City of Dallas v. Hallum , 285 S.W.2d 431 ( 1955 )

YOUNG, Justice.

The record plainly reflects reversible error in this: Admission by the court, over appellant’s objection, of facts concerning the closing of a portion of South Lamar Street and loss of flow of traffic, in proof of damages resulting to the remainder of their property (defendants’ witness Knapp attributing the sum of $13,500 to such cause and Cowley, about $12,000); said closing of street occurring more than two years after the 1951 taking and constituting a wholly improper element of recoverable damage. A further résumé of the litigation from its inception is in order (appellant having been required to first proceed with the evidence on account of defendants’ election to contest the City’s right to condemn) . ,

In October 1951 áppellant had initiated this proceeding by filing of statement in writing, with request for appointment of Commissioners, etc.; the involved strip of land being for widening of Wall Street, running along the entire east 178 feet of the Hallum property, 7.28 feet in width at north end and 16.76 feet on the south. In due course, the Commissioners appointed, after public hearing, fixed their award at $3,500 as' market value of the strip taken and all damages to the remainder; the landowners joining issue by filing objections to the award on November 16; Order of Possession following on November 20, with deposit of money (amount of award) in registry of the court on November 27 — such becoming the date for determination of- market values of the subject property. The widening of Wall Street and relocation of same as South Lamar for several blocks was merely incident to elimination of the Santa Fe Grade crossing on old South Lamar, which project was later completed; as evidenced by City Ordinance of March 29, 1954 reading in part: “Whereas,'the City of Dallas'in connection with the removal' of the T & N O Tracks from the Central Expressway has been required to provide an alternate route whereby the T&NO Railway Company could reach its freight yards, and in order to • accomplish that purpose, it is necessary to close the hereinafter described portion of Lamar Street so as to accommodate the tracks of the various railroads; .and, Whereas, the City of Dallas has caused to be constructed underpasses at St. George Street, Harwood Street and Wall Street and is now engaged in constructing an underpass at Ervay Street, so that the streets mentioned above now underpass the tracks of the Santa Fe Railway Company and the T&NO Railway Company; and, Whereas, .it is the opinion of the Council that that portion of Lamar Street hereinafter more fully described by metes and bounds should not be allowed to remain open, by reason of the grade crossing of the railroads, because it would constitute a hazard to life and property and the Wall Street underpass was provided as a means of travel in lieu of the present grade crossing at Lamar Street; and, Whereas, the City Council is further of the opinion that the physical closing of Lamar Street at the points hereinafter indicated will benefit the public at large, to .say nothing of the traffic hazard that will be eliminated thereby;‘Now, Therefore,.* *

, Above - basic facts were in the background of appellant’s second and third points, arguing error of the trial court in admitting, over objection, certain testimony on part of Messrs. Cole, Knapp and Cowley, witnesses for Hallum and wife, in connection with the closing of Lamar Street at .the San.ta Fe tracks and consequent diversion Of traffic,' as an element of damage to the-remainder of 'the Hallum .property “when the closing of Lamar Street was not a part of this condemnation proceeding but a separate and independent act of the City,, which occurred more than two years after the date of taking on November 27, 1951, and said Court has no jurisdiction to award damages for said closing in this condemnation suit or aiiy other suit in this Ccrart.” These witnesses had testified on direct examination of damages to remainder of the property as follows: Cole, $24,000; Knapp, $17,250; and Cowley, $16,250. I quote from their testimony in part on cross-examination: “Q. (By Mr. Shurette) Mr. Cole what are some of the. things you took into consideration in arriving at the value of $30,630 being the value of this property after the taking? A. Well,'before the taking, I feel that it would have been easy to negotiate a long term lease on that property there 'for six hundred a month, and the way we appraise restaurants and cafes, we would figure out the total value, land and improvements, was a rule of' thumb method, a hundred times a monthly rental, which would indicate a total value there of $60,000, and I feel since the loss of parking, and the' reversing of the front door, and the loss of flow of traffic on Lamar, and the fact’that the restrooms are on the street — (Emphasis mine.)

“Mr. Shurette: Go ahead, sir.

“Q. * * * that it would be most difficult to lease the building and equipment for three hundred a month, and assuming that you could do that, that would indicate a total value there básed on ten percent capitalization of approximately $30,000.

“Mr. Shurette: Now, Ydur Honor, we re-urge our. objection because Mr. Cole has testified that he took into Consideration the loss o.f traffic on Lamar Street, which has already been shown to 'the Court had nothing to do with this condemnation suit, and for that reason, his evidence should be excluded from the jury, and for the further reason that he testified something about having to relocate a door, which there wasn’t anything in evidence about. We would like to. re-urge our motion that his evidence be stricken from the jury, and the jury instructed not to consider it for any purpose, because in violation of the court’s orders to the counsel for the defendants, the witness has testified about the loss of traffic from Lamar Street.

