author: STORCKMAN, Judge.

text:
    JACKSON COUNTY, Missouri, Appellant, v. Harvey E. MEYER and Pollyann Meyer, Respondents.
    No. 48780.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      Cornelius Costello, County Counselor, Jackson County, Kansas City, and Walter A. Raymond, Sp. Asst. County Counselor, Jackson County, Kansas City, for appellant Jackson County, Mo.
    Johnson, Lucas, Bush & Vardeman, Hilary A. Bush, Kansas City, and Meyer, Smith & Shute, George W. Meyer, Kansas City, for respondents Harvey E. Meyer and Pol-lyann Meyer.
   STORCKMAN, Judge.

This is a proceeding by Jackson County for the condemnation of land on which to impound a body of water to be known as Lake Jacomo, and in connection therewith to establish public parks and playgrounds. The tract with which we are here concerned was an improved farm of 195 acres owned by the defendants, Harvey E. Meyer and Pollyann Meyer, his wife. The commissioners assessed the defendants’ damages at $75,000 to which report the defendants excepted. Upon a trial of the issue of damages in the circuit court, a jury assessed the defendants’ damages at $122,500 and judgment was rendered accordingly. On this appeal the plaintiff complains of the admission of evidence as to the value of other lands in the vicinity and of the defendants’ argument to the jury; also that the verdict is grossly excessive and the result of prejudice on the part of the jury.

The defendants’ farm was located 7½ miles northeast of Lee’s Summit, 3½ miles from Blue Springs, 1½ miles south of Highway 40, and 13 miles from Kansas City. It fronted on a concrete highway known as Woods Chapel Road; Jasper Bell Road, of black-top construction, ran along another side of the farm. The property was on a mail and school bus route and had available and made use of these utilities — city water, electricity, gas, and telephone. The defendants acquired the property about 1942 and lived there continuously until it was taken by condemnation in 1955. Mr. Meyer farmed the land until about 1950. He cultivated about 100 acres but more tillable land was available. About 60 acres was bottom land in an alluvial valley and the soil was about 20 feet deep. After 1950 the principal use of the farm was for pasture. The main house in which the Meyers lived was a mansion-type structure in good repair. It was a three-story, ten-room, entirely modern frame house with a full basement and a two-car heated garage. The grounds immediately around the home, consisting of 2.73 acres, were landscaped. The roof of the two-story front porch was supported by Corinthian columns. Other principal improvements were a large barn, a dairy barn, a tenant house, and a chicken house.

The evidence of the defendants was that the land exclusive of improvements was worth $500 per acre for a total land value of $97,500, and that the improvements, including the mansion house, were worth a maximum of $71,875. On the other hand, the County’s witnesses put a maximum value of $33,125 on the land and about $41,-875 on the improvements.

Among other assignments of error, the plaintiff charges that the trial court erred in admitting in evidence over its objection the price it paid “for other lands needed for this lake to avoid the risks, expenses and inconveniences of condemnation litigation.” The owners deny that the admission of the evidence was error, but further contend that if it were the plaintiff waived the, error expressly and also by introducing evidence of the amount paid for other tracts which it had purchased by negotiation with the owners.

As a general rule the value of real estate at a particular time may be proved by evidence of voluntary sales of similar property made in the same general locality and not too remote in point of time. State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, 312 [9]; City of St. Louis v. Kisling, Mo., 318 S.W. 2d 221, 226 [9]; In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 473 [22]; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 856 [5]; 32 C.J.S. Evidence § 593, p. 445; 18 Am.Jur., Eminent Domain, § 351, p. 994.

The amount paid by one authorized to condemn the land, however, is generally not admissible as evidence of value because a sale made under threat of condemnation is not likely to be a voluntary one and the sale price may be affected by a desire of one or both of the parties to avoid litigation. Kansas City v. Thomson, Mo., 208 S.W.2d 216, 219 [2] ; City of St. Louis v. Rossi, Mo., 55 S.W.2d 946, 948 [4]; Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 895 [12], 84 A.L.R. 1477; Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167, 169 [1]; Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, 864 [2].

The plaintiff’s assertion that these evi-dentiary rules were violated is not the decisive question on the record before us. In order to demonstrate the context of the controverted proceedings, it will be necessary to set out an inordinate amount of the record. Italics will be supplied to emphasize the statements particularly relied on by the parties. The occurrences in connection with this point commenced during the defendants’ case which was presented prior to the plaintiff’s evidence. Albert F. Florence testified that prior to June 1955 he lived on his 160-acre farm four miles south of the Meyer farm which he sold in 1955; he described the improvements on his farm and stated that his was “a little house” compared to the Meyer home. When the witness was asked by defendants’ counsel how much he sold his farm for, the following occurred within the presence but without the hearing of the jury:

“MR. TITUS : [counsel for the plaintiff] I want to obj ect to showing what he sold his farm for. It would be incompetent, irrelevant, and immaterial, no bearing on the issues in this case, no proper foundation having been laid to show it was comparable to this property, and it has not been shown that the land is comparable as there is reference made to the house only.

