Texas Electric Service Co. v. Nelon

ON REMITTITUR

TESCO’s sixth point asks that a re-mittitur be applied to that part of the court’s judgment which established the damages based upon the difference, as found by the jury, in the values of con-demnees’ remainder before and after the taking.

We find no ground for a remittitur in this case, and we overrule this point.

The values were well within the range of the market value testimony of the expert witnesses. There is no indication of any passion or prejudice on the part of the jury, and there is no manifest excessiveness in the damage award of the judgment. Urban Renewal Ag. of City of San Marcos v. Bethke, 420 S.W.2d 803 (Tex.Civ.App., Austin, 1967, writ ref’d n. r. e.); 22 Tex.Jur.2d, Eminent Domain, Sec. 319, “Excessive or insufficient verdict,” p. 443 (1961).

OTHER EVIDENTIARY MATTERS

TESCO’s seventh point complains that the trial court erred in overruling its objections to the admission of exhibits and in permitting condemnees’ counsel to testify concerning them in the jury’s presence. TESCO’s eighth point complains that these exhibits employed an averaging process which did not constitute competent, admissible evidence in support of the jury’s answers to Special Issues Nos. 3 and 4.

During his cross-examination of Daniels, TESCO’s value witness, the attorney for condemnees used charts listing the four sales of properties which Daniels had previously testified were comparable to con-demnees’ remainder. Counsel for con-demnees then advanced what he termed logical extensions of Daniels’ prior testimony. Daniels rejected those conclusions as being based upon an incorrect appraisal procedure.

The conclusions shown on the exhibits included (1) a computation of the average sale price ($656.50) of the four properties; (2) a computation of the difference in per-acre price between the oldest sale (March 1973) and the newest (September 1974) amounting to $375; and (3) a computation of the average monthly rate of increase ($20) over the 18-month period separating the two sales. Counsel for condemnees then added an increase of $180 based upon the $20 average monthly increase over the nine-month period extending from the last sale cited by Daniels to the date of taking on June 3, 1975. These computations resulted in the sum of $836.50 per acre as the value of condemnees’ remainder based upon the “logical extension” of Daniels’ own testimony.

TESCO made no objection to this method of cross-examination until the charts on which these computations were made were themselves offered in evidence. At that point TESCO objected to their admission for the reason that Daniels had denied their validity and counsel for condemnees had not taken the stand to prove them up.

We have examined this portion of the record and the events in the examination of the opposing witness leading up to the introduction of the exhibits. While it seems that condemnees’ counsel made a jury argument at the evidentiary stage, there is nothing in what occurred which amounted to reversible error. T.R.C.P. 434, “If Judgment Reversed.” It is our conclusion that the error, if any, was not such as was reasonably calculated to cause, nor did it probably cause the jury to return an answer to any issue in the verdict any different from what would have been returned had the error not occurred.

We overrule TESCO’s seventh and eighth points.

By its ninth point TESCO complains that the trial court erred in overruling its “Supplemental” Motion for New Trial on the grounds of newly discovered evidence.

The evidence by which TESCO hoped to obtain a new trial is the Rasmussen Reactor Safety Study released by the Nuclear Regu*871latory Commission on December 1,1975, the date this case went to trial.

There was testimony at the hearing on the motion that the Rasmussen Report contained the statement that it is not possible to estimate the probabilities of acts of sabotage which would result in danger or loss of life. TESCO sought to use this statement at a new trial to show that the opinion of Dr. Girardot, condemnees’ expert witness, was not based upon scientific investigation of the risk involved in the transportation of nuclear waste material. TESCO asserts this statement is evidence that there is no basis in fact for the alleged fear.

At the hearing Dr. Girardot testified the Rasmussen Report did not attempt to analyze the hazards of nuclear waste transportation. He also testified it was not the study the Nuclear Regulatory Commission was making of the hazards of transportation of nuclear waste to which he referred at trial and which, upon completion, he would regard as having some basis in the science of probability.

There was also testimony at the hearing by TESCO’s expert, Dr. C. William Garrard, Jr. Dr. Garrard was employed as a nuclear engineer and manager of nuclear fuel by Texas Utilities Service Company and was responsible for nuclear fuel at the Comanche Peak plant.

Dr. Garrard admitted on cross-examination that he did not attempt to obtain a copy of the report until after trial, although he had mentioned it to TESCO’s attorneys prior to trial; that a draft copy had been available in 1974; and that on November 14, 1975 an article appeared in “Science”, a periodical to which his employer subscribes. The article, which was admitted in evidence at the hearing, was critical of the Rasmussen Report because it did not analyze “the likelihood of catastrophes from sabotage or acts of war, or the risks involved in other elements of the fuel cycle, such as transportation and waste disposal”.

Although he did not recall having read the “Science” article, Dr. Garrard also admitted that the Rasmussen Report concerns “the chances of people living within the vicinity of a nuclear power plant being injured or killed, or sustaining property damage as a result of a reactor failure inside the plant” or some other event occurring inside the plant.

TESCO’s argument at the hearing was that the testimony of Dr. Girardot, con-demnees’ expert, might have been different at trial if he had the final Rasmussen Study, a position which Dr. Girardot expressly rejected.

We have examined this “newly discovered evidence” and fail to perceive how it bears upon the material issue of market value at time of trial. We hold that TES-CO has not satisfied the requirements set forth in Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017 (1892) and quoted with approval in New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex.Sup., 1962), viz: “A new trial will not be granted on the ground of newly-discovered evidence, unless it is made to appear that it has come to the knowledge of the applicant since the trial; that it could not have been sooner discovered by the exercise of diligence; that it is not merely cumulative; that it is not for the purpose of impeachment.”

We overrule TESCO’s ninth point.

Judgment is affirmed.