Morgan v. State

• Decision Date: 15 February 1961
• Docket Number: No. 5433,5433
• Citation: 343 S.W.2d 738
• Parties: Bernard C. MORGAN et al., Appellants, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 738

343 S.W.2d 738

Bernard C. MORGAN et al., Appellants, v. STATE of Texas, Appellee.

No. 5433.

Court of Civil Appeals of Texas, El Paso.

Feb. 15, 1961.

Rehearing Denied March 15, 1961.

Andress, Lipscomb, Peticolas & Fisk, El Paso, for appellants.

Will Wilson, Atty. Gen., Joe G. Rollins, H. Grady Chandler, L. P. Lollar, Edward A. Cazares, Asst. Attys. Gen., for appellee.

FRASER, Justice.

The State of Texas, as plaintiff, condemned 295,773 square feet of industrial property owned by J. Francis Morgan, Bernard C. Morgan, Leo P. Morgan and W. D. Morgan, defendants. The Special Commissioners appointed by the court awarded $236,618, or 80cents per square foot for the land. The State appealed, and the jury fixed the value at 60cents per square foot, or $177,463.80. Defendants having previously withdrawn the $236,618 as authorized by statute, judgment was entered in favor of the State of Texas against the defendants for $59,154.20. Appeal has been perfected to this court.

The parcel of land taken by condemnation consisted of 6.79 acres which was a part of a 21.033-acre tract owned by defendants.

Appellants' first point claims error in the court's refusal to permit witnesses to testify on direct examination as to sales of land of smaller dimensions than one acre. Defendants presented witnesses to testify about the sale of a 6000-square-foot tract, and of an 8799 square foot tract. These tracts were a part of the tract owned by the defendants, and sold for $1 per square foot. The court indicated and fixed the size of comparable sales at one acre (43,560 square feet), and excluded evidence of sales of any smaller size. There was sales other than the two mentioned, which were excluded.

These matters of the value of land severed by condemnation have always presented much difficulty. It is not a voluntary sale on the part of the condemnee, and, in many cases, a taking which he bitterly resents. In arriving at the market value of the land taken, it seems always the case that there are many witnesses and appraisers, and the jury is obliged to consider a great mass of testimony with wide variation in opinions of value. Because of these highly divergent opinions as to the value of the land taken, it is necessary for the trial judge to exercise considerable discretion, and we have not seen any case where it has been possible to enunciate a general rule that would be useful and acceptable in the majority of cases. Each case has presented peculiar and particular difficulties. It is for these reasons that appellate courts have been obliged to consider carefully the discretion exercised by the trial judge in his relings. In many cases of this type, there is a tendency to speculate and to offer evidence that is largely conjectural or speculative in effect. The very nature of this type of case, with each set of facts being different and the opinions being so widely divergent, places a very difficult and severe burden on the trial judge, because of the fact that often he has no useable precedent to follow. Here the trial judge set, as a standard, comparable sales of one acre or more in extent, ruling out sales of smaller tracts. It is difficult to assess the propriety of this ruling, because two of the tracts were sold from the same section of land from which the severed land was taken; but it must be admitted that these smaller tracts fronted on the street and were, of course, much shallower in depth. Of course there might well be a different value for a very small tract than that of an acre or more, as many considerations enter into the seller's position in selling off small tracts. Because this matter is submitted to a jury of laymen, the trial judge has to lay down some rule, and we are reluctant to say, here, that his action was an abuse of his discretion. He was the trial judge, and he had to operate by some sort of standard. This is obviously the course he considered best calculated to produce the greatest amount of proper evidence. Because juries have so much latitude, and because there has been such a divergence in opinion testimony, the courts have even enlarged the law and rules regulating remittitur to the extent that now the appellate court is expected to require a remittitur in the amount it thinks proper if, in its opinion, the award is too high. This, in effect, makes an appellate court a fact-finding or trial court--somewhat of an innovation in the law as we know it.

As we understand the law, the decisions and rulings of the trial court must be upheld unless there is clear evidence that the trial court abused its discretion. Taking all facts into consideration, we do not believe that such is the case here. There was considerable testimony that the tract involved was best suited for light industry and warehouses. The tract severed was 6.79 acres, out of a tract of more than 21 acres. All things considered, therefore, we do not believe that the judge abused his discretion in ruling out evidence on sale of tracts smaller than one acre in area. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W.2d 595; State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194; Johnson v. City of Richardson, Tex.Civ.App., 206 S.W.2d 98. As to cases touching on comparable sales: Dennis v. Dallas, C. & S. W. Ry. Co., Tex.Civ.App., 94 S.W. 1092; Dickey's Estate et al. v. Houston Indep. School Dist., Tex.Civ.App., 300 S.W. 250; Minyard v. Texas Power & Light Co., Tex.Civ.App., 271 S.W.2d 957. For these reasons, this point is therefore overruled.

Appellants' second and third points allege error in the trial court's refusal to permit them to cross-examine the State's witnesses with reference to tracts smaller than one acre. We have examined this problem, and we do not believe there is error presented. It has long been decided, of course, that you cannot do indirectly what you cannot do directly; and, here, defendants endeavored to test the witness' qualifications, in part, by eliciting from him the evidence that had been excluded on direct examination. We do not believe the record shows that the trial court's rulings here handicapped defendants from testing and exploring the qualifications of the witnesses. A reading of the record discloses that the matters were alluded to in some of the cross-examination. We believe that the record shows that defendants were alloved enough scope to determine and exhibit the qualifications of the witnesses without cross-examination as to whether they knew about the excluded sales and the terms of such. Again, in matters like this, both the textbooks and the cases point up the burden placed on the trial judge, and the necessary discretion awarded him, in order that he can meet his trial responsibilities. We cite: Wigmore on Evidence, section 1808; Texas Law of...