“The Court: I overrule this motion. / still have your other motions under advisement.” (Emphasis mine.)

Mr. Knapp, on cross-examination: “Q. All right, sir. Now, Mr. Knapp, you testified in answer to Mr. McKool’s question that the remainder of Mr. and Mrs. Hal-lum’s property was worth $34,000 immediately after it was taken? A. Yes, sir.

“Q. What factors did you take into consideration in arriving at that figure? A. The factors that I considered had to do with, first, the diminution in the utility of the land by virtue of the narrower neck down next to the intersection of Lamar and Wall Street, which was reduced, if I remember correctly, around 16 feet, or approximately 12 per cent of the total width of the lot at that particular point; that it reduced their utility of that particular part because they could not extend any porches or other units on there without danger of encroachment upon the public lands; and on the fact that the traffic artery, the principal traffic artery which has to do with value of both land and improvements was shifted from one side to the other, leaving the floor plan of the cafe itself functionally deficient by virtue of the fact that the kitchens, toilet facilities and storage were on the main traffic artery, whereas the main entrance was then on the second artery, rather than the principal artery. (Emphasis mine.)

“Q. What percentage of this loss of $17,250 do you attribute to the changing of what you say, the flow of the traffic? A. The loss in the land value itself, because of the change of flow of traffic, and the loss due to the improvements being functionally deficient, would be $13,500. (Emphasis mine.)

“Q. You say it would be $13,500. Now, is that attributed as a result, you say, of switching the traffic flow from one street to the other? A. That is, functional in-utility of the facility itself would affect the needs of the restaurant operation by virtue of the fact it was not on the principal thoroughfare.

“Q. What date did you use in arriving at that figure? A. That would be after the date of the taking and with consideration to the fact that the proposed improvement was to be changed.

“Q. Well, how long after the date of the taking? A. Well, it could be immediately after, so long as the purpose for which the taking was established, that the street was to be opened as the principal thoroughfare.

“Mr. Shurette: Now, Your Honor, we would like to renew our objection again to Mr. Knapp’s testimony as we have to the others with reference to any damages that might result as a consequence of changing traffic from Lamar Street to Wall Street, because as we have heretofore pointed out, there is no connection between the change of flow of traffic from Wall Street to — from Lamar Street to Wall Street with this particular condemnation suit, it having grown out of a separate and distinct action from the particular suit, and we would also like to point out that Mr. Knapp has testified that of his total damage of $17,250, that he has arrived at, he used $13,500 — attributed $13,-500 of that to the change of the traffic flow, because he has just testified to such, and we contend the jury should be instructed not to consider any testimony in connection with this change of traffic flow.

“Mr. McKool: If it please the Court, Mr. Knapp didn’t say that to start with. He said he attributed the $13,500 — I am quoting the words I wrote down — ‘because of the functional inutility of the building as it was left’, and he described what was there on Wall Street, where the aircon-ditioning unit and the other things were on Wall Street and the part of the land that was taken. Your Honor, we have a right to have this evidence shown there. He has placed it upon functional inutility. We have a right to show this. It is indisput-ablp m this case that they took so many feet in order to widen Wall Street. No question about that. They were intending to get more traffic in order to widen Wall Street. Otherwise why were they going to widen it?

“Mr. Shurette: Your Honor, I think the record will show that Mr. Knapp’s testimony was that he took into consideration the diminution of the nature of the land and the utility and because the traffic flow was changed.

“The Court: Yes; I recall that.

“Mr. Shurette: And the evidence should be stricken from the jury and we so request.

“The Court: Gentlemen of the Jury, disregard the part about the traffic flow.

“Mr. McKool: Note our exception, Your Honor.

“Mr. Shurette: Your Honor, we would also like to have the court instruct the jury that they would disregard any evidence concerning the $13,500 he testified about as a result of this change because there is no evidence in the record to show that the defendants have acquired any property right in Lamar Street, nor any right to keep Lamar Street open, and if he did acquire such a right, it grew out of an independent action, with which this court has no cognizance.

“The Court: I will deny the request at this time.” (Although the court in such connection instructed the jury to disregard “the part about the traffic flow,” it had theretofore overruled a similar objection and here denies appellant’s request for such a jury instruction.)

Witness Cowley, on cross-examination:

“A. The difference is that no one sees the front door, as they are going by the property, they can’t see the front door or advertising.

“Q. Why can’t they see the front door; has the front door been changed? A. It is opposite to where it was so far as the relationship to the traffic is concerned.