“MR. WILLIAMS: [also counsel for the plaintiff] As to what he sold his property for would be incompetent and irrelevant because it was bought by the County in an effort to avoid litigation.

“THE COURT: Of course, that is not the question; objection overruled as to the question.”

The witness then testified that he sold his 160 acres at $500 per acre for a total of $80,000 which concluded his direct examination. On cross-examination, Mr. Florence was interrogated chiefly as to the character and lay of his land and his knowledge of the Meyer farm and its improvements. In answer to whether there was “a creek that ran down through this property”, the witness stated: “It didn’t touch my place. When the lake was formed, it covered forty acres of the bottom land.” This rather indefinite voluntary statement was the first intimation to the uninformed that Mr. Florence’s farm had been acquired by the County as a part of the lake site. Still there was no effort by the plaintiff to strike the answer or to develop that the transfer of the witness’s land to the County was under a threat of condemnation or other than on an arm’s-length basis.

The next episode was during the testimony of defendants’ witness, William Schwab, a farmer and landowner in the vicinity of the Meyer farm. He testified that he was familiar with the Meyer farm and its productivity and that in his opinion the value of the land exclusive of improvements was $500 per acre. During cross-examination, plaintiff asked the witness what the land in this vicinity and particularly the Lienweber land sold for in 1955 regardless of whether such land was “required by the lake or somebody else” whereupon this occurred: . “Q Do you know what it sold for the lake for? A Around $260.00 an acre; that was condemned through the County Court.

“MR. TITUS: [counsel for the plaintiff] If Your Honor please, I would like for you to instruct the witness to answer the questions and not to volunteer information.

“THE COURT: Yes.

“MR. BUSH: [counsel for the defendants] Do I understand that was a condemnation sale?

“MR. WILLIAMS: [counsel for the plaintiff] That was a negotiated sale, not a condemnation.

“MR. BUSH: Then, I want to put in all the other sales, what you paid for all these other tracts. They have opened it up, Judge, and I have a right to show all these high prices they paid for these other tracts of adjoining land around here.

“(Whereupon, the following proceedings were had within the presence but without the hearing of the jury:)

“MR. WILLIAMS: Your Honor, I object to the outburst of counsel in the presence of the jury.

“THE COURT: Sustained.

“MR. WILLIAMS: My objection to Mr. Bush’s remarks about the high prices paid these other people, is that it is prejudicial to the rights of Jackson County.

“THE COURT: What is to be introduced in evidence the Court will rule on when it is introduced.

“(Whereupon, the following proceedings were had within the presence of the jury:)

“THE COURT: Members of the jury, disregard Mr. Bush’s statements.

“(Whereupon, the following proceedings were had within the presence but without the hearing of the jury:)

“MR. WILLIAMS: I ask the Court to reprimand Mr. Bush.

“THE COURT: Yes, don’t do that, Mr. Bush.

“MR. TITUS: I want you to instruct the witness to answer questions and not volunteer information. All that information was volunteered about the condemnation. I didn’t ask him that question.

“MR. WILLIAMS: Many of these were negotiated sales and I have a right to show what they were sold for.

“MR. BUSH: Do I understand that your idea of the law is if they were negotiated sales to the County in the course of buying land for this lake bed, I can show that evidence to the jury?

“MR. WILLIAMS: I didn’t say you could.

“THE COURT: I think you can. If the property sold under some forced sale by condemnation, that is another thing.

“MR. BUSH: My understanding has always been if you start under a threat of condemnation—

“THE COURT: (interrupting) He volunteered about the condemnation. The question was direct and he stated he knew the prices.”

This concluded the cross-examination and, on redirect, Mr. Schwab testified without objection from the plaintiff that his land and the Oglevie land were sold by “negotiated sale” and he was permitted without objection to state the purchase price. This concluded the defendants’ case in chief. Plaintiff’s first witness, Russell V. Baltis, a real estate appraiser testified that he inspected the Meyer farm and improvements; that he valued 50 acres at $150 per acre, 60 acres at $250 per acre and 85 acres at $125 per acre for a total value of $33,125 for the land; that the value of the improvements was about $41,875 and that the total value of the land and improvements was $75,000. Thereafter the following then occurred during direct examination by plaintiff’s counsel: “Q Did you know what any of this other property sold for that was in this immediate adjoining vicinity? A Oh, yes.

“(Whereupon, the following proceedings were had within the presence but without the hearing of the jury:)

“MR. BUSH: If the Court please, at this time he is asking for land in the immediate vicinity, and I ask that all sales of property sold by negotiated sale to Jackson County at or about the time they were acquiring this lake site and the threat of condemnation zvas laying in the background, be excluded.

“MR. TITUS: Your Honor, he has gone into it himself. He asked the witness himself before he closed his case the very same questions.

“THE COURT: There wasn’t even any objection to your question, Mr. Bush.

