State v. Helvey

• Decision Date: 06 February 1964
• Docket Number: No. 19,19
• Citation: 375 S.W.2d 744
• Parties: The STATE of Texas et al., Appellants, v. Mrs. Earl HELVEY, a Widow, Appellee.
• Court: Texas Court of Appeals

Page 744

375 S.W.2d 744

The STATE of Texas et al., Appellants, v. Mrs. Earl HELVEY, a Widow, Appellee.

No. 19.

Court of Civil Appeals of Texas, Tyler.

Feb. 6, 1964.

Rehearing Denied Feb. 27, 1964.

Charles E. Hughes, Sherman, for appellants.

Roy G. Baker, Baker & Bryant, Slagle & Kennedy, Sherman, for appellee.

DUNAGAN, Chief Justice.

This is a condemnation suit in which the State of Texas and County of Grayson (appellants) acquired a right of way easement for highway purposes from Mrs. Earl Helvey, a widow (appellee) for State Highway No. 75; and being unable to purchase same, filed petition for condemnation in the County Court at Law, Grayson County, Texas.

Condemnee, being dissatisfied with the award of the special commissioners in the sum of $2,004.00, appealed to the County Court at Law.

Upon a trial before a jury, judgment was entered in accordance with the verdict of the jury that appellee recover from appellants $5,908.75. The jury's verdict found the value of the 9.649 acres taken to be $4,824.50; the remaining 4.337 acres prior to the taking to be $2,168.50, and after the taking to be $1,084.25.

Appellants, by way of assignments of error 1 to 4, inclusive, claimed the Trial Court erred in overruling appellants' motion for new trial based upon evidence of an unaccepted offer before the jury from the witness, Mrs. Earl Helvey, appellee. The complaint is based upon the testimony of Mrs. Helvey wherein she testified in part on direct examination as follows:

* * *

'Q. Well, what would you say would be the market value?

'A. Oh, the market value----

'Q. Now, bearing in mind the price at which----

'A. We turned down $500.00 once for it.

'MR. HUGHES: As counsel knows, that is not admissible.

'MR. BAKER: I'll ask the witness again----

'THE COURT: I'll sustain the objection and instruct the jury not to consider any offers made for the property.

* * *

'MR. HUGHES: If you'll excuse me, Your Honor, we have an objection that possibly should be made out of the presence of the jury.

'THE COURT: Gentlemen of the jury, will you pass into the jury room, please?

'(JURY OUT)

'MR. HUGHES: Before this line of questioning goes further, Your Honor, at this time we move for a mistrial on the basis of an offer that was placed into the record. We had no chance to object to it in advance, in that she did not respond to the attorney's question, and we didn't expect it any more than Mr. Baker did, but we feel that it would prejudice this jury.

'THE COURT: When you rose to your feet I understood that an objection was made to it then. That's the reason I sustained the objection.

'MR. HUGHES: I made the objection then, but I was not able to make it before she answered the question. In other words, it got to the jury before I could do anything about it, and I'm afraid that on that basis this jury could not clearly consider----

'MR. SLAGLE: Judge, we think the Court could instruct the jury. It is not grounds for mistrial when the Court instructs the jury not to consider it for any purpose whatsoever, and she has testified to what she thinks the value is, and it's more than that.

'THE COURT: I overrule the motion for mistrial. I'm of the opinion that my instruction took care of it all right.

'MR. HUGHES: Your Honor, we wanted to be very clear that we made this motion. We feel that it was such a matter that the jury could not remove it from their minds. We have made our objection and we properly except to the Court's ruling.

'THE COURT: All right.'

Subsequently, Mrs. Helvey continued to testify on direct examination as follows:

'Q. Well, can you give us any figure as to what you think the reasonable cash market value of this remaining tract was immediately after the taking in your best judgment?

'A. Well, it would have to be $300.00 or more, anyway. Would that answer it?

'Q. Well, do I understand you now to say that it would be worth $300.00 an acre less after the taking?

Objection here was made by Mr. Hughes that it was a leading question and the Court sustained the objection. Continuing:

'MR. BAKER: I'll try to get at it another way. Now, let me go at it this way again, because I know this is difficult for you to follow. It is even for us lawyers. We established by your testimony what in your judgment was the value of, in your opinion, valuation of land is an opinion. What in your opinion was the value of this particular 4 acre tract immediately before the taking. Now, immediately after the taking what do you think was the reasonable market value of this tract of land that was left to you?

'A. Well, we refused $500.00 for all of that tract.'