“Q. It is opposite to where it was so far as the relationship to the traffic is concerned? A. That is right.

"Q. And you took that into consideration in arriving at your figure of $16,200 loss, is that right, sir? A. I definitely took into consideration the fact that you couldn’t find the front door by driving by the property.

“Q. Was that the main reason you arrived at that figure of $16,250? A. That is the reason for arriving at about $12,-000 of it.

"Q. That is the reason for arriving at about $12,000 of it? A. That is right. (Emphasis 'mine.) .

“Mr. Shurette: Now, Your Honor, we offer the same objection to Mr. Cowley’s testimony that we have heretofore offered to the other because by his own statements, he has taken into consideration a change of the flowing of traffic in arriving at the figure he is citing here on damages which he claims is a decreased value of the property in question, of the property that was left remaining after the part was taken, and that this occurrence that he is talking about now has occurred some two years or nearly three years after the taking of November 27, 1951. We again urge the court to instruct the jury to not consider that portion of Mr. Cowley’s evidence with reference to the damage sustained as a result of the diversion of the flow of traffic and he has stated that of this $16,250 figure he had in mind, he is attributing at least $12,000 of it to the change in traffic flow.

“Mr. McKool: Your Honor, I think probably that the predicate ought to be laid to ask the witness what caused this, whether it was caused by the condemnation or something .else, if it is caused by the condemnation, certainly that is admissible, that is admissible as the elements of damages.

“Mr. Shurette: Now, Your Honor, that is a question of law, the Court has heretofore ruled on the question and has instructed Mr. McKool with reference to these matters; it is not a question of fact for Mr. Cowley or the jury to determine; it is an obvious attempt to inject into a condemnation suit a claim for special damages, not growing out of the condemnation suit.

“The Court: I will take your motion under advisement.”

Earlier in the trial the court had sustained the motion of City Counsel to exclude the introduction of a moving picture film showing flow of traffic in vicinity of the Hallum property, offered by defendants, talcfen .November 20, 1954; ■ but' further ruling as follows: "The motion of the plaintiff, City of Dallas, to instruct the jury not to consider evidence concerning damages growing out of the closing of any portion of Lamar Street is overruled: however, the court instructs the attorneys for the plaintiff" and the defendant that the attorneys for the property owner may show to the jury the sign there near the intersection óf Wall and Lamar Street, which states in effect, ‘Closed to through traffic; do not enter.’ But the attorney for the property owner or their witnesses cannot elicit any testimony from any witness'concerning the fact that Lamar Street has been closed at any place.” (Emphasis mine.) " ‘

In original opinion, the detail of .testimony (Mrs. Hallum) and defendants’ offer of Exhibit 23 showing a sign on south of the premises reading “Street closed to through traffic,” would lead the reader to conclude that plaintiff’s objection thereto was sustained. But such is not the case. Further resistance by counsel to the exhibit and the court’s final overruling of all objections is now quoted:

“Mr. Shurette: Judge, we1 would like to object to the introduction of that picture, because there is no showing here that the Lamar Street has been closed by the side of the Hallum property; we have contended that all along, and if he wants to show that that has "been closed all along, he can do that, and if it is not, closed' at that point, they would not have a right to claim damages if it were closed in another block in which this property is not situated. And it is oúr position that the admission of that photograph or' any reference to that amounts to giving them the right to prove special damages to which they are not entitled as a result of the closing of Lamar Street at some point distant from the property in. question. It would be very prejudicial to -the plaintiff to permit the introduction of the picture so as to have the jury believe that we have closed the street alongside of the property that is being condemned. There is no showing here that they do not have the same access that they have always had to Lamar Street, and as a matter of fact, the witnesses heretofore have testified that they do still have the same access from Lamár, Wall, and Grand Street that they have had all along. '

“Mr. McKool: I am not trying to show that the street was completely closed.

“The Court: You can show the neighborhood. I will overrule the objection.” In the same connection, the City’s motion (overruled by the trial court) to “instruct the jury not to consider any evidence concerning damages growing out of the closing of Lamar Street”, and naming the witnesses, Mrs. Hallum, Holsomback and Wilson, while. perhaps , too broad relative to the cross-examination of the latter parties, was surely sufficient as regards Mrs. Hallum; and directly refutes the statements several times made in original opinion that testimony about the closing of Lamar Street and diversion of traffic therefrom was admitted without objection on part of Counsel for appellant City.