“MR. BUSH: I objected to it, it is in the record, and you overruled my objection, so to protect myself I had to put in one sale. Now, I am renewing my objection.

“MR. WILLIAMS: We are perfectly willing that the jury know what we paid for that land on the negotiated sale. I objected to his speech.

“THE COURT: Yes, it was what you had to say in the way of an argument about the matter. You can show any negotiated sale.”

The witness then testified that the Florence tract was the “highest developed property on the entire lake”; that he valued the land at $250 per acre and the improvements at $38,637 for a total value of $80,-000. The plaintiff then put in evidence the negotiated sale price of other tracts all at a less amount than the Florence tract. Without further objection, the plaintiff’s next witness, Charles L. Stroud, also testified to the negotiated sales price of other tracts of land acquired by the County for the lake site.

The ground now urged by the plaintiff in support of its objection is Mr. Williams’ statement that the Florence land “was bought by the County in an effort to avoid litigation.” At that time there was nothing in the record to show that the Florence land was acquired as a part of the lake site under a threat of condemnation. In its reply brief, the plaintiff asserts that Mr. Williams was the county counselor and “was in a position to know whereof he spoke and his statement was accepted as the fact by the court and defense counsel without question.” Nevertheless, we are bound by the record and cannot speculate as to what the court and counsel knew dehors the record. It is incumbent upon the complaining party to make known to the court his “objection to the action of the court and his grounds therefor”. S.Ct. Rule 79.-01, V.A.M.R. So far as disclosed by the record at the time of the objection, the litigation may have been potential only and unknown to Mr. Florence. After it became apparent that the Florence land was subj ect to condemnation as a part of the lake site, the plaintiff sought no further relief. The trial court cannot now be convicted of error because evidence was subsequently admitted which would have required a different ruling if it had been before the court when the ruling was made. Gough v. General Box Co., Mo., 302 S.W.2d 884, 888 [6]; Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 104 [11].

The record does not bear out the plaintiff’s contention that it was forced to offer evidence of negotiated sales of other tracts by reason of the adverse ruling of the court in admitting the testimony of Mr. Florence. On the contrary it appears that the plaintiff voluntarily adopted the evi-dentiary theory that it was entitled to introduce evidence of the purchase price of negotiated sales of other property acquired for the lake site. This evidence was generally favorable to plaintiff’s position and there was no suggestion that it was being offered as a result of an adverse ruling. The plaintiff insisted that the amount paid for the Lienweber tract was admissible because it was “a negotiated sale, not a condemnation”. In arguing plaintiff’s objection to this kind of evidence, plaintiff’s counsel stated his theory in this fashion: “Many of these were negotiated sales and I have a right to show what they were sold for”. Thereafter in explaining his objection to a “speech” by defendants’ counsel, the plaintiff made its position quite clear in stating that: “We are perfectly willing that the jury know what we paid for that land on the negotiated sale”. Where a party voluntarily accepts an evi-dentiary theory tendered by his adversary and offers evidence of the same kind and character, he waives his right to assert on appeal that his opponent’s evidence was erroneously admitted. Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, 895 [1]; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 847 [9]; Pratt v. Missouri Pac. Ry. Co., 139 Mo.App. 502, 122 S.W. 1125, 1128 [9]; Ham v. St. Louis & S. F. R. Co., 136 Mo.App. 17, 117 S.W. 108, 110 [5].

This case is wholly unlike Taylor v. K. C. Southern Ry. Co., Mo., 293 S.W.2d 894, 898 [3], cited by plaintiff in which case the trial court over the defendant’s seasonable and proper objection permitted the plaintiff to introduce proof of an issue not pleaded; this court held that the defendant did not waive its objection by offering evidence on the foreign issue thus injected into the case. This and other authorities cited by the plaintiff are not controlling on the facts of this case. The assignment of error is denied.

Next the plaintiff asserts that the trial court erred in refusing to declare a mistrial because of improper, inflammatory and prejudicial jury argument by the defense counsel. The argument concerned the failure of plaintiff’s appraiser, Charles L. Stroud, to bring with him the records of his appraisals of other land acquired for the lake site. His failure to bring his records to court was first brought to light by the plaintiff during the witness’s direct examination. After establishing by the witness that Mr. Dow, an adjoining landowner, “was most agreeable and pleased with the acceptance of $250.00 an acre for his land”, the plaintiff asked the witness to give the different values that he “placed on different component parts of” the Dow land. The witness answered that he didn’t have the Dow file with him and it was developed that the only file that he had brought along was the Meyer file. Mr. Stroud also testified on direct examination concerning his appraisal of and the amount paid by the County for the Oglevie tract, but again could not give complete information because he did not have his file on the Oglevie property. On cross-examination it was brought out that Mr. Stroud was paid to make the appraisals and to prepare to testify as an expert and that he brought to court the records he was asked to bring. Defendants’ counsel asked for an adjournment until the witness brought in his records, but Mr. Stroud said he had “other things to do” and could not get back until the next day, whereupon the parties agreed in the interest of saving time not to wait for the records.

