Cole v. City of Dallas ( 1950 )


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  • BOND, Chief Justice.

    Appellants’ points of error, grouped, are directed to the action of the trial court in admitting the factual basis of an expert witness to express an opinion on the issue of value of the real estate in controversy. We preface our opinion on elementary general rules, applicably stated in 19 Tex.Jur. 224, secs. 146 and 147 as follows: “Sales of Similar Property — Character of witness’s Knowledge. — It is not necessary, in order to qualify a witness to testify on the issue of value, that the factual basis of his opinion be of such a direct character as would make it competent in itself as primary evidence; on the contrary, experience acquired by him in the ordinary conduct of affairs and information such as is usually relied upon are, as a rule, sufficient. * * * The mere fact that the opinion may be based upon what is usually regarded as hearsay will not warrant its exclusion in all cases. On the contrary, if the statements relied upon are of such a character as to afford a fair basis for knowledge of values, such as accounts of actual sales as published in market reports, etc., the opinion may be received. * * * When a witness on the issue of value relies upon his knowledge of sales of similar articles as the basis for his opinion, he must be prepared, as a usual thing, to show that the property sold was similar in all material particulars to that whose value is to be determined, and that the time of the sales is not too remote from the date as of which the value of the property is to be fixed, and that the place of the sales is the market wherein the value is to be established. * * * ”

    The rule in Texas is set out in sec. 699, McCormick and Ray, Texas Law of Evidence as follows: The inquiry is, “May the value of another piece of property be received to show the value of the property in question? Since the value of the other property may be gathered from the price it brought at a sale, the question usually becomes one of whether the sale of property is admissible to evidence the value of the property in issue. The question arises most frequently in cases of land valuation, especially those involving the condemnation *193of land.- Where the other sales were sufficiently near in time, and the other land was located sufficiently near the land in question-and was sufficiently alike with respect to character and improvements to make it clear that the price paid for such tract has probative value in determining the value of the land in question, the other sales are received by most courts. This appears to be the rule in Texas.”

    By necessity, expert witnesses are permitted to state their opinions as to the value of real estate together with the basic facts upon which such opinions are founded. Value of property is always a matter of opinion, and may be shown by circumstances. Witnesses testifying as to value should be permitted to relate facts upon which such opinion is fotmded, either on direct or cross-examination. There is no particular time in a trial as to when such witness shall relate the facts upon which he bases opinions, just so long as such facts are pertinent to the inquiry, thus giving weight and probative force to the testimony in aid to an untutored jury. In absence of inquiry as to experience and observations of an expert witness, his knowledge of sales by others, and the generally diffused knowledge obtained in hearing of sales transactions, and the like, manifestly, one expert would be as valuable as another, one party’s opinion would be of as much probative value as that of another. The background of the expert’s training, experience, knowledge, and observation, is material — giving weight and credence to his opinion as to the value of the real estate in controversy.

