City of Wichita Falls v. Jones

456 S.W.2d 148, 1970 Tex. App. LEXIS 2534
CourtCourt of Appeals of Texas
DecidedJune 12, 1970
Docket17127
StatusPublished
Cited by10 cases

This text of 456 S.W.2d 148 (City of Wichita Falls v. Jones) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Wichita Falls v. Jones, 456 S.W.2d 148, 1970 Tex. App. LEXIS 2534 (Tex. Ct. App. 1970).

Opinion

OPINION

BREWSTER, Justice.

This condemnation case was brought by the City of Wichita Falls against Mr. and Mrs. Grady B. Jones to acquire the fee simple title to a part of a lot owned by the latter for use in a street building project.

For the sake of brevity we will refer to the City of Wichita Falls throughout this opinion as the City.

Mr. and Mrs. Jones owned Lot 16, Block 54 of the Addition in question. This lot was 120 feet across the front or west side, 120.9 feet across the rear or east side, 200.-6 feet across the north side and 186 feet across the south side.

The land being taken by the City was a part of this Jones’ lot was triangular in shape, and was off the southeast corner of the lot. This triangular piece of land was 28.74 feet off the south side of the lot, 30.-65 feet off the east side or rear part of the lot, and the hypotenuse of the triangle was 44.45 feet in length. No part of any building on the lot was located on the part.taken by the City.

All but three questions were removed from the case by stipulation of the parties. The three questions left to be decided by trial were: (1) the market value of the triangular piece of land that the City took title to, considered as severed land, immediately before the taking; (2) the market value of the rest of the Jones’ lot, excluding the triangular part that the City took fee simple title to for the purpose of building the street, immediately before the fee simple title to that part was taken by the City; and (3) the market value of the Jones’ lot, excluding the triangular part taken by the City, immediately after this triangular part was taken by the City.

These three questions were submitted to a jury and answered by it as follows: (1) $750.00; (2) $66,750.00; and (3) $60,750.-00.

On receipt of this verdict the trial judge rendered judgment against the City and in favor of Mr. and Mrs. Jones for $6,750.00 with interest from July 18, 1969 (the date of the taking).

This appeal by the City is from that judgment and urges 24 points of error.

Before any evidence was offered in the trial of the case the City filed and presented to the court an instrument it designated as a “Motion to Suppress Evidence.” It was what lawyers commonly call a Motion in Limine. The City sought by the motion to have the trial judge order counsel for the condemnees to refrain from making statements about, referring to, or offering evidence during the trial bearing on nine different matters.

The Statement of Facts shows that when this motion was presented to the judge in *150 limine he sustained paragraphs 1, 2, 4 and 5 of the motion and overruled all other parts of it.

In its points of error numbered 1, 2, 3, 4, 5, 7, 16 and 19 the City contends that the trial court committed reversible error by his action in overruling a particular paragraph of the City’s Motion to Suppress Evidence or Motion in Limine.

It is not necessary in passing on these points to here set out in this opinion the contents of the various paragraphs of this Motion in Limine.

The Supreme Court in 1963 settled the law in Texas on this point by holding in substance that a trial judge can never commit reversible error by just overruling a motion in limine which has as its objective the suppression of evidence. See Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963).

Since the trial court’s ruling complained of in the City’s points of error numbered 1, 2, 3, 4, 5, 7, 16 and 19 can never constitute reversible error, as held by the Supreme Court in the Hartford Accident' and Indemnity Co. case, supra, we overrule each of those points.

The following is quoted from the opinion in the Hartford Accident and Indemnity Co. case, supra, on page 335: “It seems that the converse of our holding in the Bridges case [Bridges v. City of Richardson, Tex., 354 S.W.2d 366] is that although the overruling of a motion in limine may be error, it is never reversible error.

“If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case * * * should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error.”

The statement of facts here reveals that when the evidence that the City claims to be germane to its points of error numbered 1, 2, 3, 4 and 5 was actually introduced during the trial of the case that counsel for the City made no objection whatever to such evidence.

Under the holding of the Hartford case, supra, the City cannot complain of that admission of such evidence where it made no objection to it at the time it was offered. These are additional reasons why we must overrule the City’s first 5 points of error.

The City contends in its point of errof No. 6 that the trial judge committed reversible error in permitting the condem-nee, Jones, to testify in answer to a question from his counsel that an island would be in the center of the street being built. We overrule this point because the city attorney made the same proof himself later during the trial while conducting the direct examination of the city engineer, Mr. De-land. Deland testified in substance that the plans for the street in question call for 2 lanes in either direction separated by a median.

It is not necessary here for us to even pass on the question of the admissibility of such evidence. This is true because even if the evidence was inadmissible it could not constitute reversible error in this case. A litigant cannot successfully complain of the admission of evidence as being reversible error where such complaining party did himself offer into evidence testimony from another witness to establish the same facts that he now complains of. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103 (1917); Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Dallas Tex.Civ.App. 1964, ref. n.r.e.); Medina Electric Cooperative, Inc. v. Ball, 368 S.W.2d 227 (San Antonio Tex.Civ.App., 1963, no writ hist.).

*151 The City’s points of error Numbered 8, 9, 12 and 18 all involve the same legal proposition. We will discuss them together.

In each of those points the City complains of a different ruling made by the trial judge pertaining to the exclusion of evidence.

In each instance the ruling complained of was made while the attorney for the City was examining a witness. He would ask the witness a question and before it was answered the attorney for the condem-nee would object to the question.

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Bluebook (online)
456 S.W.2d 148, 1970 Tex. App. LEXIS 2534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-wichita-falls-v-jones-texapp-1970.