The plaintiff complains of two references during the defendants’ closing argument. One occurred while defendants’ counsel was commenting upon the failure of the witness Stroud to bring in his personal records showing the valuation placed upon the buildings and land where he had negotiated sales of the property to the County. The plaintiff’s objection was that “they are public records equally available to” defendants’ counsel, and this objection was overruled. Defendants’ counsel then continued his argument calling attention to the fact that the records were at the witness’s office, stating that Mr. Stroud was a hired witness who knew something about how to try a lawsuit and drawing the inference that the witness did not want to disclose the price paid for the adjoining property. The following uncompleted sentence was interrupted by an objection: “Certainly, when a great governmental agency like Jackson County, Missouri, one of the richest counties in Missouri, when it comes out — ”. Plaintiff’s objection on the ground that “it is extremely prejudicial to talk about how rich the County is” was sustained, but the County’s motion to discharge the jury was overruled.

Plaintiff’s first contention is that the defendants had no right to comment upon the failure of the witness to have his records in court, saying that the burden of proof was on the defendants and the plaintiff was under no compulsion to produce any evidence. This is quite beside the point because the plaintiff was in the process of offering evidence at the time of the occurrence. The plaintiff put the witness Stroud on the stand and it was his inability to answer questions because he did not have his work sheets or reports with him that provoked the incident on which the argument was based. The cases cited by plaintiff holding that an unfavorable inference cannot be drawn from failure to produce a witness that fe equally available to both parties are not applicable where the witness is on the stand but has failed to bring essential records with him. It is quite clear that the trial court did not err in overruling the objection to the argument which drew an unfavorable inference from the failure of the witness to have his records with him.

The argument about Jackson County being “one of the richest counties in Missouri” was not completed because of the interruption by the objection, but from the context it is fairly inferable that defendants’ counsel was talking of the financial ability of the County to bring in witnesses and their records. The objection was sustained, but the motion to discharge the jury was overruled. When the trial court does not consider improper remarks in argument to be of sufficient importance to grant a mistrial, the appellate courts will defer to the trial court’s ruling unless it appears from the record that the improper argument affected the result on the merits and that the trial court abused its discretion in failing to grant a new trial. Collins v. Cowger, Mo., 283 S.W.2d 554, 561 [9], The record clearly indicates that the trial court did not abuse its discretion in these circumstances. For a similar ruling in a more aggravated case, see State ex rel. Highway Commission of Missouri v. Cone, Mo., 338 S.W.2d 22. No other or intermediate relief was requested. The assignment of error is denied.

The remaining three points presented by the plaintiff are related: They have for their central theme the contention that the judgment should be reversed and the cause remanded for a retrial on the issue of damages because the verdict is grossly excessive. Since the right of the County to condemn the property was not contested, the only issue in the case was the amount of just compensation. ' In urging these points, the plaintiff reiterates occurrences previously presented and ruled adversely to it. Repetition of these matters does not entitle the plaintiff to a reconsideration since the relief requested is in essence the same.

The first contention in this group is that the trial court permitted a trial atmosphere to develop which was hostile to the plaintiff because the County was taking the property by condemnation against the will of the defendants and that this hostile atmosphere resulted in an award of compensation in excess of the reasonable market value of the property. The plaintiff specifies approximately a dozen trial incidents in support of this contention. We find no justification for the plaintiff’s conclusion that the jury or court was hostile to it or that it was denied a fair trial. Recital of a few of the incidents complained of will demonstrate their character. Three of them occurred during the impaneling of the jury. The incidents were not substantial, but if they were the plaintiff would be in no position to complain of them because the parties thereafter stipulated that neither had any objection to the jury as constituted. While testifying, Mr. Meyer lost control of his emotions and sobbed; it was past recess time and the court adjourned. The plaintiff made nothing of the occurrence at the time and, without more, such an incident is not considered prejudicial. Garrison v. Ryno, Mo., 328 S.W.2d 557, 568 [16]; Petty v. Kansas City Public Service Co., 355 Mo. 824, 198 S.W.2d 684, 689 [10]. A couple of the specifications deal with the refusal of Mr. Meyer to produce his income tax records pursuant to plaintiff’s request made during the trial. The records were requested first on the ground of showing the depreciation taken by Mr. Meyer on the farm improvements and then to show his income when he was farming the land which was prior to 1950. Certainly, the court did not abuse its discretion in refusing to grant a mistrial so that the plaintiff could take measures to have these returns produced for examination. The request was not timely. See State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757. Furthermore, the depreciation allowed for income tax purposes does not necessarily fix or determine reasonable market value. Then, too, the most valuable improvement by far was the Meyer home, and a farm dwelling occupied by the owner is not recognized as a depreciable capital asset. 4 Mertens, Law of Federal Income Taxation, §§ 23.53 and 23.54; C.C.H. ’62, Federal Income Tax, Vol. 2, § 167, ¶ 1724.1701. Even considering the income that might be shown for the years prior to 1950, there was no prospect that the returns would have an important bearing on the determination of market value. The admission of the evidence of other sales of land and defendants’ jury argument, both of which have been considered and disposed of previously, are mentioned again in this connection. None of the other incidents mentioned under this point were brought to the attention of the trial court in the motion for new trial. See S.Ct. Rule 79.03. Nevertheless, the events depended on did not separately or in the aggregate deny the plaintiff a fair trial; it is not entitled to a perfect one. State v. Turner, Mo., 353 S.W.2d 602, 605 [9],

