Oakley v. State

346 S.W.2d 943, 1961 Tex. App. LEXIS 2355
CourtCourt of Appeals of Texas
DecidedMay 17, 1961
DocketNo. 10844
StatusPublished
Cited by5 cases

This text of 346 S.W.2d 943 (Oakley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oakley v. State, 346 S.W.2d 943, 1961 Tex. App. LEXIS 2355 (Tex. Ct. App. 1961).

Opinion

GRAY, Justice.

This is a condemnation proceeding. It was brought by the State of Texas against appellants, Ralph Oakley, Hilldale Development Company, Mutual Savings Institution and the Austin National Bank to condemn, for highway purposes, 66.1 acres of land out of a tract of 100 acres owned by appellants.

The 66.1 acres takes the interior portion of the 100 acre tract and leaves remaining four irregular shaped tracts entirely separated from each other. These separate tracts are: one containing 24.28 acres, one containing 3.02 acres, one containing 4.07 acres, and one containing 2.66 acres. Our statement of the acreage in the remaining tracts is approximate only. Appellee says that appellants owned 100.49 acres of land. This statement would cause a slight difference in the stated acreage in the remaining tracts however we consider that unimportant here.

The commissioners awarded appellants $67,000. Appellants appealed from this award and at the trial the jury found that the market value of the 66.1 acres of land taken was $62,500 and that the market value of the remaining portions of the land was not decreased by the taking. The issues inquiring as to the market value of the remaining portions of the land before and after the taking were conditionally submitted, the jury being instructed to answer them only if they answered the preceding issue “Yes.” The preceding issue was answered “No” and the issues were not answered.

The judgment rendered awarded appellants a recovery of $62,500.

It is our opinion that appellants’ second point must be sustained and for that reason it will be first considered. This point is to the effect that the trial court erred in permitting appellee’s witness Frederick to testify from hearsay to the sale price of various tracts of land as a basis for his expressed opinion of the market value of the 66.1 acre tract as well as the other tracts involved.

The testimony of this witness covers 135 pages, more than one-third of the statement of facts. He testified to over twenty land sales and stated the sales price of each. On voir dire he said he did not participate in the sales, that he did not make the sales, that he was neither buying nor selling and said that he confirmed the sales with one of the principals involved. The trial court allowed appellants a full bill to this testimony, their objection being that it was hearsay.

Appellee does not say that the testimony was not hearsay but says that market value of land is a matter of opinion, that the sales testified to were sales of properties comparable to the property in question and afforded a basis for an opinion of the market value of the subject property.

In applying appellants’ objection to the facts here the following explanation is proper. The witness was offered and testified as an expert and as qualified to express his opinion as to land values and in particular the market value of the tracts of land here involved. It may be said that he was qualified to express his opinion that the lands involved in the several sales were comparable to appellants’ land. Those matters however are beside the point here. He testified from hearsay the prices the lands sold for. He testified that the value of the 66.1 acres of land taken was $49,401, that the value of the 3.02 acre tract was lessened by the taking and that the value of the other three tracts was increased by the taking.

[945]*945Frederick’s testimony as to the market value of the 66.1 acres of land taken was lower than that of appellee’s other witnesses and also of appellants’ witnesses. It cannot be denied that he was an important witness for appellee nor that his testimony as to the price of comparable sales of land bore directly on the disputed and controverted issues in this case — the market value of the land in question. If the complained of evidence was not admissible then it must be said that appellants were prejudiced by its admission.

We are not here confronted with the question of cross-examination of the witness to test the weight of his testimony or to discredit it. 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.

In 17 Tex.Jur. Sec. 210 at p. 520, it is said:

“Hearsay evidence is incompetent to establish any fact which is in its nature susceptible of being proved by witnesses who speak from their own knowledge. The fact that it supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion; its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that it is inadmissible. Not only is it not the best evidence; it is not even secondary evidence; it is no evidence.”

And see: Lumbermen’s Reciprocal Ass’n v. Hull, Tex.Civ.App., 23 S.W.2d 842, 846. Er.Dism.

In City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816, the court said:

“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.”

The announcement of our Supreme Court supra cannot be interpreted as condoning or authorizing the admission of hearsay testimony when offered on direct examination as original evidence.

In its brief appellee says:

“Appellants’ witness, Crow, testified to certain sales that he had been interested in, as an agent for the purchaser, which were “blocked up” for the Capital Plaza Shopping Center on the extreme northerly limits of Austin (the subject property being on the extreme southerly limits of Austin), and used these sales as 'comparable sales’ with he said justified, in part, his opinion of value of the subject property.
“Appellee’s witness Frederick, a real estate broker and professional appraiser, testified on direct examination as to certain sales of properties in the area of subject property which he considered comparable to the extent that they aided him in arriving at an opinion of value. These sales were tendered for the limited purpose of showing a part of the basis upon which the witness arrived at his opinion of value and also as rebuttal to the similar type of testimony of witness, Crow.”

We quote from the testimony of the witness Crow:

“Q. Capital Plaza; now, where is it? A. That is in the northeast part of the city on the Interregional Highway.
[946]*946“Q. How many acres are involved there ? A. There are 48 acres.
“Q. Are you active in that? I mean, is that hearsay with you, or were you active? A. I assembled the land and sold it to outside investors, and I am the local leasing agent in charge of it at this time.”

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Bluebook (online)
346 S.W.2d 943, 1961 Tex. App. LEXIS 2355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oakley-v-state-texapp-1961.