    Indeed, expert testimony is uncertain, at best, as a basis for an estimate by the jury of the value of land. Jurors usually understand that. In Houston Lighting & Power Co. v. Daily, 291 S.W. 317, 321, writ dismissed, the Galveston Court of Civil Appeals had the inquiry as to the admission of testimony of an expert on value of real estate wherein the witness testified as the basis of his opinion that he “had heard of sales and purchases and offers” of such sales. That was a condemnation suit. The court said: “If the knowledge of the character of the land involved, and the uses for which it is adapted, and the prices at which lands of the same, character, in the sarnie community, and adaptable to the same uses were bought and sold, when such transactions occurred, does not qualify a witness to give his opinion as to the value of the land, there is no way by which such value can be shown. Appellant’s objection to the testimony of these witnesses goes to the weight and not to the admissibility of their testimony. * * * ” In Reeves v. City of Dallas, 195 S.W.2d 575, 578, opinion by this Court (assignment of error presented to the Supreme Court, writ refused n. r: e.), there was offered in the trial evidence (over Reeves’ .objection) that he purchased the land condemned for $500 per acre, and subsequently he purchased another tract or parcel of land adjacent to that condemned; also there, was evidence offered' over Reeves’ objection that other real estate located about a ijiüe from the Reeves property was selling shortly before the condemnation at a price of 10 cents per square foot. The opinion relates: “All of the ultimate issues of fact concerning the fixation of the reasonable market value of the real estate, improvements and leasehold involved, are either proved by or attempted to be proved by so-called ‘expert’ or ‘opinion’ testimony. It is well known that such testimony fluctuates greatly according to the interest of the witness in the subject matter of the suit, or according to who calls him as a witness. Such evidence gives the jury wide latitude in determining the value of such testimony, and in drawing their own just conclusion. * * In concluding the point raised, the opinion relates that “The jury being the exclusive judges of the weight and credibility to be given to any and all testimony, we are not authorized to set aside their verdict. Russell Coleman Oil Mill v. San Antonio U. & G. R. Co., Tex. Civ.App., 37 S.W.2d 165; Roberts v. County of Robertson, Tex.Civ.App., 48 S.W.2d 737; R. L. White Co. v. State, Tex.Civ. App., 131 S.W.2d 326. Therefore, the jury having exercised its function and decided the issues, its findings are final. City of Corpus Christi v. McLaughlin, Tex.Civ. App., 147 S.W.2d 576.” The above conclusion finds further support in North East Texas Motor Lines v. Hodges, Tex.Civ. *194App., 141 S.W.2d 386, opinion by our Mr. Justice Young, affirmed Supreme Court, 138 Tex. 280, 158 S.W.2d 487, citing Foster v. Burgin, Tex.Civ.App., 244 S.W. 244; City of Waco v. Roberts, Tex.Civ.App., 12 S.W. 2d 263; Ft. Worth & D. C. Ry. Co. v. Hapgood, Tex.Civ.App., 210 S.W. 969; City of Trinity v. McPhail, Tex.Civ.App., 131 S.W.2d 803, Syl. 4; 19 Tex.Jur., Expert and Opinion -.Evidence, sec. 141, p. 218. And, too, see City of Dallas v. Shackelford, Tex.Civ.App., 200 S.W.2d 869, opinion by Mr. Justice Looney, then a member of this court, on a similar question. The authorities may be greatly multiplied on the issue raised.

    Appellants’ assignment in motion for new trial is to the action of the trial court in admitting in evidence the testimony of the witness E. L. Bale, on behalf of the City of Dallas, relative to the sales price of other and different pieces of property in the years 1946 and 1947 without predicate having been laid for the introduction of said testimony. And this' testimony (coming under condemnation by appellants’ assignment) is that Bale, over appellee’s timely objection, was permitted to relate, as basic elements for his opinion of the value of the two tracts of land at the time of the condemnation by the City in June 1947, that he took into consideration the sales and values of other property in the City similarly situated and comparable in environment to the land condemned, as follows: (1) In February 1946 Cora Cole conveyed to Dunlap and Henry and others 8 acres of land (referring to map) located about 1,500 or 1,600 feet just north of the land in controversy (unimproved, zoned for multiple apartments as the land condemned) for a consideration of $12,000, or $1,400 per acre; (2) on February 5, 1946 Mr. Weichel sold to an apartment development company 13 acres on Lemmon Avenue just west of In-wood Road in the City of Dallas, zoned for apartments as the Cole property, for $2,000 per acre; and about the same time sold 100 acres at the same locality to the same development company for approximately $2,000 per acre, or 4½ cents per square foot; and (3) in August 1946 another tract of unimproved land located between Preston and Hill-crest Roads, north side of Northwest Highway and immediately north of the Drive-in Picture Show, zoned for- multiple family apartments, was sold by the First National Bank to F. L. McNeny for a fraction less than $2,000 per acre. In each of the above instances Mr. Bale was asked (without objection) : “In your opinion as a real estate man, that property is similar and comparable to the property involved in this litigation?” To which the witness answered, “Yes. * * * Q. All right, now in your opinion, Mr. Bale, as a real estate man, do the prices paid for the property you have reference to represent the fair cash market value that property at the time of the sales was bringing?” To which the witness answered, “Yes.” On cross-examination by the defendants’ attorney, witness Bale testified:

    “Q. You just talk from the deed records? A. Not all of it. Part of this, I conferred with the purchasers; I talked to the purchasers.
    “Q. All you know is what the man told you, is that all? A. I know.”
    On redirect examination the witness testified (no objection) :
    “Q. Mr. Bale, when real estate men appraise property, what do they consider in helping them arrive at the market value of the property? A. In raw land, it is generally based on sales in the neighborhood— what sales in the neighborhood are, as to the amount of revenue that that piece of property will produce — in other words, you can build an apartment on a piece of land and estimate what the earnings will be on the building and the land, and—
    “Q. In the practice of appraising property by real estate men, do they take into consideration what other property is selling for ? A. That’s right; they do. * *.
    “Q. Based on those sales and the ones they heard about, they arrive at their opinion of the market value ? A. That’s right, the ones that they know are true.”

