Housing Authority of City of Dallas v. Shambry
| Decision Date | 05 November 1952 |
| Docket Number | No. 10086,10086 |
| Parties | HOUSING AUTHORITY OF CITY OF DALLAS v. SHAMBRY et ux. |
| Court | Texas Court of Appeals |
Scurry, Scurry & Pace, Dallas, Ethan B. Stroud, Dallas, for appellant.
McKool, McDaniel & Bader, Dallas, Bert Bader and Mike McKool, Dallas, for appellees.
This is a condemnation case tried in the County Court of Dallas County, Texas, at Law No. One, to which court the appellees appealed on June 21, 1951, being dissatisfied with the Commissioners' Report awarding damages on the grounds that such award was whooly insufficient and that appellant had no right or power to condemn said property. Pending the appeal in said County Court, the appellant deposited into the court the sum of $3,850, that being the amount of the Commissioners' award, and on the 17th day of July, 1951, obtained possession of appellees' property. The appellant, the Housing Authority of the City of Dallas, sought the appropriation of the whole of appellees' property, and appellees in an amended pleading filed January 16, 1952, in said County Court, admitted appellant's cause of action except as to the amount of damages to which appellees were entitled.
The case was tried before a jury on January 16 and 17, 1952, and the following issue was submitted to the jury:
'what do you find from a preponderance of the evidence was the reasonable herein defined, on July 17, 1951, of hereindefined, on July 17, 1951, of the condemned property in this suit, together with all improvements thereon?'
The jury found in answer to this issue that the market value of appellees' property was $7,350.
The appeal before this Court is based on six points:
First Point
The verdict of the jury in the amount of $7,350 is excessive and clearly the result of inflamed prejudice and unwarranted sympathy.
The court erred in permitting the appellant, Vera Shambry, to testify as to the number of customers which entered her cafe building each week and erred in permitting her to testify concerning the amount and kind of vegetables which she grew in her garden.
The court erred in permitting each of the defendants' witnesses to testify as to the market value of defendants' property based on sales of comparable property, which sales took place subsequent to and after the time that the market value of defendants' land was to be determined.
The trial court erred in allowing appellees' interest on the amount of the jury verdict from the date of the filing of the Condemnation Commissioners' award.
The court erred in refusing to allow the expert witness Smith to testify concerning two properties which had been offered for sale for a considerable period of time, the expert witness having testified as to the comparability of these properties with the property involved in this lawsuit.
The court erred in refusing to permit the expert witness Smith to testify as to comparable sales of improved property in the vicinity of the property involved in this case, said witness having testified as to the comparability of said properties and having pointed out the differences which were taken into account in making such comparison of values.
The property consisted of a tract of land 60 feet wide extending from Fish Trap Road to Albrect Street, a distance of 475 feet. There was a four-room house facing Fish Trap Road and two houses on Albrect, one of which was in an uncompleted condition. The house on Fish Trap was occupied by the then owners, appellees herein, as a residence, and one of the buildings on Albrect was used by them as a cafe and had been used as such since 1945, serving beer, soda water, candy and lunches.
There were a number of witnesses testifying for both the appellant and appellees. The appellees testified as to the use of the property as a home and as a place of business, and as to the general type of construction of the buildings and as to the cost of the three places for lumber, material and labor. Testimony was given as to the location of schools, churches, bus lines, etc., and as to the value of the property.
A. C. Washington testified that he had been in the real estate business for twenty years, was acquainted with the area of the property under consideration, that he had made many appraisals, described the premises, that the cash market value of the property was $8,254.50, that the property in the area being taken over by the Dallas Housing Authority has increased in value from forty-five to fifty per cent from 1945 to 1951, and over one hundred to five hundred per cent from 1939 to 1951, and testified as to the value of comparable property.
Witness Joe J. Kennemer, real estate agent for three years, detailed his experience and fixed the value at $8,450.
Witness C. L. Kitchens gave evidence as to his experience in building and real estate businesses and placed a value of $9,550 on the premises.
Witnesses for the appellant were Joseph R. Smith who gave in detail his various connections and his activities in the real estate appraisal business for a long period of time and fixed the sum of $3,750 as the fair market value of the property; Howard Dunham testified that he had been in the real estate business for thirty years, and he placed a value of $4,400 on the property; W. C. Miller had been in the real estate business since 1937 and had specialized training in this field, and he felt that the property was worth $4,400. The latter two witnesses collaborated together in making the appraisal, and hence the same valuation. These witnesses did not recall the unfinished building and neither of them ever bought or sold any property in the area.
We believe that the evidence in the record reasonably supports the verdict of the jury. The market value of the property was an issue of fact that the jury was called on to determine from the opinions of the several witnesses which witnesses the jury heard and observed them as they testified, and being the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony, resolved the facts in favor of the appellees insofar as it did. The amount fixed by the jury was greater than that testified to by appellant's witnesses and less than that testified to by appellees' witnesses, and we are not authorized to disturb the finding. Thompson v. Janes, Tex.Civ.App., 245 S.W.2d 718, affirmed Tex., 251 S.W.2d 953. In the Thom...
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