The final two points in plaintiff’s brief are substantially the same and can be considered together. One charges that the verdict is so grossly excessive as to demonstrate bias and prejudice requiring the grant of a new trial or a large remittitur; the other asserts that the “cumulative effect of the prejudicial matter brought to the attention of the jury by defendants and the errors committed should shock the judicial sense of right and create a firm conviction in the mind of this court that the ends of justice will be best served by reversing and remanding this case for a new trial on the issue of damages.”

As the statements of these points indicate, the plaintiff undertakes to rehash matters already disposed of, such as incompetent evidence of value, bias and prejudice of the jury resulting from the “prejudicial trial atmosphere built up against it by defendants”, the defendants’ closing argument to the jury, and Mr. Meyer’s emotional behavior. We have held that these matters did not deprive the plaintiff of a fair trial and nothing is added here that causes us to change our conclusion. The trial was by no means one-sided. Neither the plaintiff’s witnesses nor the plaintiff’s counsel overlooked any opportunity to put their case before the jury in the light most favorable to them. If the verdict had been unfavorable to the defendants, they would probably have been in a position to make complaints similar to those now made by the plaintiff. In these circumstances, all that remains to be considered is whether the verdict is supported by substantial evidence.

As previously indicated, there was competent and substantial evidence by Mr. Meyer and other witnesses that the land itself was reasonably worth $97,500 and that the mansion house alone had a reasonable value of $64,000 for a total value of the land and improvements of $161,500. Even the plaintiff’s witnesses testified that the “property was in good condition”, the house was “a good house”, and was “in good repair”; it was “a very excellent house” according to another witness. Mr. William L. Lan-dahl, the director of County Parks, one of plaintiff’s witnesses, testified that he was living in the mansion house which the County furnished to him rent free as his private residence; all other improvements had been removed from the land. Mr. Stroud testified that “Mr. Meyer had some very good, fertile bottom land that the Oglevie acreage did not have”. The photographs in evidence bear out these and other descriptions of the land and its improvements. The location of the land as previously described also contributed to the value of the property. While the verdict of $122,500 is substantial, the amount is neither shocking nor surprising in view of the record and exhibits before us. The jury’s award of damages is supported by substantial evidence and we have no valid reason to interfere with it. City of St. Louis v. Vasquez, Mo., 341 S.W. 2d 839, 852 [31, 32]; Taney County v. Addington, Mo., 304 S.W.2d 842, 843 [3]; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647, 649 [4],

In discussing the Vasquez case, the plaintiff stated that this court “ordered a substantial remittitur from the jury’s award”. This statement is incorrect and completely misleading. The remittitur required was that of interest erroneously added by the trial court to the amount of the verdict; the jury’s award of damages was left intact because it was supported by substantial evidence. 341 S.W.2d pp. 847 and 852.

We have considered all of the appellant’s assignments of error and find them to be without merit. Accordingly the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    TEXAS & NEW ORLEANS RY. CO., Petitioner, v. Melba HART et al., Respondents.
    No. A-8704.
    Supreme Court of Texas.
    April 11, 1962.
    Rehearing Denied May 30, 1962.

      Keith, Mehaffy, McNicholas & Weber, Beaumont, for petitioner.
    Barber & Seale, Jasper, for respondents.
   GREENHILL, Justice.

Melba Hart and Mary Evelyn McCormick were injured when their car was struck by one of the defendant railway company’s engines near La Porte, Texas. Suit was brought on their behalf. The jury found the railway was negligent in failing to have in operation blinker-light warning devices and in failing to provide adequate warning at the crossing. It found the driver of the car, Mary McCormick, was also negligent in failing to keep a proper lookout and in other respects. The jury answered issues of discovered peril against the railroad: that its fireman discovered and realized the perilous position of the girls in time, and negligently failed to exercise the means at hand to avoid the collision. Judgment was entered against the railway: $15,000 for Melba Hart and $5,000 for Mary McCormick. That judgment was affirmed by the Beaumont Court of Civil Appeals solely on the basis of the discovered peril issues. 350 S.W.2d 227. It required a remittitur which reduced the amount of the recovery to $5,000 for Melba Hart and $2,000 for Mary McCormick.

Because the question is whether there is “some' evidence” or “no evidence” to support the jury’s answers to the discovered peril issues, the facts must be set out.

