Gaskins v. State ex rel. Dept. of Highways

• Decision Date: 21 February 1967
• Docket Number: No. 41024,41024
• Citation: 425 P.2d 979,1967 OK 49
• Parties: Eddie L. GASKINS and Eloise Gaskins, Husband and Wife, William R. Stanley and Juanita Oma Stanley, Husband and Wife, and D. K. Roach, Plaintiffs in Error, v. STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 979

425 P.2d 979

1967 OK 49

Eddie L. GASKINS and Eloise Gaskins, Husband and Wife, William R. Stanley and Juanita Oma Stanley, Husband and Wife, and D. K. Roach, Plaintiffs in Error, v. STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the

State of Oklahoma, Defendant in Error.

No. 41024.

Supreme Court of Oklahoma.

Feb. 21, 1967.

Syllabus by the Court

1. This Court will not substitute its judgment for that of the jury in the matter of damages to be awarded for the condemnation of property for a public use where the evidence on that issue is conflicting, nor will it disturb the verdict of a jury if supported by any competent evidence.

2. A party may not complain of the admission of evidence over his objection, where other evidence of the same tenor was admitted without objection.

3. Plaintiff in error should support propositions raised in brief with argument and citation of authority, and a failure to do so will be considered an abandonment of the proposition.

Appeal from the District Court of Comanche County; Luther B. Eubanks, Judge.

Appeal from judgment rendered by jury for defendants in condemnation case. Defendants appeal. Affirmed.

Charles D. Crandall and LeRoy Powers, Oklahoma City, for plaintiffs in error.

Thomas N. Keltner, Oklahoma City, for defendant in error.

McINERNEY, Justice.

This is an appeal by plaintiff in error, defendant in the trial court, from a jury verdict in a condemnation action brought by defendant in error, plaintiff in the trial court, resulting in a judgment less than the Commissioners' report. Eddie L. Gaskins and Eloise Gaskins, husband and wife, and William R. Stanley and Juanita Oma Stanley, husband and wife, the fee simple owners of the property, will be referred to as defendants, D. K. Roach, lessee under a lease of the premises involved, as defendant unless otherwise designated as defendant lessee, and The State of Oklahoma, ex rel. Department of Highways as plaintiff, their respective positions in the trial court.

Plaintiff instituted this action to condemn certain property abutting U.S. Highway 281 in the City of Lawton, Oklahoma. A tract of land 250 feet in width, upon which was located a frame building known as the Southern Club, owned by the defendants and leased by the defendant lessee, was included in the widening of the highway and is the subject of this appeal. Commissioners were appointed and fixed the award at $20,095.00, which was deposited with the Court Clerk and drawn down by the defendants according to their various interests. Both parties demanded a jury trial, and the case proceeded to trial. The date of the taking of the property was fixed by the judge at pre-trial, and by agreement of the parties, as February 1, 1963.

The defendant Eddie Gaskins and three appraisers, together with the defendant lessee, testified for the defendants. The plaintiff presented the engineer employed by the Highway Department and three appraisers. The testimony of the various witnesses as to the value of the property, before and after the taking, was sharply conflicting, the defendants' evidence being in the range of a high of $70,000 to a low of $47,423 and the plaintiff's being from a high of $7,850 to a low of $6,967. This evidence was presented to the jury, and after instructions and argument, the jury returned a verdict fixing the amount of damages to the defendants at $8,850.00, the defendant lessee to receive $500 and the other defendants, the owners of the land, $8,350.00.

It is from this verdict that the defendants appeal. Although there were twelve grounds of error alleged in the motion for new trial and thirteen assignments of error alleged in the petition in error, including a ground not presented to the trial court in their motion for new trial; i.e., the Journal Entry not being correct, the defendants present only three propositions for reversal.

The propositions will be considered in the numerical order in which they were presented.

Defendants' first proposition is that the evidence relating to the valuation of defendants' property for tax purposes, elicited by plaintiff's attorney, was inadmissible and prejudicial. This general statement of the law is correct. The assessor must prepare a list of all real property in the county and then must fix a valuation thereon for tax purposes (68 O.S.1961 § 15.52, now 68 O.S.Supp.1965 § 2471(d)). The assessor's tax valuation is not admissible as evidence in a condemnation proceeding to determine the value of the property. Grand River Dam Authority v. Thompson, 187 Okl. 129, 101 P.2d 843; Champlin Refining Co. v. Donnell, 173 Okl. 527, 49 P.2d 208, 103 A.L.R. 157. But this general statement of the law and the error urged by the defendants do not apply in this case. Prior to the testimony complained of by the defendants, the defendant Gaskin, on direct examination, was asked 'Your taxes were about what?', and answered 'two hundred and something'. The defendants then produced a witness, Raymond Green, who also testified on direct examination by defendants that the taxes were $213.89. The defendants elicited the valuation of defendants' property for tax purposes in the first instance. A party may not complain of the admission of evidence under these circumstances. Yellow Transit Freight Lines, Inc. v. Allred, Okl., 302 P.2d 985; H. F. Wilcox Oil & Gas Co. v. Jamison, 199 Okl. 691, 190 P.2d 807; Wood v. Kerr Dry Goods Co., 190 Okl. 197, 121 P.2d 992.

Defendants' second proposition is that plaintiff's witnesses Horecek and Grubb testified to the condition of the property four to five...