Abramson v. City of San Angelo

• Decision Date: 03 March 1948
• Docket Number: No. 9703.,9703.
• Citation: 210 S.W.2d 476
• Parties: ABRAMSON v. CITY OF SAN ANGELO.
• Court: Texas Court of Appeals

Page 476

210 S.W.2d 476

ABRAMSON v. CITY OF SAN ANGELO.

No. 9703.

Court of Civil Appeals of Texas. Austin.

March 3, 1948.

Rehearing Denied March 24, 1948.

Appeal from Tom Green County Court; I. J. Curtsinger, Judge.

Suit by City of San Angelo against M. Abramson to condemn land owned by defendant. From an adverse judgment, defendant appeals.

Affirmed.

W. A. Johnson, Sedberry & Williams, and M. E. Sedberry, all of San Angelo, for appellant.

Thos. G. Thigpin, and Glenn R. Lewis, both of San Angelo, for appellee.

HUGHES, Justice.

The City of San Angelo in furtherance of a program to enlarge and improve its system of parks along the course of North Concho River, which runs through the city in a general north to south direction, brought this suit to condemn five city lots owned by appellant, M. Abramson.

Appellant, dissatisfied with the award made by the special commissioners, appealed to the county court where a jury trial ensued, the result of which was that the aggregate value of the five lots was fixed at $2,000.

Several trial errors and jury misconduct are asserted, all of which will now be considered.

The following testimony of B. F. Snyder, a merchant, was offered by appellant and excluded:

That after he had sold his hotel business and in recent months before the trial, he looked around for a place to build himself a building. At the time of the trial he was engaged in the nickelodian business. In looking for a lot, he examined Lots Nos. 4 and 5 of appellant, and they suited him, and he offered appellant $6,000 in cash for the two lots, which the appellant rejected. Witness made no inquiry as to the market value of these lots, but relied strictly on his own judgment as to what they would be worth to him, and he made the offer in good faith.

Appellant, with commendable frankness, cites Stone v. Payne, Tex.Civ.App., Beaumont, 168 S.W.2d 503; 17 Tex.Jur., p. 446; and Sec. 699, McCormick and Ray on Evidence, as adverse authorities. No supporting authorities are referred to.

The rule announced by these authorities is that evidence of an unaccepted offer to purchase, made by one not a party to the suit, is inadmissible on the question of value.

We are asked to reconsider and revise this rule. The above authorities disclose that this character of evidence has long and on numerous occasions been excluded by our courts; also that the rule is one of general acceptance in other jurisdictions. Regard for stability of the law as well as our approval of the reasoning upon which the rule is based, force adherence to the rule and the conclusion that no error was committed in excluding the proffered testimony.

Improper jury argument of counsel for the City is assigned as error.

It appears that evidence had been introduced as to prices paid by the City to Bernie Akin and Sam Runkles for lots in the vicinity of appellant's property. The argument complained of, as shown by Bill of Exception, was to the effect that these prices did not necessarily represent their fair market value because the City was about to take these lots, the owners were forced to sell, and the City could afford to pay two or three hundred dollars more to each of these owners than the fair market value, or more than the amount it would have to pay through condemnation proceedings.

This argument was objected to on the ground that there was no evidence that the City had paid Akin and Runkles two or three hundred dollars more than the fair market value of their lots in order to avoid condemnation proceedings.

