State v. Hays

• Decision Date: 13 July 1962
• Docket Number: No. 16091,16091
• Citation: 361 S.W.2d 401
• Court: Texas Court of Appeals
• Parties: STATE of Texas et al., Appellants, v. Edward L. HAYS et ux., Appellees.

Page 401

361 S.W.2d 401

STATE of Texas et al., Appellants, v. Edward L. HAYS et ux., Appellees.

No. 16091.

Court of Civil Appeals of Texas, Dallas.

July 13, 1962.

Rehearing Denied Oct. 19, 1962.

Henry Wade, Dist. Atty., A. D. Jim Bowie, Homer G. Montgomery, Emmett

Colvin, Jr., Don R. Stodghill and Ted Z. Robertson, Asst. Dist. Attys., Dallas, for appellants.

McKool & McKool, Dallas, for appellees.

DIXON, Chief Justice.

This appeal again presents the question of the admissibility of testimony in regard to alleged comparable sales in a condemnation suit.

This is the second appeal in the case. For the opinion in the first appeal see Hyas v. State, Tex.Civ.App., 342 S.W.2d 167. For a related case see State v. Morse, Tex.Civ.App., 342 S.W.2d 165.

Appellee admitted that appellants had complied with all the prerequisites and requirements for condemnation. The only questions remaining were issues of value. Nevertheless the trial extended over a period of ten days. The statement of facts covers 1220 pages.

As usual the expert witnesses differed sharply as to value. Appellees' expert witnesses Ardis Doak and Roy Eastus valued the land and improvements and damages to the remainder at a total of $46,729.40 and $36,235.35, respectively. Another of appellees' witnesses, Jack Reynolds, valued the improvements condemned, not including the land, at $12,737.00. The land consisted of 2.2 acres in three separate parcels in the City of Seagoville, Texas.

Appellants' only expert witness, Joseph R. Smith, valued the land and improvements and damages to the remainder at $12,900.00.

A jury found that the value of the land taken and the damage to the remainder totalled the sum of $23,500, for which amount judgment was rendered in favor of appellees Hays, the property owners.

Appellants' first point on appeal is as follows:

'The trial court abused its discretion and erred, over the strenuous objections of appellants, in submitting into evidence through the opinion witnesses of the appellees alleged comparable sales that involved other than a monetary consideration.'

In their first counterpoint appellees say that we should not consider appellants' point because it is multifarious in that it complains of four separate and distinct rulings of the court pertaining to four separate and distinct grounds involving four separate comparable sales.

We must agree with appellees, that appellants' first point does not comply with Rules 321, 374 and 418, Texas Rules of Civil Procedure; Johnson-Sampson Construction Co., Inc., v. W & W Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926 (Syl. 8); Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426.

However, in their statement and argument under their first point, appellants separately name the four sales and the four rulings of the court to which objection is made. Therefore, we shall proceed to consider each of the four rulings as if each were itself the subject of a point on appeal. Rule 422, T.R.C.P.; Wyche v. Noah, Tex.Civ.App., 288 S.W.2d 866; Paul v. Johnson, Tex.Civ.App., 314 S.W.2d 338.

At the beginning of the trial appellants filed a motion asking the court to instruct counsel for appellees not to make any inquiry or reference in the presence of the jury to any alleged comparable sale which involved other than a monetary consideration. The court overruled appellants' motion.

Appellees' expert witness, Roy Eastus, went into great detail in explaining how he arrived at his opinion of a value of $36,235.35. After naming that figure he testified that his opinion was based in part on sales of other properties which he considered comparable. He testified specifically concerning thirteen of such sales. Four of these alleged comparable sales were challenged by appellants and are the subject of this appeal. These four sales, with grantors and grantees, are as follows:

(1) Rufus E. Parker and H. J. Solomon to American Petrofina Co. of Texas;

(2) A. Rex. Putnam to Bob Hays;

(3) Boy Hays to Humble Oil & Refining Company;

(4) J. D. Balafas to Dewey Thomason.

Appellants objected to sale No. (1) because it involved an easement; to No. (2) because it involved a consideration of $15,000.00 consisting of $5,000.00 cash and a mortgage on a service station which Hays had been required to build; to No. (3) because the sale was one of the three sales of service stations by Hays to Humble Oil & Refining Company in connection with Hays' removal from Seagoville, Texas to Athens, Texas, as Humble Company's agent; and to No. (4) because the contract for $500 cash payment and the execution of a $9,000 mortgage also contained a provision that the proceeds of condemnation should be applied on the $9,000 mortgage.

