City of Ft. Worth v. Burton

On Motion for Rehearing.

Appellee urges that we erred in our original ' opinion in sustaining appellant’s third assignment: (1) Because appellant’s bill of exceptions does not affirmatively show that the remarks of the court of which complaint is made were uttered in the presence and hearing of the jury; and (2) because this error, if any, could only affect the question of the excessiveness of the verdict, and that this court failed to affirmatively hold the verdict to be excessive.

In support of the first proposition the case of Waggoner v. Dodson, 96 Tex. 6, 68 S. W. 813, 69 S. W. 993, and many other cases are cited. It is true that in Waggoner v. Dodson the 'Supreme Court did intimate, without holding, that Chief Justice Conner, of this court, was correct in declaring the rule to be:

“That a party desiring to present for revision a ruling of the character involved in this case must do so by bill of exception which in terms is so specific as to point out the precise error intended to be relied upon, and that it should state the facts so as to exclude any reasonable conclusions of fact other than those stated upon which the decision could be maintained.”

The opinions in all the cases cited by ap-pellee were rendered prior to the amendment of article 1612, Revised Civil Statutes 1911, in 1913 (Acts 33d Deg. c. 136), by which were added:

“But an assignment shall be sufficient which directs the attention of the court to the error complained of,”

While the former strictness as to form has been somewhat relaxed by reason of this above amendment, yet we understand the rule still to be that in order for an assignment to be held sufficient it must point out the specific error of which complaint is made. West Texas Supply Co. v. Dunivan, 182 S. W. 425; Wardlow v. Andrews, 180 S. W. 1161. Statutes and rules as to the form and sufficiency of assignments should be liberally construed, so as not to cut off the approach of parties in good faith seeking relief for errors ímejudicial to them in the trial of the case. Land Co. v. McClelland Bros., 86 Tex. 190, 23 S. W. 1103, 22 L. R. A. 105; Orange Lumber Co. v. Ellis, 153 S. W. 1180; 'Rice v. Dewberry (Sup.) 93 S. W. 721. The bill of exceptions upon which the third assignment is based, while it does not say in so many words, makes it apparent that the remarks of the court objected to were uttered in the presence and hearing of the jury. If any doubt as to this conclusion could arise by reason of the failure to so state in so many words, it is removed by the supplemental charge, which instructed the jury to disregard such remarks. Hence we conclude that appellee’s first contention must be overruled.

The second point raised was decided by the majority of the court, adversely to appellee’s contention in T. & P. Ry. Co. v. Rasmussen, 181 S. W. 212, 218, and for the reasons there given the second contention -cannot be sustained. As in the Rasmussen Case, we do not pass upon the question of the ex-cessiveness vel non of the verdict, but only hold that the remarks of the court were of a nature to and probably did increase the verdict beyond the amount which the jury would otherwise have found.

It is further urged that we erred in sustaining the fifth assignment; that a different rule obtains in condemnation proceedings from the one applicable to other suits as to the duty of the court in charging upon the different elements of damages. Appellee cites us to the following cases, to wit: Crystal City & U. R. Co. v. Boothe, 126 S. W. 700; B. & G. N. Ry. Co. v. Elliott, 148 S. W. 1125; City of El Paso v. Coffin, 40 Tex. Civ. App. 54, 88 S. W. 502; Wichita Falls & W. Ry. Co. v. Wyrick, 147 S. W. 730—to sustain his contention that the charge complained of was proper and was not on the weight of the evidence. Wg have read each of these cases, and believe that each is distinguishable from this case; but, if not, we are not prepared to follow a Court of Appeals decision which would hold that the court was required or authorized to instruct the jury that, in passing upon the market value of the larid injured or appropriated, they should consider certain mentioned elements of value, such as partie-*233ular improvements, its adaptability to the raising of certain crops, its location with reference to market or to business, etc., which elements of value in the introduction of the testimony were included in the hypothetical questions propounded to the witnesses used as experts on the question of value, and which were evidently considered by such witnesses in determining the market value of the land, and entered into their expressed opinion as to such market value. It is true that in suits involving the injury to land, or the appropriation thereof, it is proper for the court to charge the jury that it is the right of the owner to have his damage measured by the extent of the injury to the land used for any lawful purpose to which he had appropriated it, desired to appropriate it, or to have it adapted (St. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908); yet we do not think under this rule the court would be justified in selecting certain elements of value which have already been considered by the witnesses upon value in determining their opinion, and call the attention of the jury particularly to these elements. Such an instruction involves rather an element of value than one of damage. In a case like this, where there was an entire appropriation of the land, the measure of damages would be the reasonable market value of the land, all things considered, at the time of such appropriation. In the charge objected to the court in effect, singled out certain, bits of evidence tending to establish certain elements of value and specifically instructed the jury that they might consider such elements in determining the market value of the land. We still hold that the charge as given was on the weight of the evidence.

The motion for rehearing is overruled.