State v. Baker Bros. Nursery, A-9086
| Decision Date | 20 February 1963 |
| Docket Number | No. A-9086,A-9086 |
| Citation | 366 S.W.2d 212 |
| Parties | The STATE of Texas, Petitioner, v. BAKER BROS. NURSERY, Respondent |
| Court | Texas Supreme Court |
Will Wilson, Atty. Gen., Austin, Morgan Nesbitt, Robert G. Scofield and Mitchell D. Stevens, Asst. Attys. Gen., for petitioner.
Simon & Simon, Fort Worth, for respondent.
This is a condemnation suit brought by the State of Texas against Baker Bros. Nursery, a domestic corporation, to condemn 12.246 acres of land out of a 28 acre tract located within Tarrant County, Texas, and the city limits of Fort Worth, Texas. Proper proceedings were instituted and an appeal taken from the award of the Commissioners to the County Court at Law of Tarrant County, Texas. On a trial before a jury and in response to the jury's answers to special issues, a judgment in favor of defendant Baker Bros. Nursery and against the State of Texas, as plaintiff, was awarded as follows: For the value of the land taken for the controlled access highway, $18,369.00; for the difference in value of the two remaining tracts of the original 28 acres, the sum of $4,290.00.
On an appeal by the defendant corporation to the Court of Civil Appeals, the cause was reversed and remanded to the trial court for a retrial. 357 S.W.2d 163.
The State is the petitioner in this court and complains of the action of the Court of Civil Appeals in holding that the admission of the testimony of the witness Lutz was reversible error.
In the Court of Civil Appeals, defendant had complained of the admission of the testimony of the witness Meacham, but the Court of Civil Appeals found no error in the admission of his testimony. We agree with this holding.
(1) This case was tried in the trial court prior to our decision in the case of State of Texas v. Oakley (1962) Tex., 356 S.W.2d 909, but the rulings of the trial court as to the testimony of the witnesses Meacham and Lutz were in conformity with that opinion. The Court of Civil Appeals recognized that the testimony of these two witnesses as to comparable sales as a basis for their respective opinions as to the market value of the tract here condemned was properly admitted in view of the fact that the court limited the testimony for the purpose of showing the information and data that they considered in arriving at the market value of this property. As to Lutz, the Court of Civil Appeals held there was no proper limitation on his testimony and therefore it was reversible error to admit this testimony.
In this we hold the Court of Civil Appeals erred. We have read the statement of facts and find the following:
When the State first asked Mr. Lutz if he found any sale of property which he considered as comparable to this (property) 'upon which to form an opinion as to the market value of this property?' the following objection was made:
Counsel:
The Court: 'You may have a running bill.'
Counsel: 'That I might have a running bill and then I won't have to be jumping up here.'
The Court: 'Overruled.'
We have been unable to find any ruling of the court previously on objections to Lutz' testimony. We have read the testimony of witness Meacham-who preceded Lutz on the witness stand-and find objections as follows: 'If the Court please, may it be considered that my objection to the comparable sales or other sales is immaterial and irrelevant and goes to all this line of testimony without my having to repeat the objection?' The Court: 'Yes.'
Counsel for the State then said:
'Your Honor, please, sir, I want to offer this in evidence for the limited purpose of showing what the appraiser considered in arriving at his opinion of the value and it's not offered as direct original evidence of the facts stated therein; it's a matter of showing the basis of his opinion.'
Defendant's Counsel:
The Court: 'Overrule it and I permit it for the limited purpose showing the information data that he considered.'
Presuming these objections are the prior ruling of the court referred to by defendant's counsel in his quoted objections to Lutz's testimony, they show the trial Judge was properly limiting this character of testimony. That this is true is shown by the following proceedings at the beginning of the defendant's counsel's cross examination of the witness Lutz:
We hold that the trial court properly limited Lutz' testimony and that this testimony was admissible within the...
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State ex rel. Herman v. Wilson
...356 S.W.2d 909, 95 A.L.R.2d 1207 (1962); Baker Brothers Nursery v. State, 357 S.W.2d 163 (Tex.Civ.App.1962), rev'd on other grounds 366 S.W.2d 212 (1963); City of Houston v. Collins, 310 S.W.2d 697 (Tex.Civ.App.1958); City of Houston v. Huber, 311 S.W.2d 488 (Tex.Civ.App.1958); Wichita Fall......
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...property of appellees as being not compensable in this action, but the trial court overruled such motion. See State v. Baker Bros. Nursery, 366 S.W.2d 212, 214, (Tex.Sup.). Appellant timely objected and excepted to the giving of special instructions number 3, 4 and 5 in the court's charge a......
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Texas Power & Light Company v. Adams, 207
...the plaintiff relies principally on State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207, 1962, and State v. Baker Bros. Nursery, 366 S.W.2d 212 (S.Ct.) 1963, wherein the court restated and reiterated its holding in the Oakley To ascertain the primary basis for plaintiff's conten......