Dyer v. State

• Decision Date: 17 February 1965
• Docket Number: No. 5677,5677
• Citation: 388 S.W.2d 226
• Parties: F. I. DYER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 226

388 S.W.2d 226

F. I. DYER, Appellant, v. The STATE of Texas, Appellee.

No. 5677.

Court of Civil Appeals of Texas, El Paso.

Feb. 17, 1965.

Finley & Scogin, Kermit, for appellant.

Waggoner Carr, Atty. Gen., Charles Lind, Leslie King, T. B. Wright, Ass's Attys. Gen., Austin, Ed Keys, Monahans, for appellee.

CLAYTON, Justice.

This is a condemnation case filed in connection with the construction of a road in Ward County, Texas for which the county is acquiring right of way and 50% of the expense of which acquisition is to be reimbursed by the State of Texas. Plaintiff's (appellee's) Statement was filed in the County Court of Ward County, and thereafter Special Commissioners were appointed who assessed the damages to the owner-appellant from the taking of the right of way easement at $4,372.50. Date of taking was fixed at January 16, 1961. The State filed its Objections to said award of damages and the matter was tried before a jury. In answer to special issues the jury found that the market value of the land taken was $7,500.00 and that the value of the owner's remaining land remained the same after the taking. Judgment was rendered on this verdict and the landowner appeals.

Appellant presents twenty-seven points of error arranged in various groups, which grouping will be followed, in general, by this court. The first nine points relate to the testimony of one Lomax, a witness for the State, while Points Ten through Twelve level similar complaints against the testimony of one Rash (Raish?), another State's witness. The complaints include alleged error in allowing the witnesses to testify on direct examination to the mental processes by which each witness arrived at his opinion or conclusion as to the value of property, with no limitation of purpose for which such testimony was offered; that such testimony involved the examination of deed records and revenue stamps and statements of third persons, all of which was hearsay, and also involved remote sales of improved property as compared to the unimproved property in this cause, all without limitation as to purpose.

A review of the record fails to reveal that any objection was made to the admission of the indicated testimony unless limited to the purpose for which it was admitted. The objections to the testimony seem to be confined to the fact that it involved hearsay or as to remoteness of comparable sales, together with the complaint that the witnesses were allowed on direct examination to reveal the details or mental processes by which each witness arrived at his conclusion as to the value of the land at issue. This last objection seems to be based upon certain language in the Supreme Court decision in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816: '* * * 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.' This language in the Cannizzo case is, however, modified in the later Supreme Court decision in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, where, at page 914, it is stated:

'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 testified, 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 same holding is found in a still later Supreme Court case: State v. Baker Bros. Nursery, Tex., 366 S.W.2d 212, where such testimony was offered for the 'limited purpose of showing what the appraiser considered in arriving at his opinion of the value' and not as direct original evidence of the facts stated therein, and the court admitted such testimony for this limited purpose. See also the 1964 Civil Appeals case of State v. Rumery, 381 S.W.2d 87 (ref., n. r. e.), in which the court states, at pages 89 and 90:

'In the search for market value the information an appraiser might gain from sales here shown is worthy of note, though the tracts are dissimilar in very important respects. There are safeguards against these sales being accorded weight by the jury other than as a factor considered by the appraiser in arriving at his value conclusion. The court's instruction limiting the purpose for which the evidence is admitted and cross examination that emphasizes the negative aspects of comparability are the protective shields of the party resisting the impact of the appraisers' testimony.' (Citing cases).

While we feel that on the basis of the above authorities the complained-of testimony of the two witnesses, Lomax and Rash (or Raish), was probably not admissible without a limiting instruction by the court, if such limiting instruction had been requested, we fail to find in the record any request that the testimony be so limited to the purpose for which such testimony was admitted. See Fisher Construction Company v. Riggs, 320 S.W.2d 200, 209 (Civ.App., 1959, rev. other grounds, 160 Tex. 23, 325 S.W.2d 126); Travelers Insurance Company v. Barrett, 366 S.W.2d 692, 695 (Civ.App., 1963, n.w.h.), in the latter of which it is held: 'Had there been a request on the part of the defendant to limit the purpose for which the testimony might be considered it unquestionably would have been so limited by the trial court, but no such request was made', citing the Riggs case and 17 Tex.Jur. 361, Sec. 122. In the appellant's amended motion for new trial, containing 37 assignments of error, only two assignments relate to the failure of the trial court to limit the testimony. These assignments are in identical language, one directed to Lomax' testimony and the other to Rash or Raish's testimony, and read as follows: 'The error of the Court over objection of Defendant in permitting Plaintiff's witness, _____, on direct examination to go into hearsay sales with no limitation thereon but for the reason of prejudicing the Jury with certain sales picked from the records by Plaintiff's expert witness, _____, and disregarding other.' We do not feel that these assignments properly preserved the alleged error, nor do we feel that the error (if such it was) amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. Rule 434, Texas Rules...