City of Mart v. Hasse

• Decision Date: 21 January 1926
• Docket Number: (No. 292.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 281 S.W. 318
• Parties: CITY OF MART v. HASSE.
• Court: Texas Court of Appeals

281 S.W. 318

CITY OF MART v. HASSE.

(No. 292.)^*

Court of Civil Appeals of Texas. Waco.

January 21, 1926.

Rehearing Denied March 11, 1926.

Appeal from McLennan County Court; James R. Jenkins, Judge.

Condemnation proceedings by the City of Mart against A. Hasse. From the judgment awarding compensation, the City of Mart appeals. Reversed and remanded.

R. W. Cowan, of Mart, and Jake Tirey, of Waco, for appellant.

W. L. Eason, Stansell Bryan, and Sleeper, Boynton & Kendall, all of Waco, for appellee.

STANFORD, J.

This was a condemnation proceeding by appellant against appellee to ascertain the value of 42½ acres of land out of a 60-acre tract belonging to appellee, said land being condemned by appellant to be used as a site for a water reservoir, and to ascertain the increased or diminished value, if any, of the remaining 17½ acres by reason of said 42½ acres being condemned for said purpose. In reply to special issues the jury found: (1) That the city of Mart deemed it necessary to condemn said 42½ acres for the purpose of constructing a water reservoir; (2) that it was necessary to condemn said 42½ acres for said purpose; (3) that the reasonable market value of said 42½ acres at the time of trial is $115 per acre; (4) that before condemnation proceedings began appellant offered appellee $75 per acre for said 42½ acres; (5) that there was a difference in the market value of the 17½ acre tract just before and just after the condemnation of the 42½ acres; (6) that said difference was a decrease in the value of said 17½ acres; (7) that said decrease of said 17½ acres was $50 per acre; (8) that the amount of the vendor's lien notes against the 60 acres, in favor of the Union Central Life Insurance Company, was $2,296.92; (9) that the amount of county and state taxes against said 60 acres was $111.10. On these findings the court entered judgment in favor of the state and county for $111.10, and for the Union Central Life Insurance Company for $2,296.92, and for appellee for $3,354.48, and directing that the first two items above mentioned be paid by the county clerk of McLennan county out of a deposit of $5,525 theretofore made by appellant, and that the remainder of said deposit be applied to the court costs and to the amount awarded to appellee, and that appellee have execution against appellant for the remainder of the amount awarded him. Said judgment also granted to appellant an easement in and to said 42½ acres of land, fully describing same.

Opinion.

Under several assignments, appellant contends the court erred in permitting appellee, A. Hasse, to testify over the objections of appellant that he did not have any kind of property except the farm out there, and also to testify to the number and the amount of the notes against said land at the time appellee bought said land, and the number of said notes that he had paid; and also to testify that he had bought this land for a homestead and did not want to sell it, but keep it as a home. The appellant, under the authority of law in this state, had the right to condemn the 42½ acres of land out of the 60-acre tract in question. No issue was made, and none could be made, as to appellant's right to condemn said land for a site for a water reservoir for the city of Mart. The only issue involved in this case was the amount of damages to which appellee was entitled by reason of the 42½ acres being condemned, and the measure of his damages was the reasonable market value of the 42½ acres taken and the diminution in value, if any, to the remaining 17½ acres by reason of the 42½ acres being taken and used for a water reservoir. It was wholly immaterial whether or not he wanted to sell it, or bought it for a homestead, or wanted to keep it as such, or whether or not he had other property. This evidence was prejudicial to appellant's rights, in that it was calculated to and doubtless did create sympathy for appellee, and while the admission of this evidence probably should not be held reversible error, yet we think it was error to admit it, and it should have been excluded. G. H. & S. A. Ry. Co. v. Schelling (Tex. Civ. App.) 198 S. W. 1018. We sustain these assignments.

Under other assignments, appellant complains of improper argument to the jury made by appellee's attorney. The record discloses that, while appellee's counsel was making his argument to the jury, he made the following statement:

"Poor old man Hasse is at home to-day flat on his back, in bed, and is not able to attend court."

And that appellee's counsel made this further argument to the jury:

"It matters not what amount of damages you give poor old man Hasse; the mayor of Mart will continue to rare back and smoke his cigars, and the mayor and commissioners of the city and the city attorney will sleep sound tonight, but if you give A. Hasse less than $125 per acre for his land and less than $75 per acre damages to his remaining land, he will not be able to sleep, but will lie awake all night worrying on his sick bed."

And appellee's counsel, in said argument, stated further:

"The defendant, A. Hasse, while living in Palestine had a nice home, with orchards and various improvements, which he had prepared specially for a home, and traded the same for this tract of land in controversy for the purpose of making it his home; that he was now unable to follow his trade as a mechanic and desired to make this 60-acre tract of land his future home, but because of the condemnation proceedings he will be forced to abandon same, and was now too old and crippled up and physically unable to ever acquire and pay for another home."

Most of the above argument by appellee's counsel was not based on anything contained in the record, and was unrebuked by the trial court and no directions given by the trial court to the jury not to consider same, and is properly before this court by bills of exception, duly taken and presented, and was assigned as grounds for new trial. We think it is immaterial, in view...