State v. Oakley

STEAKLEY, JUSTICE.

In this condemnation proceeding the jury found the market value of the 66.1 acres of land taken was $62,500.00 and the judgment awarded respondents a recovery in this amount. Respondents appealed and the Court of Civil Appeals reversed and remanded the cause (346 S.W. 2d 943) upon the holding that the trial court erred in permitting an expert witness for the State to testify to the sale prices of several tracts of land, of which he did not have firsthand knowledge, for the purpose of showing part of the basis for his opinion of the market value of the land condemned. The Court of Civil Appeals regarded the testimony as hearsay and therefore inadmissible.

The precise problem arises from the testimony offered by petitioner of the witness, Jim Frederick, a real estate broker and professional appraiser. The witness was offered as an expert and was permitted, over objection of respondents as hearsay, to testify on direct examination concerning several sales of properties which he considered comparable, and as aiding him in reaching his opinion of the value of the tract taken, but the sales prices of which he learned from other sources. The testimony as to the other sales was not offered as proof of the facts of such sales, or of the sales prices, but for the limited purpose of showing a part of the basis for the value opinion of the witness.

We have reviewed the testimony of the witness and note that no objection was made by respondents to his qualifications as an expert “in the real estate appraisal business”. It further appears that the witness was “employed by the State to make appraisals of the Ralph Oakley property” and that he testified in considerable detail concerning the manner and method of his appraisal study, together with the factors considered by him. He testified that his opinion of the value of the 66.1 acres condemned was “$49,401.00, which is an average of $747.36 an acre.” He then explained at considerable length the various factors considered by him in the value conclusion to which he had testified, and stated that “the most comparable sales are those located in the immediate vicinity and that are subject to the same influences, the same traffic, the same population, the same characteristics, nearer to the location of the property you are appraising, are more comparable.” Thereupon the witness was interrogated concerning the various sales which he considered, after which counsel for the State commenced a series of questions as to what the various pieces of property sold for, asking at the outset the sale price of the first piece of property to which the witness had previously testified. At this point counsel for respondents took the witness on voir dire and established that he did not “participate personally in the sale”. Whereupon objection was interposed “to any further testimony as hearsay and going into mental processes”. Counsel for the State then took the witness on direct examination and asked, “Did you confirm this sale with the buyer or the seller?” to which the witness replied, “I confirmed it with one of the principals involved.” Counsel for the State then stated to the court: “Your Honor, we tender this evidence, not to prove the actual sale itself, but as one of the bases from which the witness arrived at his opinion of value.” The court overruled the objection of counsel for respondents, whereupon counsel for respondents asked, “May it clearly be understood that I have a running bill of exceptions on all of these sales that he goes into * * * on the ground that they are hearsay”, in support of which counsel for respondents again took the witness on voir dire to establish that he, the witness, did not “participate in any of these sales” himself. The court then gave counsel for respondents “a full bill on all these sales”. Thereafter the witness proceeded to recite the sales price of the properties which he had investigated and which he considered as comparable to the property involved in the condemnation suit, after which counsel for respondents interrogated him at considerable length on cross-examination.

With respect to the testimony of the witness in the particulars under review, the trial court instructed the jury as follows:

“You are instructed that testimony by witnesses not having first hand knowledge of the matter stated that certain properties had sold for certain prices shall not be considered as evidence that such properties have sold or that such properties have sold for the prices stated, or as evidence of the market value of the property involved, but may only be considered as being information which the witnesses testified they gathered for the purpose of forming an opinion of the market value of the property involved.”

The question before us is narrowed to that of the admissibility of the testimony of the expert witness concerning sales of which he did not have personal knowledge, and which was offered for the limited purpose we have noted, since neither the qualifications of the expert witness nor the comparability of the sales to which he testified are challenged. See in the latter connection Hays v. State, 342 S.W. 2d 167, State v. Morse, 342 S.W. 2d 165, and State v. Sides, 348 S.W. 2d 446 (all, writ refused, n.r.e.) which considered the admissibility of expert testimony as to comparable sales when questioned on the basis that the sales were not sufficiently similar to be comparable but in which the source of information to which the witness testified was not raised.

On the question thus presented there is a division of authority between the courts of other states and between the Courts of Appeals in Federal jurisdictions.

Kentucky, Oregon and New Jersey have adopted the view that the testimony is admissible and that the hearsay exclusion is inapplicable. See Stewart v. Commonwealth, 337 S.W. 2d 880 ; State v. Parker, 357 P. 2d 548; Delaware L. & W. R. Co. v. City of Hoboken, 85 A. 2d 200.

We quote the analysis by the courts in Stewart v. Commonwealth and in Delaware L. & W. R. Co. v. City of Hoboken, supra:

Stewart v. Commonwealth:

“It is quite often true that the most thorough, comprehensive and accurate professional appraisals are based almost entirely on ‘hearsay’ in the legal sense of the word. Persons who appraise or deal in real estate professionally make it their business to keep abreast of current transactions. The value of an appraisal depends very largely on the manner in which it is developed. It is of importance to the court and jury to know how it was made and on what information it was based. If some or all of that information was acquired by hearsay, but through the customary channels of the trade, or by methods recognized as standard in the making of appraisals, we see no useful purpose in a rule of absolute exclusion. Therefore, confining the effect of this opinion to witnesses whose qualifications include experience in appraising or dealing in real estate as a business, we hold that testimony as to the prices paid in comparable sales is not inadmissible merely because it is secondary or hearsay evidence. Since Hr. Hennessy was professionally qualified as an appraiser and real estate broker, the fact that he had verified the prices by personal contact with the purchasers was a sufficient basis to admit his testimony on the comparable sales.”

