# City of Dallas v. Holcomb

> Court of Appeals of Texas · June 26, 1964 · 381 S.W.2d 347

URL: https://www.frixlaw.com/law-library/cases/9668686

## Case

- **Full name:** CITY OF DALLAS, Appellant, v. Sid HOLCOMB Et Ux., Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** June 26, 1964
- **Citations:** 381 S.W.2d 347; 1964 Tex. App. LEXIS 2728
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Bateman
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668686

## Opinion text

*352 On-Motion for Rehearing
Without retreating in any respect from our holding that the trial court committed error in restricting the cross examination of the witness Compton, we have been persuaded by careful consideration of appellee’s motion for rehearing that this error did not amount “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 in the case,” and that our judgment •of reversal was unjustified in the light of Rule 434, Vernon’s Texas R.C.P.
As said by Mr. Justice Walker speaking for the Supreme Court of Texas in Dennis v. Hulse, Tex.Sup.1962, 362 S.W.2d 308 , 309:
“Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in, the case.” .
In addition to the testimony of Joe Compton, the appellees introduced the testimony of seven disinterested and legally qualified witnesses who testified that in their opinion the total damages ranged from a low of $13,488 to a high of $28,488. The arithmetical mean of those figures is $20,-988, which is only $328 less than the total damages testified to by the witness Joe Compton. As we see it now, the most that appellant’s counsel could have expected to accomplish by completing the cross examination of Compton, and showing that he had previously assessed these damages at only $4,785.42, was to persuade the jury to reject and disregard Compton’s testimony entirely. If that end had been accomplished, there were still seven other disinterested witnesses whose -testimony would have easily justified a verdict of more than the $8,105 total damages found .by the jury. Their testimony would not have been affected by the complete obliteration of Compton’s testimony. That being true, we cannot say that the refusal of the trial court to permit counsel for appellant to discredit, or even to destroy, the testimony of one witness “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” The burden was on appellant to make such a showing in this court. Our further analysis of the entire record of testimony indicates rather clearly to us that appellant has not met this burden.
The appellees’ motion for rehearing is sustained, our former judgment reversing and remanding is set aside, and the judg^ ment of the trial court is affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668686. Public record. Not legal advice.