Houston Lighting & Power Co. v. Boyles

• Decision Date: 04 April 1970
• Docket Number: No. 7113,7113
• Citation: 456 S.W.2d 714
• Court: Texas Court of Appeals
• Parties: HOUSTON LIGHTING & POWER COMPANY, Appellant, v. Howard BOYLES et al., Appellees.

Page 714

456 S.W.2d 714

HOUSTON LIGHTING & POWER COMPANY, Appellant, v. Howard BOYLES et al., Appellees.

No. 7113.

Court of Civil Appeals of Texas Beaumont.

April 4, 1970.

Rehearing Denied June 4, 1970.

Second Rehearing Denied June 25, 1970.

Baker, Botts, Shepherd & Coates, Houston, for appellant.

Reynolds, White, Allen & Cook, Houston, for appellees.

PARKER, Chief Justice.

The appeal is from a judgment based upon a jury verdict awarding appellees the gross sum of $225,152.50 for the taking of two easements across certain property of appellees and the damage to the remainder. The first easement was over and across a tract of land containing 202.1 acres, such being a strip 80 feet in width running the entire length of the property and contained 16.603 acres. The second tract was 200 feet by 350 feet containing 1.607 acres out of the larger tract. On the first or strip easement, appellant condemned an easement for its poles, wires, appurtenances, etc.; while on the second tract, the land was to be used as an electrical power sub-station.

Appellant comes forward with five 'areas of complaint,' each supported by appropriate points of error. Since appellees follow this method of presentation in their brief, we adopt the same procedure, rather than considering separately each point of error.

The first area of complaint is addressed to the action of the trial court in permitting evidence relating to the desirability of placing transmission lines underground as opposed to their placement upon overhead steel towers. At the time of trial, long after the taking, the steel towers had been erected upon tract one, and the lines had not been placed underground. The thrust of the argument is that appellant, as a corporation to whom the power of eminent domain had been delegated by the State, was under no legal or moral obligation to place the lines underground; consequently, so it is contended, the cross-examination of its witness, Chetham-Strode, with reference to the possibility of placing such lines underground 'was to enflame the minds of the jury and to lead the jury to believe that the Company was not using due care and caution in the manner and method of design and construction of their lines.'

We agree with appellant in its contention that once the power of eminent domain has been delegated to a corporation, the exercise of that power (unless arbitrary, capricious or mixed with fraud) is not subject to judicial scrutiny. Texas Electric Service Co. v. Linebery, 327 S.W.2d 657, 663 (El Paso Tex.Civ.App., 1959, error ref., n.r.e.); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 88 (1940); Vilbig v. Housing Authority of City of Dallas, 287 S.W.2d 323, 327 (Dallas Tex.Civ.App., 1955, error ref., n.r.e); West v. Whitehead, 238 S.W. 976, 978 (San Antonio Tex.Civ.App., 1922, error ref.); Luby v. City of Dallas, 396 S.W.2d 192, 197 (Dallas Tex.Civ.App., 1965, error ref., n.r.e.).

The cross-examination of appellant's witness, Chetham-Strode, came after similar testimony had been elicited without objection from appellant's right-of-way agent, Graham. After many pages of testimony from Chetham-Strode, appellant made a motion for mistrial based upon the occurrence, and an alternative motion to instruct the jury to disregard such testimony. The Court denied the motion for mistrial but instructed the jury at that time, not to consider such testimony. In addition, there was a special instruction included in the charge directing the jury 'not to consider any testimony relating to whether or not transmission lines may or should be placed underground.'

The testimony elicited on cross-examination was pertinent, if admissible, only upon the question of damage to the remainder. In such a situation, it has been said that 'almost any fact that bears upon the increase or decrease in the market values before, and after the establishment of the public facility, are admissible.' Rayburn, Texas Law of Condemnation, § 124, p. 396. And, while evidence of unsightliness, potential danger, interference with radio and television reception, etc., was proper, we are not persuaded that the particular cross-examination was proper. The appellees, through this cross-examination, succeeded in implanting in the jury's minds the fact that appellant had chosen the cheap way of constructing its improvements across appellees' lands; that in so doing it the cheap way, appellant had caused damage to the appellees for which they should be compensated, possibly to the extent of the difference in cost of the buried versus exposed lines. This was improper; and, the trial court eventually agreed with appellant and granted the motion instructing the jury to disregard the testimony and give it no consideration.