The driver of the car, Mary McCormick, age 19, decided to drive to Alvin to see a boy friend. She invited Melba Hart, age 17, who lived at Kountze, Texas, to ride with her. Melba did not share the expense and had no control of the car. The girls left Kountze around 9:15 a. m. on Sunday of the Labor Day weekend, 1958. They drove to Baytown, through the tunnel under the Houston Ship Channel, and stopped at a stop sign before entering Spencer Highway which runs east and west from La Porte, Texas, to the vicinity of Houston. They turned right onto Spencer Highway, in a westerly direction, heading toward Houston and Alvin and away from La Porte. The railroad crossing was about a half mile toward Houston from the stop sign. The car was driven at approximately 35 to 40 miles per hour when it got to the tracks and was struck. The time of the accident was around noon on a clear August day.

The terrain at and all around the crossing is flat. The railway track crosses the highway at right angles, in a north-south direction. There is a depot on the northeast side of the highway-railway intersection. At some time before the collision, it formed an obstruction to the vision of the driver of the car and the fireman of the train. It was located 99.6 feet north of the highway (from which direction the train came) and 21 feet east of the main railroad track. There was a spur or house track on the east side of the depot. The main track was on the west side of the depot.

The train in question consisted of a diesel engine and about 40 freight cars, 36 loaded with gravel and 4 empties. There is a dispute as to how many freight cars were on the spur track (which would also obstruct the vision of the driver of the car from the train, and the vision of the fireman of the car). The engineer testified that he had spotted one car of automobiles on the spur track just opposite the platform of the depot. Haying spotted the car, he backed to a switch, and was just getting underway again shortly before the collision.

An agent of the railway testified that at this intersection, there were on both sides of the track large railroad warning standards. At the top of the standard was a crossbuck; below the crossbuck were automatic flashing lights which were activated by a train on the track in the vicinity of the crossing. The standard on the east side of the track (the side from which the girls approached) was also equipped with an automatic bell. The standard on the other (western) side, he testified, had the flashing lights but no bell. The County had railway crossing signs on both sides of the crossing.

Melba Hart said that as she and Mary McCormick approached the crossing they were talking; that she first saw the train when it came out from behind the depot [which is 99.6 feet from the highway]. On cross examination, she testified that she didn’t see the train until the automobile was crossing the track. She said she was looking straight ahead “and then I just happened to glance over my right shoulder and I saw the train just before it hit us.” The engine struck the car on the car’s right side, the side on which Melba was sitting.

She said there were no blinking lights, no bells ringing, no whistle blowing. She did not see any railroad crossing sign. On cross examination she admitted that “when the train hit me, I forgot everything I did know.” As to the warning signs, she said, “I don’t remember none of this stuff.” She could not remember how fast the train was moving; she had no earthly idea.

Mary McCormick, the driver, also testified that there were no blinking lights at the crossing. She heard no bells or whistle. She was “normally looking down the highway,” but she did not see the train until about a second before her car was hit. She remembered the county railroad warning sign. She did not remember whether there were any railroad standards equipped with warning lights. She did not know whether the sign and the device were there or not. She did not see any blinking lights; there were none working to her knowledge.

She did remember the depot, and she did remember some box cars which were not moving [apparently on the spur track]. She had no idea as to the speed of the train. She had no idea how far her car was from the tracks when she first saw the depot. She just saw the train when the front of her car was on the track.

Mrs. Earlene Hart, Melba’s mother, happened also to have driven across this highway and crossing that weekend. She testified that when she crossed there on Friday, there were no signal lights at the crossing. When she drove back across it on Monday, there was some sort of bell-like structure hanging over the highway. She could not remember whether it was anchored by a post on the left or right of the highway, or how it got put up over the Labor Day weekend. There was no evidence that there was a train in the vicinity to have activated the warning signals, assuming they were there. When she drove back on Monday, she had not been informed, and did not know, that her daughter had been involved in an accident at the crossing.

Roland Lee Gadman was driving on the Spencer Highway on the day of the collision. He was headed in the opposite direction from the girls. He was an eye witness. As he approached the crossing from the west, headed toward La Porte, he stopped because he saw the flashing warning lights on the railroad sign. The lights were in operation below the usual cross-buck sign. He was positive that there were similar devices on the opposite side of the track, which were still there; and he would say that they, too, were in operation. But he did not know, positively, that they were in operation since they were on the opposite side of the crossing. The traffic was heavy this weekend.

He first noticed the train when it was 75 to 100 feet from the highway — when it was just about even with the depot. The depot would be an obstruction to drivers approaching from the east, as plaintiffs were. He also observed one or two box cars on the spur track. He said the train was just starting, and estimated its speed at from 5 to 8 miles per hour. The engineer was blowing his whistle continuously, for a long time. Gadman heard it above his car radio. Bells were ringing.