Hoboken:

“The modern trend in the law of evidence favors both a liberal rule of admissibility and the giving of a broad discretionary control to the trial judge. The present rule in many, perhaps in a majority, of American jurisdictions permits an expert witness as to value to base his opinion on those sources of information to which business men usually resort, and allow the witness to divulge to the court the data on which his opinion is based, even though hearsay testimony is thus presented. 32 C.J.S., Evidence, Sec. 545, p. 289. Our standard of true value is the price a willing purchaser and a willing seller would agree upon. Murphy v. Town of West New York, 132 N.J.L. 111, 39 A. 2d 38 (Sup. Ct. 1944). The expert witness should consider the same elements as would willing and intelligent buyers and sellers; he may rely upon the same sources of information that they would use. As Chief Judge Parker pointed out in U. S. v. 25,406 Acres of Land, 172 F. 2d 990 (4th C.C.A., 1949), since the court adopts the standards of the market place in making valuations, there is no reason why it should close its eyes to how the market place arrives at and applies the standards. And see the opinion of Chief Justice Maltbie in Vigliotti v. Campano, 104 Conn. 464, 133 A. 579 (Conn. 1926). Also City of Baltimore v. Hurlock, 113 Md. 674, 78 A. 558 (Md. 1910), and Davenport v. Haskell, 293 Mass. 454, 200 N.E. 409 (Mass. 1936).”

Massachusetts, Colorado and Missouri hold the view that such testimony is improper as hearsay and is misleading. See National Bank of Commerce v. City of New Bedford, 56 N.E. 288; Hunt v. City of Boston, 25 N.E. 82; City and County of Denver v. Quick, 113 P. 2d 999; State of Missouri v. Dockery, 300 S.W. 2d 444.

The United States Court of Appeals for the First Circuit in United States v. Katz, 213 F. 2d 799, denied the contention of the government that expert witnesses “should have been allowed to testify as to those prices (paid for comparable lands) on direct examination to show the jury the basis upon which their opinion of value rested”, and quoted with approval from the Massachusetts case of National Bank of Commerce v. City of New Bedford, supra, that “An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience. But the fact that an expert may use hearsay as a ground of opinion does not make the hearsay admissible.”

Our research does not disclose any subsequent case in Federal jurisdiction following the view stated by the First Circuit.

The less strict view was expressed by the Court of Appeals for the Fourth Circuit in United States v. 5139.5 Acres of Land, 200 F. 2d 659, 662, as follows:

“If the expert has made careful inquiry into the facts, he should be allowed to give them as the basis of the opinion he has expressed. If he has not made careful inquiry, this will be developed on cross examination and will weaken or destroy the value of the opinion. Ordinarily evidence as to facts of this sort given by an expert as the basis of his opinion as to value comes with a sufficient guaranty of trustworthiness to justify the relaxation of the hearsay and best evidence rules.”

The above holding has been followed by the Fourth Circuit in United States v. Lowrey, 246 F. 2d 472, by the Ninth Circuit in United States v. Johnson, 285 F. 2d 35, by the District of Columbia Circuit in District of Columbia Redevelopment Land Agency v. 61 Parcels of Land, 235 F. 2d 865, and by the Fifth Circuit in International Paper Co. v. United States, 227 F. 2d 201, 209.

The question at hand was considered by the Houston Court of Civil Appeals in cases of City of Houston v. Collins, 310 S.W. 2d 697, and City of Houston v. Huber, 311 S.W. 2d 488, each with no writ history, in which the admissibility of the testimony was upheld when “offered for the limited purpose only of showing the basis for the witness’s conclusions as to the value of appellee’s property,” the Court citing United States v. 5139.5 Acres of Land, supra, and Cole v. City of Dallas, 229 S.W. 2d 192 (writ ref. n.r.e.). While not directly considering the question, the opinion in Cole is subject to the construction that the testimony of an expert witness concerning facts upon which his opinion is founded will not be excluded “merely because it is based upon what is usually regarded as hearsay”. Wichita Falls R. & F. W. R. Co. v. Cooper, 235 S.W. 927 (no writ hist.) is inapplicable because the testimony there held improper was an offer as original evidence of “the statement”, said the court, “of what Mr. Davenport told him or what he had heard was the asking price of the lots, or of the price Mr. Williams was willing to give for three acres of the Cooper land in an exchange of properties”. (Our emphasis.)

