Texas Power & Light Co. v. Hering

• Court: Texas Court of Appeals
• Writing for the Court: Tirey
• Citation: Texas Power & Light Co. v. Hering, 218 S.W.2d 301 (Tex. App. 1949)
• Decision Date: 27 January 1949
• Docket Number: No. 2834.,2834.
• Parties: TEXAS POWER & LIGHT CO. v. HERING et ux.

218 S.W.2d 301

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

No. 2834.

Court of Civil Appeals of Texas. Waco.

January 27, 1949.

Rehearing Denied March 10, 1949.

Appeal from McLennan County Court; D. Y. McDaniel, Judge.

Proceeding by the Texas Power & Light Company against Jim Hering and wife to condemn an easement across defendants' land for construction of a transmission line. From an adverse judgment, plaintiff appeals.

Affirmed.

Cox, Brown, Daniel & Curtis, of Temple, and Bryan, Maxwell & Bryan, of Waco, for appellant.

Fitzpatrick & Dunnam, of Waco, for appellees.

TIREY, Justice.

This is a condemnation suit instituted for the purpose of acquiring an easement with limited uses only, and it is the second appeal. See Tex.Civ.App., 178 S.W.2d 162.

We quote the pertinent parts of the court's charge to the jury:

"Special Issue No. 1: What do you find from a preponderance of the evidence, if any, was the number of acres of land left in the Hering farm immediately after the condemnation and taking of the easement on the 5.3 acres of land?" To which the jury answered "65.935."

"Special Issue No. 2: What do you find from a preponderance of the evidence, if any, was the reasonable market value per acre of the 5.3 acres of land in the right-of-way across the Hering tract immediately before the same was condemned on the 4th day of March, 1943?" To which the jury answered $250.00."

"Special Issue No. 3: What do you find from a preponderance of the evidence, if any, was the reasonable market value per acre of the 5.3 acres of land in said right-of-way across the Hering tract of land immediately after the condemnation of the same on the 4th day of March, 1943, and the construction of the power line thereon?" To which the jury answered "$50.00."

"Special Issue No. 4: What do you find from a preponderance of the evidence, if any, was the reasonable market value per acre of the remaining acres of the Hering tract of land, not included in the right-of-way, immediately before the condemnation of the 5.3 acres and the construction of the power line thereon?" To which the jury answered "$250.00."

"Special Issue No. 5: Do you find from a preponderance of the evidence, if any, that the market value per acre of the remaining acres of the Hering tract, not included in the right-of-way, was reduced by reason of the condemnation of the 5.3 acres and the construction of the power line thereon?" To which the jury answered "Yes."

"Special Issue No. 6: What amount, if any, in dollars and cents, do you find, from a preponderance of the evidence, if any, that the remaining acres of the Hering tract, not included in the right-of-way, was reduced in value, if any, per acre, by the construction of the power line across the same?" To which the jury answered "$190.00."

The judgment followed the verdict of the jury and awarded damages to defendants and awarded the limited easement on the property to the Power Company, and plaintiff has appealed.

Point 5 is: "The error of the court in overruling the objection and exception by plaintiff to all of the court's charge, for the reason that no language is used which would show that the right-of-way taken and condemned by plaintiff was a right-of-way or easement with limited uses only, and that the jury was entitled to be instructed in connection with such limited use." Plaintiff timely excepted to the failure of the court to so charge, but such exception was overruled.

But appellees contend in effect that if the Power Company's exceptions to the court's charge were sufficient to require the court to instruct the jury to take into consideration the limited uses of the easement in arriving at their damages, that such error was harmless because the Power Company did not set up in its motion for new trial that the award of damages by the jury was excessive, and therefore such error, if any, at most was harmless. We think this contention must be sustained.

In Houston & T. C. R. Co. v. Boozer, 70 Tex. 530, 8 S.W. 119, 120, 8 Am.St.Rep. 615, our Supreme Court had before it the question of an incorrect charge with reference to the measure of damages that a minor could recover for injuries. This particular charge failed to limit the minor's recovery to the date beginning with his majority. In disposing of the case the court said: "We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts." The foregoing situation is analogous to the case at bar, and we have been unable to find any case where the Supreme Court has changed or modified the rule there announced in 1888. We think the above rule in effect is now a part of Rule 434, Texas Rules of Civil Procedure, wherein it says: "* * * provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court * * *." Since the parties agreed and stipulated the limited uses to be made of the easement, and since the witnesses were interrogated in the trial of the cause as to the value of the land before and after the taking, having in mind the limited uses to which the...