Appellees, whose land was being taken for the benefit of the public in providing the distribution of needed electricity, had no voice in the type of improvement the electric company would erect on the easement taken. They were entitled to be fully compensated, a fact which no one disputes, but they were not entitled to direct the manner in which the power company went about the discharge of its lawful occupation. It was for appellant, clothed with the power of the sovereign to condemn the land, to choose the manner in which the electricity would be distributed, and it was not appellees' choice. In our opinion, it was error to permit the evidence to be introduced.

In so holding, however, we do not reach the end result sought by appellant--a reversal of the case. In this aspect, our decision is controlled by Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 368 (1962), wherein the Court laid down this rule:

'If evidence is erroneously admitted, error exists; if its admission was not reasonably calculated to cause and probably did not cause an improper judgment, it is still error but is not Reversible error. The question of whether a particular error is reversible error depends upon whether it was reasonably calculated to cause and probably did cause an improper judgment and presupposes the existence of error. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596.' (Emphasis by the Court.)

Thus, recognizing the error, we turn to a consideration of the record to determine if the cross-examination was reversible error under Bridges.

Appellant, accepting its burden of showing reversible error, says that 'the jury awarded over four times the amount of money that its witness Tom Edmonds testified that the land taken was worth and almost three times as much as its witness Hurlock testified the land was worth.' We find that the explanation is true to the record but remain unconvinced. By the same token, the jury did not find that the land taken was worth nearly as much as appellees' witnesses believed. The short answer to the contention so advanced is that the jury was not required to believe Any of the expert witnesses--those on either side of the controversy. As was said by Chief Justice Alexander in Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64 (1945):

'Jurors in weighing the evidence before them have a right to use their common knowledge and experience in life. If the opinions of the experts as given in the evidence do not comport with the jurors' ideas of sound logic, the jurors have a right to say so. Otherwise there could not be a free discussion of the evidence in the jury room. (Citations omitted.)

The jury's award is well within the range of the expert testimony and we are not convinced that the jurors disobeyed the double instruction of the Court, considered the inadmissible testimony, and thereby brought about the rendition of an improper judgment. The first area of complaint is overruled.

The second area of complaint relates to the refusal of the trial judge to require the appellees' only appraisal witness to produce a copy of his official appraisal report which he had prepared for appellees' counsel on the property in question. Appellees offered as their expert one George Reed who was extensively cross-examined by appellant's counsel. Finally, counsel asked if he had prepared a written report of his appraisal for appellees' counsel and was answered affirmatively, but Reed stated that he did not have it with him in court. Being asked if there was anything different in the report and his testimony, appellees' objection was sustained and the witness was not required to answer. Upon the bill of exception, appellant developed that in actuality there had been three such appraisal reports prepared, but the witness contended that there was nothing in any report which was not contained in his testimony. Under the record as it was then made and now stands, neither appellant nor this court is in position to dispute the answer of the witness as to the differences, if any, in his testimony and his reports.

In closing the bill of exception, counsel for appellant demanded the report be produced, to which the court replied:

'He has already testified that he has given everything today that he had in his report, isn't that what you said?'

The witness answered the Court by saying: 'Yes, sir. Everything I have discussed and talked about in the report.'

Insofar as we are aware, the civil courts of Texas have not adopted the so-called Jencks Rule (Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); or the Jencks Act, 18 U.S.C.A. § 3500. See also: Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, 469 (Tex.Crim.App., 1961)).

Appellants' reliance upon Dobbins v. Gardner, 377 S.W.2d 665 (Houston Tex.Civ.App., 1964, error ref., n.r.e.); Biggers v. State, 358 S.W.2d 188, 189, 191 (Dallas Tex.Civ.App., 1962) error refused, no reversible error 360 S.W.2d 516 (Tex.Sup., 1962); Winters v. Winters, 282 S.W.2d 749 (Amarillo Tex.Civ.App., 1955, no writ); Wooten v. State, 348 S.W.2d 281 (Austin Tex.Civ.App., 1961, error ref., n.r.e.), is misplaced. We have examined each...