He observed the plaintiffs’ car when it was some 20 to 25 feet from the tracks. At this point the engine was entering the left hand side of the highway. The girls’ car did not swerve: “she continued just like she didn’t see it” [the engine]. After the collision, he got out of his car and walked down to the girls’ car, some 50 feet down the track.

G. H. Montemat, the fireman, testified that he sat on the left side of the engine, the side toward the approach of the girls’ car. He and the engineer had spotted a car on the spur track and backed to a switch to continue their journey from Houston to Texas City. He saw the plaintiffs’ car “just as we came out from behind the depot”; “just as we passed the depot.” On cross examination he testified that he first saw the plaintiffs’ car when it was first within his sight range, when the automobile was approximately 100 feet from the crossing. We think, taken in context, he meant that he first saw the automobile when it was within his sight range after he passed the depot.

When the engine backed to the switch to the north of the depot, it came to a complete stop. His estimate of the distance from the switch to the highway was from 300 to 1000 feet. With its 40 loaded and empty cars, it had attained a speed, he estimated, of from 10 to 12 miles per hour. On cross examination, he admitted that the train could have been going as slowly as 5 to 8 m. p. h. He was just estimating. The engine itself is about 45 feet long, and his position was about 40 feet back from the front of the engine. He estimated that he was approximately 90 to 100 feet from the crossing when he first saw the approaching car which would place the front of the train some 50 to 60 feet from the highway. He was examined at length on what he did upon seeing the car then some 100 feet from the crossing. He said “for a second or so, I looked; and then I holloed to the engineer to shoot it” [apply the emergency brake]. On direct and cross examination, this “second or so” was also expressed as “a second or an instant,” “immediately,” “right away,” “a second or two.” tie hollered “loud,” and the engineer applied the emergency without delay, “real quick.” The fireman realized the danger of the collision at the same time; he realized that the automobile was in peril, and he shouted to the engineer to “shoot it.” After he had shouted to the engineer to “shoot it,” he waived his arms out the window trying to attract the attention of the plaintiffs.

It was his duty to ring the bell. The bell is operated by a valve, like turning on a water faucet. He turned on the bell when the train started from its standing position at the switch. It rang continuously across the intersection. The engineer was blowing the whistle continuously from the switch through the crossing. The warning signal lights were working on his side [the plaintiffs’ side]. After the collision, the engine stopped about 80 feet past the highway, “about two car lengths.”

Montemat had been a fireman for the T. & N. O. about 18 years. He had made this particular run occasionally. Pie had been with Frank Rogers, the engineer, two or three times before. The fireman had not been on this particular engine in a good while, and he had not been on it since the accident. There was an emergency brake valve on the engineer’s side, but he could not remember whether there was one on his side or not. He would not say there was not one. The emergency on the fireman’s side was “some new equipment”; “they’re coming out with them.” If there was a brake valve on his side, he didn’t use it. He yelled to the engineer who put on the emergency without delay.

Frank Rogers, the engineer, testified that he had spotted a car of automobiles on the spur track and then backed to the switch for the main track. The switch was 1,000 to 1,100 feet from the highway. The train with its 40 cars, mostly loaded, weighed 2,650 tons. From its stopped position at the switch, the train was accelerating. It had 8 notches of speed on the throttle, and he had advanced the throttle to the 2nd position as it approached the highway. He had not planned to accelerate further because he had other work to do across the highway.

He put on the emergency immediately when the fireman shouted to him. That was when the cab of the engine was just past the depot, about 90 feet from the crossing. The cab is 41 feet back from the front of the train. The brakes, therefore, were applied when the front of the train was some 50 feet from the highway. He traveled some 50, 60, or 70 feet before he felt the impact of the car. The engine was not equipped with a speedometer. He estimated his speed at 10 m. p. h. when the fireman shouted to him, and that the engine’s speed had been reduced by “at least a third” at the time of the impact. On cross examination, he conceded that he could have been going as slow as 5 and not faster than 10 m. p. h. before applying his brakes.

He further testified that the train has air brakes. For them to work, the air runs throughout the [40-car] train, and the brakes on each car set at one time. The train was 1,600 feet long. When the emergency is applied, the power is automatically killed; it is unnecessary to touch the throttle; and sand is dropped under the engine’s wheels. There is no evidence as to how long this operation takes. Nor is there evidence as to how long it takes to stop a train of this size and weight at the speed at which it was going. The engineer testified that the train traveled 175 feet from the time the fireman hollered “shoot it” until it came to a stop; that he stopped it within 200 feet; that the automobile came to rest on his side of the engine, about 85 feet from the highway. He climbed down from the cab immediately and went to the driver. He asked, “Child, didn’t you see the train?” She answered, “Not till we were practically on it. * * * We were talking about an accident we nearly had down the highway.”

He did not know whether there were two emergency brake valves or one on the engine. He knew that there was one on his side. On cross examination he conceded that he had said on deposition, “I’m not sure, but I am positive there must be one.” He concluded on the stand by saying, “I’m not positive.”

