Cole v. City of Dallas

• Decision Date: 17 March 1950
• Docket Number: No. 14163,14163
• Citation: 229 S.W.2d 192
• Parties: COLE et al. v. CITY OF DALLAS.
• Court: Texas Court of Appeals

Page 192

229 S.W.2d 192

COLE et al. v. CITY OF DALLAS.

No. 14163.

Court of Civil Appeals of Texas, Dallas.

March 17, 1950.

Dissenting Opinion March 20, 1950.

Rehearing Denied April 14, 1950.

Wynne & Wynne, Wills Point, for appellants.

H. P. Kucera, City Attorney, H. Louis Nichols and Jon H. Shurette, Assistants City Attorney, Dallas, for appellee.

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 of 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 founded, 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 partinent 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 same 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 mile 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.App. 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 Inwood 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 4 1/2 cents per square foot; and (3) in August 1946 another tract of unimproved land located between Preston and Hillcrest 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. ...