City of San Antonio v. Buffalo

307 S.W.2d 142, 1957 Tex. App. LEXIS 2147

Opinions

POPE, Justice.

This is a condemnation suit and concerns the application of the harmless error rule. City of San Antonio has appealed from a jury verdict in favor of condemnees, Joseph A. Buffalo and wife. City presents as its single point the contention that the court failed to strike the inadmissible expert testimony of one witness. In our opinion, the error is harmless.

Condemnees presented two experts on land values. Dorothy Avent, one of con-demnees’ witnesses, admittedly testified properly and used the correct legal measure of damages. Tom Etheridge, though qualified and though he testified without objection on direct examination, on cross-examination showed that he did not observe the rule announced in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979. He included the damages to the remaining portion of the property in fixing the value of the severed strip which was taken. After City learned that Etheridge’s testimony was grounded on the wrong rule, City moved that the evidence be stricken, but the trial court denied the motion. In this there was error.

In determining whether, error is prejudicial, we may look to the whole record. Dallas Ry. & Term. Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 382; Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 851. The charge, in three issues, submitted the correct measure of damages. We do not hold that' all error is cured if the record contains some proper testimony. An examination of the whole record, however, demonstrates that the jury in this case, not only probably did not consider the improper evidence; it shows that the jury in returning its verdict, in fact did not consider the improper evidence about the strip taken.

The jury, in answer to special issue number one, decided that the market value of the condemned strip, considered as severed land, was $1,600. The improper Etheridge testimony was that the strip was worth only $1,500. Dorothy Avent, on the other hand, testified that the severed strip was worth $2,000. The jury answer, therefore, shows that the jury paid no heed to the value stated by Etheridge, but followed the testimony of Dorothy Avent, which alone supports the higher figure. The jury found in answer to the second special issue that the market value of the land exclusive of the condemned strip, immediately before the strip was condemned, was $7,750. In answer to the third special issue, the jury found that the market value of the land immediately after the strip was condemned was $6,150. In other words, the damages amounted to $1,600. Etheridge had testified that the difference between those two values was $2,000. Dorothy Avent, however, testified that the difference was $1,600, the exact amount found by the jury.

The findings show on their face that the jury believed and followed the opinion of Dorothy Avent, and refused to follow the opinion of condemnees’ other witness, Mr. Etheridge. Since it appears that the jury followed the testimony of Dorothy Avent rather than the Etheridge testimony, the result is the same as if the improper part of his testimony had been excluded. The error is harmless.

The judgment is affirmed.