Texas Power & Light Company v. Adams, 207

• Decision Date: 16 June 1966
• Docket Number: No. 207,207
• Citation: 404 S.W.2d 930
• Parties: TEXAS POWER & LIGHT COMPANY, Appellant, v. Mack ADAMS et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 930

404 S.W.2d 930

TEXAS POWER & LIGHT COMPANY, Appellant, v. Mack ADAMS et al., Appellees.

No. 207.

Court of Civil Appeals of Texas Tyler.

June 16, 1966.

Damon D. Douglas, Athens, John L. Estes, Burford, Ryburn & Ford, Dallas, for appellant.

Robert Fields, Fields, Fields & Hardee, Athens, for appellees.

DUNAGAN, Chief Justice.

This is a condemnation case through which Texas Power & Light Company seeks to acquire an easement from the defendants for the construction of an electric transmission line. The defendants' tract of land consists of 1359 acres and the easement traverses across the property 170 feet in width, containing 38.445 acres.

The parties stipulated that all of the jurisdictional requirements had been satisfied and trial was to the jury on the sole question of land values. The jury found the 38.445 acres within the easement sustained a reduction in value of $5,958.97 ($7,304.55 being the value before the easement was imposed and $1,345.58 being the value after the easement was imposed on a 38.445 acres). The jury also found the 1321.25 acres remaining to have sustained a reduction in value in the amount of $26,420.00 ($250,990.00 being the value of the remainder before and $224,570.00 being the value of the remainder after the easement was imposed).

The trial court accordingly rendered judgment on the jury verdict from which the plaintiff prosecutes this appeal. The parties will be referred to in this opinion as they were denominated in the trial court.

The plaintiffs presents 14 Points of Error arranged in various groups, which grouping will be followed, in general, by this court. The first four Points of Error relate to the testimony of Mack Adams, T. N. Winn and Joe Browning, witnesses for the defendants, which read as follows:

'The trial court erred in admitting into evidence the consideration brought by the sale of Loosier to Syler.

'The trial court erred in admitting into evidence the consideration brought by the sale of Grimes to Holt.

'The trial court erred in admitting into evidence the consideration brought by the sale of Compton to Tyner.

'The trial court erred in failing to strike the evidence of the consideration brought by 'a small tract across the road for $400."

Under these points, the plaintiff in its brief makes the following complaints of the court action in admitting certain testimony of the three witnesses named above.

'1. Mack Adams, one of the defendants, testified to a sale of 'the small tract just across the road from this subject tract in question that sold for $400.00 an acre.' No other data was elicited concerning this sale such as the grantor, grantee, date of sale, location, size, etc.; in short, no attempt was made to show its comparability to the subject property and thus lay a predicate for its admissibility.' To this testimony, the plaintiff made the following objection:

'If Your Honor please, we move to strike the testimony of the witness as to what another piece of land sold for because it has not been shown to be comparable to the subject property. And furthermore for the reason that it's not responsive to any question asked to the witness.'

Which objection the court overruled.

'2. Mack Adams was also permitted to testify about the Loosier to Syler sale and the consideration it brought of $210 per acre. On voir dire examination of the witness, prior to the admission of the sale price, the witness admitted he was not a party to the sale and his only knowledge was obtained from the deed records and a conversation with the buyer.'

To which testimony the plaintiff made the following objection:

'If Your Honor please, we object to the question as to the consideration of this sale for the reason that the witness is not shown to have personal knowledge and it would, therefore, be hearsay as to this Plaintiff and would deprive the Plaintiff of his right of cross examination. And we further object to the admission of the consideration of this sale for the reason that the witness has not shown to be in the real estate business as a business or profession.'

This objection was overruled by the court.

'T. N. Winn, another witness called by the Defendants, was also permitted to testify as to the consideration of this sale although he also stated on voir dire examination that he was not a party to the sale and his only knowledge of the consideration was obtained from the deed records and a conversation with the buyer. This testimony was offered and received into evidence for the jury to consider as direct evidence and without limitation, over the objection that each witness acquired his information by hearsay and therefore the Plaintiff was denied its right of cross examination.'

The record reflects that the plaintiff made the following objection to such complained of testimony:

'If Your Honor please, the objection to the question inquiring into a consideration that the sale of Loosier to Syler brought for the reason that the witness's sole knowledge is hearsay and would deprive this Plaintiff of the right of cross examination, and further for the reason that it is not shown to be comparable as a matter of law.'

The objection was overruled by the court.

'3. Joe Browning, another of Defendants' witnesses, was permitted to testify to the consideration brought by another sale: Grimes to Holt for $240.00 per acre. Again, the witness testified on voir dire examination that he had not been a party to this sale and had no personal knowledge other than that which was obtained from his conversations with the seller. The same objection as before was made and the court admitted the hearsay evidence from this witness for all purposes, without any limitation.'

The record shows the following objection by plaintiff to this testimony:

'If Your Honor please, we object to the testimony by this witness of the consideration brought by that sale for the reason that it is based on hearsay and would deprive the Plaintiff of his right of cross examination; in other words, if Your Honor please, the sole knowledge of this witness is hearsay from what he has determined from this conversation with another purpose.

'MR. FIELDS: Your Honor, we withdraw the question at this time.'

'4. T. N. Winn was also allowed to testify to another sale, Compton to Tyner which brought $306.00 per acre. As before, Mr. Winn had no personal knowledge of the consideration which this sale brought other then that which he obtained by hearsay--a conversation with the purchaser and from the deed records. Another objection was made to the testimony as to the consideration of this sale because it was hearsay, same being overruled and the evidence being admitted for all purposes for the jury to consider as direct evidence that the sale occurred at that price and as direct evidence on the value of the defendants property, all without any limitation.'

The following objection was lodged by the plaintiff to the complained of testimony:

'And, if Your Honor please, we object to the admission of the sales price of the Compton to Tyner sale for the reason that the witness's knowledge is solely based on hearsay and would deprive of course the Plaintiff of his right of cross examination. And further, for the reason that it's not shown to be comparable in location, size; it is located some distance from Mr. Adams' tract of land, fifteen miles, I believe, according to this witness's testimony, and we further object then for the reason that it's not comparable as a matter of law.'

The objection was overruled by the court.

To support its contentions, the plaintiff relies principally on State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207, 1962, and State v. Baker Bros. Nursery, 366 S.W.2d 212 (S.Ct.) 1963, wherein the court restated and reiterated its holding in the Oakley case.

To ascertain the primary basis for plaintiff's contention, we quote from its brief the following:

'The trial court in the Oakley case had instructed the jury and limited the purpose which the jury could consider such evidence: not as evidence of what the properties sold for or the value of the subject property, but only as being information gathered by the witness in forming his opinion of the value of the subject property.

'Here, nowhere did the Defendants qualify their tender of evidence of the sale price of the other tracts and the trial court placed no limitation upon the reception of this evidence, but admitted it to be considered by the jury as direct, primary evidence of the price each brought and of the value of the subject property.'

In our opinion, the decision of the question here presented is governed by the case of Dyer v. State of Texas, 388 S.W.2d 226 (Tex.Civ.App.) 1965, n.w.h. As we deem this case to be controlling of the question before us, we therefore quote therefrom at length. In the Dyer case the complaint was made against the testimony by two of the state's witnesses, alleging error in allowing the witnesses to testify on direct examination to the mental processes by which each witness arrived at his opinion or conclusion of the value of the property, when no limitation or 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. The court in passing upon this complaint said:

'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...