Hanks v. Gulf, Colorado & Santa Fe Railway Company

320 S.W.2d 333, 159 Tex. 311, 2 Tex. Sup. Ct. J. 139, 1959 Tex. LEXIS 548
CourtTexas Supreme Court
DecidedJanuary 14, 1959
DocketA-6688
StatusPublished
Cited by44 cases

This text of 320 S.W.2d 333 (Hanks v. Gulf, Colorado & Santa Fe Railway Company) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanks v. Gulf, Colorado & Santa Fe Railway Company, 320 S.W.2d 333, 159 Tex. 311, 2 Tex. Sup. Ct. J. 139, 1959 Tex. LEXIS 548 (Tex. 1959).

Opinions

Mr. Justice Smith

delivered the opinion of the Court.

This is a condemnation suit brought by the respondent under our laws of eminent domain against the petitioners for a right of way out of and over and across a 61.22-acre tract of land adjoining the city limits of the City of Denton. We have but one question to decide, which is: Was certain testimony hereinafter more specifically referred to, offered by the respondent and excluded by the trial court, admissible, and if so, did the exclusion thereof constitute such a denial of the rights of respondent as was reasonably calculated to cause and probably did cause the rendition of an improper judgment? We have concluded that such proffered testimony was inadmissible, therefore, the exclusion thereof could not be prejudicial.

In the trial court the parties entered into certain stipulations thereby reducing the controversy to only the question of the market value of the land to be taken and the market value of the remaining land. Proper issues were submittd to a jury for determination. The jury found that the value of the tract of 3.22 acres taken on December 23, 1954, was the sum of $2437.00; that the value of the remaining tract of 58 acres immediately before the taking was $43,500.00; and the value of the remaining land immediately after the taking was $29,000.00. Based upon such findings, the trial court rendered judgment for $16,-937.00, together with interest at the rate of 6 per cent on the sum of $6,437.00, being the portion of the judgment not deposited in the registry of the court on December 23, 1954. On Appeal perfected by the respondent, the Court of Civil Appeals reversed and remanded the case for a new trial. 308 S.W. 2d 165. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

In view of respondents’ insistence both by cross point and argument that this Court is without jurisdiction and that petitioners’ application should be dismissed for want of jurisdiction, we deem it necessary to dispose of the question. Respondent advances the theory that since the excluded evidence hereinafter discussed was offered by the respondent and not by the petitioners, and since the trial court’s rulings did not in any [313]*313particular prevent the petitioners from fully developing their case, and since the excluded evidence was only defensive in nature, such evidence did not control and the case did not “turn” on the evidence in question. The respondent invokes the well settled rule that where a complaint is made as to the admission or exclusion of evidence, it will not be said to concern a matter of substantive law unless the evidence “controls” the case, or the case “turns” on the evidence in question. The contention is made that it is only in situations where, because of the ruling of the trial court, the party is prevented from making out a case that the question concerning the admissibility of evidence becomes a matter of substantive law, citing the case of Allen v. Pollard, 109 Texas 536, 212 S.W. 468, in support of such contention.

We do not agree with the position thus taken by the respondent. It is true that respondent, who was the appellant in the Court of Civil Appeals, presented only three points of error. Each of these points complained that the trial court erred in refusing to permit appellant-respondent to introduce certain testimony. The Court of Civil Appeals sustained such contention and reversed and remanded the cause for a new trial. Unquestionably, the court made the evidence controlling of the case, and the judgment of the court “turned” on the evidence in question. It reversed and remanded the cause for a new trial. Thus, that court by its action made the evidence controlling of the case, and the judgment of that court “turned” on the evidence in question. It is well settled by the decisions of this Court that if the evidence necessarily controls the case, or if the case turns on the evidence in question, this Court has jurisdiction. See Merchants Cotton Oil Company, Inc. v. Acme Gin Company, 121 Texas 91, 42 S.W. 2d 777; Smith v. Butcher, 110 Texas 617, 223 S.W. 166; Kansas City, M. & O. Railway Company v. Torres, Texas Com. App., 57 S.W. 2d 1099. In the Acme Gin Company case, supra, the court, after stating that the only question presented by the application for writ of error was one of admissibility of evidence, disposed of the jurisdictional question by holding that “* * * Since the evidence excluded does not necessarily control the case * * *, we are compelled to dismiss the application for want of jurisdiction. * * * ” In the instant case, we have held that the evidence is controlling and that the judgment of the Court of Civil Appeals turned on the evidence in question. In all of these cases, including the instant case, this Court had and has jurisdiction to determine the question of whether or not the excluded evidence was controlling, or whether the case “turned” on the evidence. We hold that this Court has [314]*314jurisdiction to consider the questions presented in the petition for writ of error.

Turning now to the merits, we have carefully considered a 53-page bill of exception made up largely of the testimony of Mr. Hanks taken out of the presence of the jury and statements of the attorneys as well as comments and rulings of the trial judge. The excluded testimony was offered by the respondent in an effort to refute the testimony given by Mr. Hanks as to the value of the remaining tract of land before and after the taking.

Mr. Hanks testified before the jury that in' his opinion the fair cash market value of the land on December 23, 1954, in Denton County, Texas, immediately before the railroad went over and across his land was the sum of $1000.00 per acre or a total of $58,000.00; that the fair market value of the same land after the taking was the sum of $500.00 per acre or a total of $29,000.00 for the 58 acres. The record reflects that the excluded testimony involves two separate and distinct alleged oral offers to sell the remaining land. One such offer came about when a Mrs. Brown, a real estate agent, telephoned Mr. Hanks and in response to her inquiry, he informed her that if her prospective purchaser would take the entire 58 acres, he would sell for $2000.00 per acre. We have concluded that the trial court did not exclude this testimony. Therefore, it is unnecessary for us to pass upon the question of whether or not the conversation between Mrs. Brown and Mr. Hanks was admissible. It is sufficient to say that the attorneys stated to the court that it was their desire to offer testimony and to cross examine Mr. Hanks relative to whether or not he had ever made a statement that the market value of his remaining land was $1000.00 per acre, or $1250.00, or was in excess of or far in excess of $500.00 per acre, the value given by Mr. Hanks upon the trial.

The bill of exception reflects that the trial court ruled that the attorneys for respondent would be permitted to fully cross-examine Mr. Hanks with reference to his testimony on value. The Court stated “You have the right of full cross-examination with reference to the figures he has said on the land taken and the remainder both prior to and subsequent to the condemnation. * * * So I think that as far as the right of cross examination before the jury with reference to values, of course you would have that right and I will sustain it.” The respondent made no effort to introduce such evidence before the jury through cross-examination of Mr. Hanks or otherwise. The other offer to sell, first for $1000.00, and later for $1250.00 per acre, was in con[315]

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Cite This Page — Counsel Stack

Bluebook (online)
320 S.W.2d 333, 159 Tex. 311, 2 Tex. Sup. Ct. J. 139, 1959 Tex. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanks-v-gulf-colorado-santa-fe-railway-company-tex-1959.