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360 S.W.2d 516

State v. Biggers

Texas Supreme Court

Decided October 3, 1962

Texas Supreme Court · decided 1962-10-03

Key passage — most relied on by later courts

“[W]e are not to be understood as holding that the trial court erred in refusing to permit respondents to prove by the witness, or independently, that the witness was employed by the State Highway Department to make an appraisal of the property, that his appraisal was made for the State Highway Department, or that he was paid by the State Highway Department for making the appraisal. That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Cowley to testify respondents make him their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility is attacked. [Cases cited.] And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence. [My italics.]”

quoted by 5 later decisions, including Arkansas State Highway Commission v. Phillips, State Highway Commission v. Earl

““We also approve the holding (of the Court of Civil Appeals) that refusal to permit respondents to have the testimony of the witness included in a bill of exceptions for the purpose of showing the harmful and prejudicial effect of the first ruling was such a denial of the substantial rights of the respondents as to authorize reversal of the trial court’s judgment.” Citing authorities.”

quoted by 2 later decisions, including Houston Lighting & Power Co. v. Boyles, Smith v. State

Relies on Texas & Pacific Railway Company v. Van Zandt · Texas Employers' Insurance v. McCaslin · Tweed v. Western Union Telegraph Company

Good law ✅— No negative treatment on recordhow we know

Decided 1962-10-03

How this case has been cited

Cited by 41 later decisions — most recently February 2017 · most notably Town of Thomaston v. Ives (1968), Granger v. Wisner (1982)

41 state decisions — followed in 15 states

200196219701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

PER CURIAM.

¶1 The opinion of the Court of Civil Appeals is reported in 358 S.W.2d 188. The application for writ of error is Refused, No Reversible Error. Rule 483, Texas Rules of Civil Procedure.

¶2 We approve the holding of the Court of Civil Appeals that the trial court erred in refusing to permit respondents, who tendered payment of a reasonable fee, to interrogate the witness Cowley with respect to his opinion, if any, of the value of the land taken in the eminent domain proceeding and the diminished value, if any, of the remainder of respondents’ land. Summers v. State, 5 Tex.App. 365, 32 Am.Rep. 573; City of Houston v. Autrey, Tex.Civ.App., 351 S.W.2d 948, writ refused, n. r. e. We also approve the holding that refusal to permit respondents to have the testimony of the witness included in a bill of exceptions for the purpose of showing the harmful and prejudicial effect of the first ruling was such a denial of the substantial rights of the respondents as to authorize reversal of the trial court’s judgment. Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921; Texas & P. Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530-531.

¶3 By refusing the application for writ of error we are not to be understood as holding that the trial court erred in refusing to permit respondents to prove by the witness, or independently, that the witness was employed by the State Highway Department to make an appraisal of the property, that his appraisal was made for the State Highway Department, or that he was paid by the State Highway Department for making the appraisal. That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Cowley to testify respondents make him *518 their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility is attacked. Western Union Telegraph Co. v. Tweed, Tex.Civ.App., 138 S.W. 1155, 1157, affirmed, 107 Tex. 247, 166 S.W. 696; International & G. N. R. Co. v. Lane, Tex.Civ.App., 127 S.W. 1066, 1067, no writ history; 45 Tex.Jur. 40-43, Witnesses, §§ 202, 203. And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence.

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