    •The record .evidence further discloses that before- offering the above testimony, Mr. Bale testified (without objection) that he had been in the real estate business for 25 years and had specialized in valuations *195from 12 to 15 years; was a member of-Dallas Real Estate Board, had held offices therein as well as being a member of other organizations for real estate men and appraisers ; he was familiar with, had visited, and knew the location of the property in question; had made an appraisal thereof for the purpose of testifying in this cause; was familiar with its market value as of June 1947; had an opinion of its fair market value, which he gave as $4,300 (about $2,200 per acre, — five cents per square foot) for the larger tract and $155 for the smaller tract (about $500 per acre); he was acquainted with the development of unimproved property of the kind desirable for development at the times material here; the property involved was zoned multiple apartment buildings. He testified that he had had occasion to become acquainted with other real estate values in the vicinity.

    Without further ado on the admissibility of the evidence as an element for the witness’ opinion giving probative force to his testimony in estimating the value placed on the land condemned, the record evidence reveals that appellants offered five expert witnesses to sustain their contention of value as being more than was found by the jury; and appellee offered three expert witnesses who testified that the land was worth less. The jury did not exactly agree with either of these experts, but, from their testimony, estimated the value as found.by the verdict. The basic elements for practical purposes were the same; some of appellants’ experts gave evidence of sales of other property comparable to that condemned, as did the witness Bale, — and in some instances the same property. Hence if it was error for the trial court to admit the objectionable testimony of the witness Bale, the admission of similar testimony by appellants rendered such error harmless. “It seems to be well settled that a judgment should not be reversed because of the admission of improper evidenc.e, where other evidence to the same effect was admitted without objection.” Hart v. Harrell, Tex. Civ.App., 17 S.W.2d 1093, at page 1095. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103; St. Louis A. & T. Ry. Co. v Mackie, 71 Tex. 491, 9 S.W. 451, 1 L.R.A. 667, 10 Am.St.Rep. 766; Letcher & Moore v. Morrison, 79 Tex. 240, 14 S.W. 1010; Poindexter v. First State Bank, Tex.Civ.App., 252 S.W. 858; Wolf v. Wolf, Tex.Civ.App., 269 S.W. 488. Furthermore, “ * * * no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted 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, * * Rule 434, Texas Rules of Civil Procedure.

    It is therefore deemed unnecessary to reiterate or to make a further resume of the extended testimony upon this really simple inquiry, since it is thought that appellants’ objections urged to the testimony offered on the inquiry into the market value of the land in controversy went to the weight thereof rather than to its admissibility; and that if it was error, appellants, having offered testimony of similar nature, ipso facto waived the error; and, further, that the error complained of amounts, to no denial of the rights of appellants as is calculated to or' did cause the rendition of an improper verdict; and the judgment should be affirmed.

    While appellants and their attorneys may feel, as they do, that appellants did not receive full value for their estate, yet it cannot be said that the verdict of the jury and the judgment of the trial court haye no support in the evidence.

    Indeed, as could be expected, the evidence of the expert witnesses was widely variant on the value of the land; but, be that as it may, as said by our Supreme Court in- the very recent case of Nass v. Nass, 228 S.W. 2d 130, 132, affirming the judgment of the Galveston Court of Civil Appeals, 224 S.W. 2d 280: “The probative force of testimony is ordinarily a question for the jury to determine. They are the triers of the facts, and are not required to follow the opinions of experts or to be controlled by the action *196of the trial court in admitting the standards of comparison as genuine.” (Citing authorities.)

    The judgment should be affirmed; it-is so ordered.

    YOUNG, J., concurs, written opinion. CRAMER, J., dissents.'

Document Info

Docket Number: 14163

Judges: Bond, Young, Cramer

Filed Date: 3/20/1950

Precedential Status: Precedential

Modified Date: 10/19/2024