At this point the judge sent the jury to the jury room and out of the presence and hearing of the jury Mr. Hughes again presented his motion for mistrial for the same reason that he previously gave and further that such error would prejudice the jury regardless of the judge's instruction. The court stated that when the jury returned he would instruct them again not to consider this evidence and stated further that he would like for counsel to instruct his witness not to testify concerning any offer and the witness answered 'I'm sorry.' Mr. Baker, in addressing himself to his client, Mrs. Helvey, said 'That's all right. You just don't know. We can't talk about offer * * *. Now, we're just talking about your opinion. * * *' The Court said 'let's don't go any further than to instruct her not to testify concerning any offer.' Mr. Baker replied 'Well, I'm trying to save further trouble.' The jury returned to the jury box and the court instructed them as follows:

'Gentlemen of the jury, you're instructed not to consider for any purpose in your deliberation any question made as to any offer and counsel for condemnee as well as counsel for condemnor join in asking the Court to instruct the jury concerning that so that you will be sure to eliminate any such answer from your mind of your consideration during your deliberation. The condemnee has asked for a ten minute recess. If you'll bear in mind the previous instruction the Court has given you, I'm going to excuse you for ten minutes and if you will remain in the hall until the bailiff calls, please.'

During this proceeding, Mr. Hughes stated 'Your Honor, we would be glad to agree to a ten minute recess if he wants to talk to his witness.' From the record, we would presume that this ten minutes recess was granted for the purpose of Mrs. Baker talking to his client in regard to this matter and that he did so. On cross-examination of this witness, Mr. Hughes propounded the following question:

'Q. Has it ever been used for any other purpose except farm land?

'A. Well, like I said, they tried to buy it off of us.'

Mr. Hughes then said: 'Your Honor, we are going to have to make the same motion' and the court again sent the jury to their room and the witness answered 'What can I say?' Now with the jury out, Mr. Hughes again moved for mistrial for the reason that an offer had again been drawn to the attention of the jury.

'THE COURT: I instructed counsel to instruct his witness not to make any reference to offers for any purpose.

'MR. SLAGLE: We both told her not to talk about any offer for purchase. All she said in response to his question was they tried to buy it off us and we have told her not to talk about any offers for sale.'

The court overruled appellants' motion for mistrial and instructed the jury again not to consider for any purpose during deliberation any offer to buy the land in question.

Six witnesses testified in the trial as to the value of the subject property. The appellants used two expert witnesses, Stanley Joe Hayes and Steve Gremmels. The appellee and owner, Mrs. Earl Helvey, testified, as did her son, Cleo Giles. In addition, the appellee used two expert witnesses, T. G. McGraw and M. O. Belden.

The appellants based their case upon the premises that the highest and best use for the subject land, and the use for which it was adapted, was for agricultural purposes and that its value was limited to that use. Testimony was received supporting this premise.

It was appellee's contention that the highest and best use for the subject land was either industrial or residential development and that it was adapted to either or both such uses and there were witnesses who so testified. The testimony of the witnesses as to the value of the strip taken was from $173.00 per acre to $800.00 per acre. Appellee's two expert witnesses, McGraw and Belden, testified that the value of the strip taken was $500.00 per acre and Mrs. Helvey and her son placed the value at $800.00 per acre. Appellants' expert witness, Hayes, testified to a value of $173.00 per acre and expert witness, Gremmels, testified to a value of $235.00 per acre.

It is settled that evidence of unaccepted offers to buy the land involved is not admissible in a condemnation suit. Lower Nueces River Water Supply District v. Sellers, et ux, Tex.Civ.App., 323 S.W.2d 324; Hanks v. Gulf, Colorado & Santa Fe Railway Company, 159 Tex. 311, 320 S.W.2d 333.

Appellee does not question that rule, but contends that the error became harmless because of the instruction of the Trial Court. Appellants contend that, by virtue of the repeated testimony of offer of sale in the face of the court's ruling and instruction to the jury, same was impressed in the jury's mind to such extent that it could not be cured by the court's instructions.

The question of whether or not this error was calculated to cause and probably did cause the rendition of an improper judgment in the case is a matter for the court to determine upon the whole record in the case. Rule 434, Texas Rules of Civil Procedure. Lower Nueces River Water Supply District v. Sellers, et ux, supra; Walker v. Texas Employers' Insurance Association, 155 Tex. 617, 291 S.W.2d 298.

Before an error may be made the basis of reversing a Trial Court judgment the appellate court must be satisfied that the error...