City of Denton v. Hunt

• Decision Date: 01 December 1950
• Docket Number: No. 15191,15191
• Citation: 235 S.W.2d 212
• Parties: CITY OF DENTON v. HUNT et al.
• Court: Texas Court of Appeals

Page 212

235 S.W.2d 212

CITY OF DENTON v. HUNT et al.

No. 15191.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 1, 1950.

Rogers Teel, Fred H. Minor, and John L. Sullivan, all of Denton, for appellant.

Earl L. Coleman, of Denton, for appellees.

HALL, Justice.

This condemnation suit was instituted by the City of Denton, Denton County, Texas, by filing with the County Judge its petition to condemn certain land owned by appellees Ray V. Hunt et ux. and Minnie Louise Hunt, a widow, within the corporate limits of such City, out of the Fox-Hunt Addition, for the purpose of constructing a portion of U. S. Highway, No. 77.

On March 24, 1950, the special commissioners filed with the County Judge their award in the total sum of $6300 for the land taken and for damages to the remainder. Appellees in due time filed their objections to this award.

Trial was to a jury and in response to special issues it found value of the land taken to be $12,500 and the amount of damages to remainder of the land owned by appellees to be $10,500. Based upon such findings the trial court rendered judgment in favor of appellees for the sum of $23,000, together with interest thereon from June 7, 1950, at the rate of six per cent per annum.

The City of Denton's appeal to this court consists of ten points. Its first point is directed to error of the trial court in refusing to grant it a new trial, because the jury without its consent, in violation of Rule 281, Texas Rules of Civil Procedure, took with it, read and considered in the jury room, appellees' exhibit No. 7, being a printed chart of the oral testimony of appellee Ray V. Hunt, given on direct examination, which printed chart itemized the individual lots, giving the respective market value of that part of each lot taken and the claimed market value of the remainder of such lots before and after the condemnation on parts of such lots for highway purposes and summarizing the respective totals thereof. It was a memorandum to which he referred in refreshing his memory while on the witness stand.

This exhibit was introduced in evidence without objection from appellant. We are not here called upon and neither do we pass upon the question of its admissibility, but we are called upon to decide whether or not such instrument should be construed to be the 'deposition of a witness' contravening Rule 281, which reads as follows: 'The jury may take with them in their retirement the charges and instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused. Where part only of a paper has been read in evidence, the jury shall not take the same with them, unless the part so read to them is detached from that which was excluded.'

We do not construe the instrument to be in the form of a deposition of a witness, and overrule this point.

Appellant's points two and three refer to error of the trial court in refusing to give appellant's requested special issue No. 1; also error of the trial court in submitting its special issue No. 1. Special issue No. 1 submitted by the trial court is; 'What do you find from a preponderance of the evidence was the market value of those portions of Lots Nos. Three (3), Four (4), Seven (7), Eight (8), Twenty-seven (27), Nine (9), Eighteen (18), Twelve (12), Thirteen (13), Twenty (20) and Twenty-one (21) and all of Lot No. Eleven (11), condemned by the City of Denton, Texas, for a State Highway at the time it was condemned? Answer in Dollars and Cents.'

Appellant's requested special issue No. 1, which was refused by the court, is as follows: 'From a preponderance of the evidence what do you find was the market value of the strip of land condemned by the City for highway purposes at the time it was condemned, considered as severed land? Answer in dollars and cents ___' As is noted, the court's special issue No. 1 did not instruct the jury to consider the land taken as severed land, as did appellant's requested special issue No. 1. No doubt appellant's requested special issue No. 1 conforms to the requisites of such a special issue as set out by the Supreme Court in its opinion in the case of State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194, on page 201, we do not believe the Supreme Court in that case, however undertook to establish a hard and fast rule wherein city lots and blocks are involved rather than tracts of land, such as was before the court in that case. Be that as it may, appellant made no objection to the trial court's submission of special issue No. 1 and, by such failure, did not point out to the trial court defects of said issue. The rule is set out in the case of Shultz v. Dallas Power & Light Co., Tex.Civ.App., 147 S.W.2d 914, on page 916 (writ dismissed, judgment correct): 'It further appears that no objection was made in the trial court to Issue No. 1, as given. Even assuming that it imperfectly embodied the fact situation, the applicable rule is that, 'Whenever the court submits an issue incorrectly, and same is not objected to, then there is no error in the refusal of the court to give in addition thereto a requested special issue on the same subject, although correct. '' See other cases cited therein.

For the above reason we overrule appellant's points two and three.

For the same reason we overrule appellant's points four, five, six and seven.

We have given much concern to appellant's eighth and ninth points. They complain of the trial court's refusing to grant appellant a new trial because appellees recovered damages to the remainder of their lots which were noncontiguous to the strip of land taken for highway purposes, wherein they failed to plead, prove or establish any legal liability on the part...