Here the following observations and conclusions may be stated: (1) That the closing of Lamar Street was first injected into the testimony by defendants on cross-examination of plaintiff’s initial witness : “Mr. Burke, do you know whether or not Lamar Str.eet has been changed at all ?” (2) That the testimony of Holsomback and Wilson and Mrs. Hallum bore only on the physical surroundings of the subject property "on date of trial; the Lamar Street closing and diversion of traffic not coming into the case as an element of damage until developed by appellant" on cross-examination of defendants appraisers, Cole, Knapp, and Cowley. The latter evidence, therefore, admittedly illegal, was not of the nature and purport of evidence earlier “admitted without objection”; the doctrine of waiver, resorted to in original opinion, thereby having no application. (3) The Lamar Street closing was at a point some two blocks distant from the Hallum location. Condemnees were not landowners abutting the street section thus vacated and, therefore, not entitled to claim a legal injury not suffered by the public in general; Lee v. City of Stratford, 125 Tex. 179, 81 S.W.2d 1003; Jacobs v. City of Denison, Tex.Civ.App., 251 S.W.2d 804. (4) And aside from the fact that said Lamar closing and diversion of traffic occurred more than two years after the “taking” of November 1951, damages resulting from an exercise of the police power (Dallas City Ordinance of March 1954) must be excluded from any condemnation award. 16 Tex.Jur., p. 449. This statement hardly requires a further citation of authority.

Referable to points 2 and 3 of appellant, it is stated in the landmark case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, at page 201, rehearing denied 89 S.W. 2d 979: “* * * If the witness answers that there has been a depreciation or an enhancemént in the market value after the taking, in either event it is proper to question him as to the basis of his opinion and the matters he has taken into consideration in arriving at his opinion. If he should testify that among the things he has considered in arriving at his opinion of market value were ‘community’ benefits or injuries, but that there were other things of a legitimate nature which influenced his opinion, this should not invalidate his evidence 'altogether. * *" *” (Emphasis mine.) Surely under this directive of our Supreme Court, the trial judge should have sustained appellant’s objections to that part of the testimony of Knapp, ascribing $13,-500-of the Hallum property damage as due to the closing "of Lamar Street and diversion of traffic; and to Cowley’s testimony attributing $12,000 of damagé to a like source. So, also, of the testimony "of "Cole. Upon objection, a- separation of" the elements of damage should-have been required and that part due to the closing of Lamar Street eliminated; failing which, appellant’s objections thereto were good and should have been sustained. The above language of State v. Carpenter does not militate against the exorcising of improper items of damage on timely motion; at least not under the facts and circumstances of this record (See Footnote).^*

But it may be argued that," curative' qf all error, was the court’s instruction along, with- issue No. 3, i. e., charging the jury to disregard all evidence of community, injury, such as the closing of Lamar Street; they fixing $37,500 as market value of the remaining property after the taking., -The instruction reads: “Excluding increase in value, if any, and decrease in value, if, any, by reason of benefits and injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the remainder of their land, and taking into consideration the use to which the condemned land is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ tract of land immediately after the taking of the land condemned for street purposes.

We cannot presume that the jury in fact disregarded any decrease in value by reason of injuries suffered by defendants in common with the community generally in view of the court’s admission in toto of the testimony of Messrs. Cole, Knapp, and Cowley (over reiterated objections) ; thus impliedly authorizing that fact-finding body to consider the closing of Lamar Street and diversion of traffic as appropriate elements of damage. On the other hand, would not every reasonable presumption be to the contrary? — the incompetent testimony having been paraded before the jury under favorable rulings as to its admissibility. Manifestly, we have here a classic setting for application of Rule 434, T.C.P., of errors committed by the trial court amounting “to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment * * This case should be reversed and remanded for another trial.

As the foregoing, together with written concurrence of Chief Justice Dixon, becomes the prevailing opinion on rehearing, these additional conclusions should be noted: Appellant’s points 1 and 4 relate to matters that will probably not occur on retrial. The present method of disposition of cause also renders unnecessary any discussion of appellees’ cross-point complaining of the trial court’s error in failing to allow interest in the judgment at rate of 6% on the sum of $8,796 from November 27, 1951, date of taking by appellant, instead of from November 23, 1953 (date of jury trial).

Our original opinion of affirmance of June 3, 1955, is accordingly withdrawn, motion for rehearing sustained, and this cause is reversed and remanded to the trial court.

* Had the improper elements of damage been stricken, the balance of competent evidence would have been insufficient to support the jury answer of $8,000 as damage to the remainder of property in suit. Under Knapp’s testimony (excluding the $13,500 attributable to Lamar Street closing), they could have found only $3,750 as defendants’ damage; under Cowley’s testimony, they could have found no more than $4,250. The City witnesses found that the remaining premises had suffered no damage whatever; and under the testimony of Cole, .the legitimate damage, if any, to the remaining property was left largely to conjecture.