Texas Power & Light Co. v. Hering

• Decision Date: 02 November 1949
• Docket Number: No. A-2218.,A-2218.
• Citation: 224 S.W.2d 191
• Parties: TEXAS POWER & LIGHT CO. v. HERING et ux.
• Court: Texas Supreme Court

224 S.W.2d 191

TEXAS POWER & LIGHT CO. v. HERING et ux.

No. A-2218.

Supreme Court of Texas.

November 2, 1949.

Rehearing Denied November 30, 1949.

Bryan, Maxwell & Bryan, Waco, Cox, Brown, Daniel & Curtis, Temple, John B. Daniel, Jr., Temple, Burford, Ryburn Hincks & Ford, Dallas, Clarence A. Guittard, Dallas, for petitioner.

Fitzpatrick & Dunnam, Waco, W. V. Dunnam, Waco, for respondents.

GRIFFIN, Justice.

This is a condemnation suit by petitioner power company against respondents Hering in the County Court of McLennan County, Texas. The case was tried once and on appeal was reversed by the Waco Court of Civil Appeals in an opinion found in 178 S.W.2d 162. At the beginning of the trial of this present cause the defendants Hering filed in the case and read to the jury an admission that the power company had the right of eminent domain and had taken all steps required to condemn the 5.3 acres right-of-way, and admitted that the only issue to be tried was the amount of damages to which defendants were entitled "resulting from such taking" and that burden of proof was upon defendants and asked the trial court for the right of defendants' counsel to open and close the argument. Upon a trial, judgment was rendered for the power company for their easement, and for defendants for a total sum of $7,653.60, plus interest from date of appropriation of the easement. Upon appeal, the Court of Civil Appeals affirmed the trial court's judgment. 218 S.W.2d 301. Application for writ of error was duly filed by the power company, and we assumed jurisdiction of this cause by virtue of the conflicts alleged between the holding of the Court of Civil Appeals in this case and the holdings of this court in American Produce Co. v. Gonzales, Tex.Com.App., 1 S.W.2d 602, and Baker Hotel Co. v. Rogers, 138 Tex. 398, 160 S.W.2d 522, and other cases from courts of civil appeals.

There being no question raised on this appeal as to the "excessiveness" of the verdict and judgment as such, but the complaint being that the charge of the court did not properly limit the jury in the amount of damages they could award, we hold that it was not necessary for the power company to make an assignment that the verdict was excessive in order to complain of the charge given and testimony introduced. American Produce Co. v. Gonzales, Tex.Com.App., 1 S.W.2d 602; Baker Hotel Co. v. Rogers, 138 Tex. 398, 160 S. W.2d 522; Pure Food Products et al. v. Gibson et al., Tex.Civ.App., 118 S.W.2d 925. Writ denied.

Having taken jurisdiction of the cause we will proceed to dispose of all the assignments of error raised by the petitioners. Points 1 and 2 complain of the holding of the Court of Civil Appeals on the point above discussed and are sustained.

Points 3 and 4 complain of the Court of Civil Appeals holding harmless error the failure of the trial court to properly charge the jury on the limited nature of the easement taken. Points 5, 6 and 7 complain generally of the Court of Civil Appeals holding on testimony of witnesses and matters of evidence.

We will first discuss the matter of harmless error. It was held by this court under Rule 62a (the predecessor of Rules 434 and 503) that the burden to show probable error was upon the complaining party. Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 823, wherein the court said: "Under the doctrine of harmless error, our courts have always declined to disturb a ruling or judgment of the trial court, although palpably erroneous, where it appeared that no injury resulted to the complaining party. Rule 62a merely enlarged this doctrine, so as to cast upon the complaining party the burden of showing at least that the error probably resulted to his prejudice. It was not the purpose of the rule, we think, to require the complaining party to demonstrate that, but for the erroneous ruling, a different judgment would have resulted. Such interpretation would in many cases operate as the denial of a substantial right." By virtue of the provisions of Rule 434 the appellate court is made the body to judge whether the appellant has been harmed by the error complained of. In making this determination the appellate court will determine this question from a consideration of the record as a whole. Weisner v. Missouri, K. & T. R. Co., Tex.Com.App., 207 S.W. 904; Burrell Engineering & Construction Co. v. Grisier, 111 Tex. 477 240 S.W. 899; Lancaster v. Fitch, 112 Tex. 293, 246 S.W. 1015; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; American Nat. Bank v. Sheppard, Tex.Civ.App., 175 S.W.2d 626, Writ Refused Want of Merit; Ligon v. Green, Tex.Civ.App., 206 S.W.2d 629.

Now let us apply the above rules of law to the record before us to determine whether or not such error as may have been committed by the trial court in its refusal to instruct the jury as to the nature of the easement taken by the power company in the present suit was harmless error. A reading of the record shows that each and every witness as to value of the strip covered by the easement and to the remainder of the tract of land had his attention called to the kind and character of the easement, either by the attorneys placing such witness on the stand or by opposing counsel, and in most instances by both such attorneys. In addition, while...