The Court of Civil Appeals in the case at bar appears to have misconceived the nature of the problem as indicated by the following statement in the opinion: “The hearsay evidence here was offered and received on direct examination as original evidence of the market value of the land involved which value was the very issue to be determined.” (Our emphasis.) The Court of Civil Appeals also cites the following from the opinion of this Court in City of Austin v. Cannizzo, 153 Texas 324, 267 S.W. 2d 808, 816, and comments that it is not subject to the interpretation of “condoning or authorizing, the admission of hearsay testimony when offered on direct examination as original evidence” :

“A witness may give his opinion of the present market value of the land, taking into consideration its adaptability to subdivision for residential and commercial purposes and the cost of converting it to such uses, but inquiry into the details or mental processes by which the witness arrives at his conclusion is only proper on cross examination for the purpose of testing the credibility of the witness or for laying a predicate for impeachment.”

Cannizzo did not have the problem with which we are here concerned; moreover, as previously recognized and as adverted to immediately above, the testimony of the expert witness in the case at bar, as to the other sales which he considered in reaching his value opinion, was not offered or received by the trial court “as original evidence” of other sales, and the prices for which other properties sold, for the purpose of establishing the market value of the land in question. Inquiry into the details or mental processes on direct examination was denied by this Court in Cannizzo in relation to “opinion testimony as to the front foot value of nonexistent lots in a hypothetical subdivision (which) is too speculative to be admitted as direct evidence of market value”.

In a sense, of course, testimony of an expert witness concerning comparable sales which he has considered in reaching his opinion touching the value of the property under consideration involves an inquiry into the mental processes of the witness; the real question, however, is whether such testimony, which is inadmissible to prove the facts of such sales as evidence of the value of the property condemned, is likewise inadmissible in another capacity, that is, to show a basis of the opinion value stated by the expert witness and in which capacity the testimony is not hearsay in the true sense. The better reasoned view, in our opinion, is that the testimony is proper in such latter capacity, where, as in the case at bar, the testimony is given by a professionally qualified appraiser whose qualifications, and the comparability of the sales to which he testifies, are not challenged. The discretion of the trial judge, particularly in these latter respects, together with the opportunity on cross-examination to bring out facts contradictory to the statements and conclusions of the expert, and the instruction of the court limiting consideration by the jury of the testimony beyond the purposes for which it was admitted, are substantial safeguards against its misuse. Moreover, whatever facilitation of expert testimony in a condemnation proceeding there may be under our holding is available alike to the condemnor and condemnee.

The Court of Civil Appeals also considered other points of respondents “in view of another trial”.

The first point considered was that a subdivision plat of the 100-acre tract out of which the 66.1-acre tract was taken should have been admitted in evidence because, said the court, “we think the plat would assist the jury in evaluating the evidence.” The plat referred to was offered by respondents as their Exhibit No. 2 and, according to the Statement of Facts, was actually received in evidence for the limited purpose of showing the susceptibility of the property to a particular use and for no other purpose. This is recognized by counsel for respondents with the explanation that his point of error in the Court of Civil Appeals was not with reference to the subdivision plat itself but to the refusal of the trial court to admit further testimony that “the property had actually been staked out on the ground.” It appears that the subdivision plat was given final approval by the City of Austin on January 6, 1955, but that financial arrangements had not been completed and the plat had not been recorded. The condemnation proceeding was instituted in November, 1958. Respondents argue that notwithstanding admission in evidence of the subdivision plat the refusal of the trial court to allow the additional proof that “the property had actually been staked out on the ground was calculated to lead the jury to believe that the subdivision was on paper only”. A review of the record convinces us that respondents were given every proper advantage of the existing status of the subdivision and that the exclusion of the evidence that the property had been staked out on the ground was not reversible error.

The Court of Civil Appeals also criticized the manner of special issue submission. The full tract owned by respondents consisted of one hundred acres out of the interior portion of which 66.1 acres were taken. Four irregularly shaped and separated tracts remained. Special Issue No. 2 inquired if the remaining property had decreased in market value as a result of the condemnation, to which the jury answered in the negative. This rendered answers unnecessary to Special Issues 3 and 4 which inquired as to the before and after market value of the remaining property. Respondents objected to this manner of submission and requested the submission of such issues as to each of the remaining tracts considered separately. The Court of Civil Appeals expressed the opinion that Special Issue 2 should not have been submitted and that the before and after value issues should have been separately submitted as to each of the four tracts.

We do not agree. The manner of submission was not duplicitous, as insisted by respondents, nor is the submission requested by respondents called for by the opinion in State v. Carpenter, 126 Texas 604, 89 S.W. 2d 194, as indicated by the Court of Civil Appeals. The ultimate issue as to the remaining property was whether or not its market value was decreased as the result of the taking of the 66.1-acre interior portion; if not, respondents were not damaged in this respect. The nature and location of each of the remaining tracts, and the circumstances surrounding them, was developed in the evidence and from this the jury could properly and fairly conclude whether or not there had been a decrease in the market value of the property remaining. Consideration of the nature of the remaining property was necessarily involved in reaching this conclusion. Fairness and justice to respondents did not require submission of the same body of issues as to each of the four separate tracts which remained. Special Issues 2, 3 and 4 fairly submitted the controlling issue as contemplated by Rule 279, Texas Rules of Civil Procedure.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion, delivered March 28, 1962.