McConnico v. Texas Power & Light Co.

• Decision Date: 17 March 1960
• Docket Number: No. 6325,6325
• Citation: 335 S.W.2d 397
• Parties: Mrs. J. E. McCONNICO, Appellant, v. TEXAS POWER & LIGHT COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 397

335 S.W.2d 397

Mrs. J. E. McCONNICO, Appellant, v.TEXAS POWER & LIGHT COMPANY, Appellee.

No. 6325.

Court of Civil Appeals of Texas, Beaumont.

March 17, 1960.

Rehearing Denied April 27, 1960.

W. G. Walley, Jr., Beaumont, R. C. Musslewhite, Lufkin, for appellant.

Ned Shands, Jr., Liberty, Burford, Ryburn & Ford, Dallas, for appellee.

McNEILL, Justice.

This is a condemnation proceeding.Appellee filed its petition with the County Judge of Angelina County to condemn an easement for electrical transmission to be constructed by it over appellant's land in said county.Special commissioners appointed by the County Judge awarded appellant the sum of $13,500 as damages by reason of the condemnation.Twice this sum was deposited by appellee in the registry of the court and appellant withdrew the sum of $13,500 therefrom, all as provided by Art. 3268, Vernon's Ann.Tex.Civ.St. Appellee filed its objection to the award and trial was had to a jury in the county court.

The easement or right of way condemned covered a tract of 4.91 acres of appellant's property.The high line would run so as to leave on the south side a tract of 6.4 acres of land and a larger tract to the north.The case was submitted on eight issues.Special IssueNo. 1 required the jury to find the reasonable market value of the strip containing 4.91 acres immediately before the easement was placed thereon, to which the jury answered $3,928.Special IssueNo. 2 required the jury to find the reasonable market value of this strip immediately after the easement was placed thereon, to which the answer was $785.Since the other issues are not directly involved, they are not described, but the total amount of damages allowed by the jury, including value of the easement amounted to $5,428.Upon this verdict the court struck a balance between the total amount allowed appellant as damages in the sum of $5,428 and the $13,500 which she had theretofore drawn from the registry of the court and rendered a net judgment of $8,072 in favor of appellee against appellant, and instructed the clerk to return the additional $13,500 deposited to appellee.

Appellant seasonably filed her amended motion for new trial which was overruled, as hereinafter more fully set forth, and appellant complains thereof.

Before the merits are reached we are met with appellee's counterpoints urging that since the transcript and statement of facts were filed after extension of time granted upon motions which failed to show good cause for late filing, the appeal should be dismissed.We have given consideration to these points but believe they should be overruled, and it is so done.

Appellant's first point is that since the trial court found that the award of the jury was inadequate he should have granted her motion for new trial and the second point asserts that the trial court erred in overruling the motion conditioned that appellee file a remittitur for the amount of $294.60 found by the court to constitute such inadequacy.

Among the grounds asserted in the amended motion for new trial was one that the award of damages made by the jury for the value of the easement taken was grossly inadequate by reason of the valuation given by the jury to the strip of land within the right of way taken after the taking by appellee.In overruling the amended motion for new trialthe trial court did so 'subject to a remittitur by plaintiff(appellee) of $294.60 on the judgment recovered by plaintiff against the defendant in this cause, to-wit, $8,072, said $294.60 being the difference in the finding of the jury in answer to Special IssueNo. 2 and the highest value testified to by any witness as to the value of the strip being taken immediately after the condemnation.'This order further provided that if appellee failed to file such remittitur within the time prescribed by the court'then defendant's Amended Motion for New Trial will be and is in all things granted.'Appellee filed such remittitur within the prescribed time.

Appellee counters appellant's first two points by stating that the trial court failed to make any finding that the award of damages was inadequate and that the answers of the jury were amply supported in the evidence.The court made no express finding on inadequacy; he had appellant's motion for new trial to dispose of and it asserted: (1) that the verdict of the jury in response to Special IssueNo. 2 was without support of any evidence in the record; (2) that the answer to IssueNo. 2 was against the overwhelming weight of the evidence; and (3) that the damage awarded by the jury was grossly inadequate by reason of the valuation set by it upon the strip of land within the easement taken immediately after the taking.While it was not clear upon what ground or grounds the court overruled the motion, it may be inferred that he was of the opinion that the answer of the jury to IssueNo. 2 did...