The trial court qualified appellant's Bill of Exception as follows:

"The argument of the City Attorney, Glenn R. Lewis, is not set forth above with entire accuracy. W. A. Johnson, attorney for defendant M. Abramson, had argued to the jury that the City was not being fair with Mr. Abramson in that it was trying to get his property without paying him as much for the same in comparison with what it had paid to Bernard Akin and Sam Runkles for their properties. In his closing argument Mr. Lewis directed the jury's attention to the argument which Mr. Johnson had thus made and then told the jury in substance that the court had defined the term `cash market value' as the amount in cash which property will bring when offered for sale by one who wishes to sell but is not compelled to do so and is bought by one who desires to buy, but is under no compulsion to do so; that the Akin and Runkles properties being in the path of the park improvement the City was under a certain compulsion to buy and further to be fair about it Runkles and Akin were faced with the necessity of selling in that the City could condemn if the parties could not come to terms; and that the City could afford to pay two or three hundred dollars more to each of said owners than the fair market value rather than have to go through condemnation proceedings. At this point the defendant made his objection and it was overruled, he excepting. Mr. Lewis then concluded his argument on this point by saying, `For that matter the amount paid under such circumstances might be a few hundred dollars off in either direction from the cash market value."

Appellant cites Texas Employers Ins. Association v. Drayton, Tex.Civ.App., Amarillo, 173 S.W.2d 782, Writ Refused, WOM, and Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, in support of this assignment.

The Barrington case involves jury misconduct. The Drayton case, aside from the announcement of general principles, is of no assistance. We quote Syllabus 10 of 173 S.W.2d 783 to show there can be no comparison between the nature of the argument there made with the argument here:

"Where, in compensation proceeding, employee's counsel, in argument, continued, notwithstanding objections and court's admonitions to jury, to criticise insurer's counsel for introducing competent evidence as to employee's criminal record and there was reasonable doubt as to the effect of such argument on jury, reversal was required."

We believe the argument was legitimate and within the rule that counsel have the right to discuss the evidence and draw their own conclusions, deductions and inferences therefrom.

Forced purchases or sales do not, as the court instructed the jury, form a proper standard for determining market value. The sales of the Akin and Runkles lots were not voluntary in the usual sense of the word as to either buyer or seller. The City was compelled to by if its park program was to proceed, and the owners were compelled to sell in view of the City's right of eminent domain. Whether these facts caused the price paid to be below or above the market value was a fit subject for debate. The City Attorney drew the inference most favorable to his client. That his remarks were argumentative only is unquestionably shown by the statement of Mr. Lewis, fairly made to the jury, that "the amount paid under such circumstances might be a few hundred dollars off in either direction from the cash market value."

Appellant testified and gave his opinion as to the market value of his lots. On cross-examination he was asked what value he had placed on these lots in rendering them to the City for taxation in 1941. Objection was made to this question on the ground that "what he rendered them for at any time has nothing to do with the market value; it is immaterial and irrelevant." This objection was overruled.

Without further objection the City offered in evidence the tax rendition of appellant for the years 1941 and 1944.

Later in the trial appellant orally requested the court to instruct the jury not to consider these renditions for any purpose except as they might bear upon the credibility of appellant as a witness and the weight to be given his testimony. This motion was overruled. Appellant then orally requested the court to instruct the jury that these tax renditions "be not considered by the jury upon the issue of market value of the property involved in this suit." This motion was refused.

Contending that there was error in the above actions of the court, appellant cites Jackson v. Goldberg, Tex.Civ.App., San Antonio, 283 S.W. 860, a suit for specific performance of a contract, in which the court held that the amount for which lands have been rendered by the owner for taxes affords no basis for, or criterion by which to measure the value of land. In support of this holding the court cited Railway v. Kell, 4 Willson Civ.Cas.Ct.App. § 150, 16 S.W. 936; McLane v. Paschal, 74 Tex. 20, 11 S.W. 837; City of San Antonio v. Diaz, Tex.Civ.App., 62 S.W. 549; International & G. N. Railway v. Goswick, Tex.Civ.App., 83 S.W. 423, affirmed 98 Tex. 477, 85 S.W. 785, and Payne v. Beaumont, 245 S.W. 94, Writ Refused.

Of these cases only the Kell case was a condemnation suit.

In that case the court held similar evidence inadmissible, but stated that if there was error in excluding the evidence it was harmless.

In McLane v. Paschal, the assessment offered...