In support of their contention appellants cite and quote from cases in which it is held that 'swaps', or trades and exchanges of property are not material or relevant in proving market value. Morgan v. State, Tex.Civ.App., 343 S.W.2d 738 (Syl. 4); Cravens v. City of Amarillo, Tex.Civ.App., 309 S.W.2d 903; Fort Worth Improvement District No. 1 v. Weatherred, Tex.Civ.App., 149 S.W. 550; State of Arizona v. McDonald, 88 Ariz. 1, 352 P.2d 343, 349; Redifield v. Iowa State Highway Commission, 252 Iowa 1256, 110 N.W.2d 397; Sanitary District of Chicago v. Boening, 267 Ill. 118, 107 N.E. 810; United States v. Leavell & Ponder, Inc., 5 Cir., 286 F.2d 398; Lewis, 'Eminent Domain' Vol. 2, 2rd Ed. Sec. 662, p. 1138; Nichols, 'Eminent Domain' 3rd Ed. Vol. 5, Sec. 21.31, p. 280; Alfred Jahr, 'Eminent Domain: Valuation & Procedure,' Sec. 139, p. 314. Appellants say that, applying this rule, the court should have sustained their objections to the four sales, and the testimony of Eastus in regard to them should have been stricken.

In Hays v. State, Tex.Civ.App., 342 S.W.2d 167, 170, Justice Thomas, speaking for this Court, gave three conditions under which, in condemnation cases, evidence may be offered of comparable sales. The first of said conditions is in substance as follows: such testimony may be offered on direct examination of expert or lay witnesses as independent substantive evidence of the value of the property to which the comparison is made. That situation is not presented in the case now before us, so we shall make no comment as to whether the evidence in question could properly have been admitted if it were to be tested under the first condition.

It is the second of the conditions stated by Justice Thomas which concerns us here: evidence of alleged comparable sales may be given by expert witnesses on direct examination, not as primary evidence of value, but merely to give an account of the factual basis upon which the expert founds his stated opinion as to the value of the real estate being condemned.

In passing on the admissibility of alleged comparable sales a trial judge must to a certain extent pass on the degree of similarity of said properties and sales. No inflexible rule has been laid down to govern the court's decision. In admitting or rejecting such evidence a judge is allowed considerable discretion. Lewis on 'Eminent Domain' Vol. 2 (2d Ed.) Sec. 443; 23 Tex.Jur.2d 271, 273; 32 C.J.S. Evidence Sec. 593, p. 447.

In exercising this discretion a trial judge is to be allowed a greater latitude in admitting evidence of comparable sales under the second condition than under the first condition named by Justice Thomas in his opinion. City of Houston v. Pillot, Tex.Com.App., 105 S.W.2d 870, 872; Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192, 193; Stewart v. Commonwealth of Kentucky, etc., Ky., 337 S.W.2d 880, 884; United States v. 5139.5 Acres of Land, etc., 4 Cir., 200 F.2d 659, 662.

The reason for this greater latitude is well stated in McCormick & Ray 'Texas Law of Evidence,' Vol. 1, page 610, Sec. 835.

'It is the general rule that an expert witness, having testified to an opinion, is permitted to give in evidence, either in direct or cross-examination, an account of the basis upon which he founds the opinion. If this testimony happens to be competent for that purpose it is admissible as independent evidence upon the issues in the case, but even though not so competent, it is still admissible as giving the basis for the previous opinion testified to and thereby enabling the jury to test the value of the opinion evidence.' (Emphasis ours.)

In the present case the testimony of the witness Eastus in regard to the four disputed sales comes within the second of the conditions named by Justice Thomas. After giving his opinion as to the values of the condemned property, Eastus testified as follows:

'Q Now, Mr. Eastus, do you have any sales, did you check any sales in the area in recent years prior to or since the condemnation within a reasonable distance of the Hays property in order to get and form an opinion as to the value of the Hays property?

'A I have

'Q And were there such sales that have taken place near the Hays property during that period of time?

'A Yes.

'Q Would you give me the name of a grantor and grantee please, sir?' (Emphasis ours).

Eastus then testified to thirteen sales including the four in dispute. He was vigorously cross-examined about these four sales. Some dissimilarities were brought out in the cross-examination of Eastus. As to other dissimilarities he said he did not know.

Most of the dissimilarities on which appellants rely were brought out in the testimony of appellants' expert witness Joseph Smith, offered in rebuttal of the testimony of Eastus. Smith testified that he had investigated the four sales in question. In his opinion they were not comparable sales for reasons heretofore set out. Thus we have Eastus' opinion that the sales were comparable against Smith's opinion that they were not comparable--a fact issue presented by two experts. In the face of this conflicting testimony, the words of our Supreme Court in City of Houston v. Pillot, supra, seem appropriate 'On the whole the objections urged go to the weight, rather than the...