sold in Scurry County. In view of another trial, we call attention to the following authorities and holdings:
In Grayce Oil Co. v. Peterson,
Also, see Denison P. S. Ry. Co. v. Scholz, Tex. Civ. App.
By defendant's sixth proposition it is contended that the court erred in refusing to permit defendant's witness to testify that since the construction of the highway the course of drainage water had been changed and now runs out into Mrs. West's land and spreads over 5 or 6 acres thereof, making a lake of water on her farm. It was excluded upon plaintiff's objection that it was not admissible in a condemnation *368
case. We think it was admissible. Hall v. Wilbarger County, Tex. Civ. App.
We think the witness Gorman was not shown to have been qualified or authorized to testify that an underpass under the bridge constructed or to be constructed across Mrs. West's land would be available to Mrs. West for use as an underpass. Nor, do we think that the Commissioner Blackard was shown to be qualified or authorized to testify to what the Commissioners' Court would do with reference to the fences across the underpass, or, that other portions of the fences would be left there for the benefit of Mrs. West and that she would be permitted to use the fences placed there by the County, so that her livestock might go through the underpass.
We overrule defendant's assignments of error and propositions thereunder relative to the action of the court in ruling upon the exceptions to plaintiff's petition. The orders of the court overruling such exceptions are not shown in the reccord and the questions, are, therefore, not before this court.
We are of the opinion that the defendant's renditions of the property in question for taxes were admissible. We recognize that the authorities are not altogether in accord. Such rendition sheets are frequently held to be admissible, upon cross examination of the owner as to the-value of the property condemned. But, it has been further held to be admissible "as-a circumstance tending to show the value of the property." Burton Lumber Corp. v. City of Houston,
The judgment is reversed and the cause remanded.