City of Amarillo v. Betts
| Decision Date | 20 June 1968 |
| Docket Number | No. 360,360 |
| Parties | CITY OF AMARILLO, Texas, Appellant, v. Horace S. BETTS, Appellee. . Tyler |
| Court | Texas Court of Appeals |
C. J. Taylor, Jr., City Atty., Howard W. Perdue, Asst. City Atty., Amarillo, for appellant.
Lockhart, Lindsey & Neal, E. H. Lindsey, Amarillo, for appellee.
This suit was instituted by the appellee, Horace S. Betts, against appellant, City of Amarillo, for damages for the partial demolition of a building. The City Commission of Amarillo had found the building to be a nuisance and ordered it demolished under the ordinances of the city. The case was submitted to the jury on Special Issues and in response of the jury thereto, the court entered judgment for appellee. From this judgment appellant duly perfected its appeal.
Upon the trial of the case the jury, in response to Special Issue No. 1, found the building to be a nuisance. Also, in response to Special Issues Nos. 4 and 5, the jury found the market value of the lot and building thereon in question, immediately prior to the beginning of the demolition, to be $2,500.00 and immediately after the demolition by the city ceased, to be $700.00. Based upon the jury's findings, the court rendered judgment for the appellee in the sum of $1,800.00.
Appellant under its first five points of error asserts that the trial court used an incorrect measure of damages in submitting Special Issues Nos. 4 and 5. It insists that since the jury found the building to be a nuisance, the correct measure of damages is the reasonable value of the material therefrom after its demolition, less the reasonable costs of the abatement of the nuisance, citing as its authority, City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W . 816 (1923).
Appellant made no objection to the court's charge to the jury on the ground it urges here or any other ground. In failing to make such objection to the charge, appellant has waived any objection to the court's charge on the ground of a wrong or incorrect measure of damages. The points of error now urged that the court's charge permitted the jury to find damages based on an incorrect measure may not be sustained and must be overruled. Howell v. Bowden, 368 S.W.2d 842 (); Hamilton v. Fant, 422 S.W.2d 495 (Tex.Civ.App., 1967, Austin, n.w.h.); Rule 274, Texas Rules of Civil Procedure.
Appellant in its Points 6 through 8 complains of the trial court's action in permitting appellee Betts to testify over its timely objection to the market value of his property before and after the partial destruction thereof because the witness was not shown to be qualified to give an opinion on such values. These points of error are sustained.
The only witness called to testify for appellee upon the trial of this case was the appellee himself, who, since 1944, has resided in Adrian, Texas, about 15 miles west of Amarillo. Over appellant's objection, the appellee was permitted to testify that when he saw the property in August of 1966, with repairs of $400.00 or $500.00, he thought it was worth $6,000.00. When he next saw the property on December 20, 1966, its value was $1,200.00. The demolition began on December 19, 1966, and ceased on the following day at the request of appellee. It was never shown that appellee had an opinion as to the market value of his property. He was never qualified in any manner on the question of market value and no predicate was offered to show that appellee had any knowledge of the market value of the property in Amarillo, Texas. The witness was never asked the market value of this property. This testimony was not sufficient to show the market value of the property at the times in question. The record shows that the property did have a market value.
We presume that when this witness was talking about the value of the property or what it was worth, he was talking about market value . The trial court erred in permitting this witness, over appellant's timely objection, to testify as to what the property was worth, or what its value was, without a clear showing that he was testifying concerning the market value of the property and that he was qualified to give such opinion. Tennessee Gas Transmission Company v....
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