The engineer was responsible for the whistle. He blew two long blasts as he left the switch, approximately 1,000 feet from the crossing. Then he blew a series of two long, a short and long blasts. Approaching the crossing, he blew a series of short or warning blasts to warn some boys on scooters, on his side, headed toward La Porte. He kept a long blast on the whistle crossing the intersection. When the engine came to rest, its bell was still ringing. He said the automatic signal lights were on both sides of the track at the crossing, but he did not notice whether they were in operation at that time. He did remember that the bell on the crossbuck standard was ringing.

In a discovered peril case, it is necessary for plaintiffs to prove that the defendant actually discovered and realized their perilous position in time to have avoided the collision by the exercise of ordinary care in the use of all the means at their command. Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967 (1946). It is not sufficient that the defendant should have discovered, or should have realized, the perilous position of the plaintiffs. Safeway Stores, Inc. v. White (1961), Tex., 348 S.W.2d 162; Texas & N. O. R. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378 (1945). There must be a last chance to avoid the injury, and the last chance must be a clear one. R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960).

On the other hand, the fact of timely realization of the danger may be established by circumstantial evidence. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957). To raise the issue of discovered peril here, it was only necessary for the plaintiffs to show that the defendant realized, in time to have avoided the collision, that plaintiffs were in a position of peril, and were pursuing, and probably would continue to pursue, a course that was likely to result in their being injured. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952); Safeway Stores, Inc. v. White, cited just above; Galveston, H. & S. A. Ry. Co. v. Wagner (Tex.Com.App.1927), 298 S.W. 552. The quantum of proof required of the plaintiffs on these elements of discovered peril, in order to entitle them to have the jury pass upon them, was such facts and circumstances as, taken together with all reasonable inferences therefrom, constituted some evidence of probative force of their existence. Ford v. Panhandle & Santa Fe Ry. Co., cited just above.

Viewing the evidence in the light of these principles, it is our opinion that the issue of discovered peril was not raised. There is an absence of proof that the fireman discovered the perilous position of the girls in time to have avoided the collision, or that he failed, after such discovery, to exercise ordinary care in the use of the means at his command to have avoided the injury to them.

The evidence has been set out at length and need not be repeated. The fireman first saw the girls as the cab passed the depot, approximately 100 feet from the crossing. At that point the front of the engine was about 60 feet from the crossing. There is no evidence as to how quickly and within what distance a train, a quarter of a mile in length, consisting of 40 cars, weighing 2,650 tons, might have been stopped or decelerated. The fireman testified that upon seeing the girls and watching them a second or so, a second or two, a moment, an instant, he shouted to the engineer to apply the emergency brakes and that this was done immediately. He also testified that he “immediately” shouted to the engineer. But viewing the testimony most favorably to the plaintiffs, we must assume that a second or two, or a second or so, intervened between the time the fireman saw the girls, realized their peril, and shouted to the engineer.

A discovered peril case which has some facts similar to this case is Martin v. Texas & N. O. Ry. Co., Tex.Civ.App., 236 S.W.2d 567 (writ refused; 1951). The plaintiff there approached the railroad in his car. The railway was switching cars. The engine had stopped some 20 feet from the street, then started slowly toward it at 3 to 5 miles per hour. The fireman saw the plaintiff at 100 to 125 feet as his car approached and realized, when the train was 10 feet from the pavement, that the plaintiff was not going to stop. He shouted to the engineer to “big hole it.” The engineer applied the emergency. The Court stated, “An interval of time had to elapse after realization until the fireman could give the signal. A greater interval of time had to elapse to enable the engineer to understand the signal, respond, and apply the brakes.” An elapsed time of “two and a fraction seconds” was held to be too short to raise the issue of discovered peril.

In the Creech case, the fireman waited some five seconds after discovering the deceased on the railroad trestle before shouting to the engineer to apply the brakes. There was some evidence that the brakes were not in fact applied before the train struck the deceased. By a divided court, it was held that the issue of discovered peril was raised. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957).

Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957), involved a question of time, though it was not a discovered peril case. It was conceded, as held in this Court’s original Biggers opinion, that if less than 2 seconds elapsed between the time the Ford driven by Biggers came in front of the defendant’s bus, there would be no liability. On rehearing, the Court found that 3½ seconds [or more] elapsed, and that this was sufficient time for the bus driver to have reacted and taken some evasive action.

In the present case, the engineer corroborated the fireman’s testimony. He said the fireman shouted to him when the cab of the engine was just passing the depot, some 90 feet from the crossing. The front of the engine was then 49 feet from the highway. He put on the emergency immediately, and the train’s speed was reduced, he said, by one-third by the time of the collision.

While a jury would be free to disbelieve the testimony of the fireman and the engineer, their testimony is not evidence that the opposite of what they said was true. Safeway Stores, Inc. v. White (Tex.Sup.1961), 348 S.W.2d 162. We find no other direct evidence; and the facts and circumstances do not point to an earlier discovery or realization on their part, or that they did not exercise ordinary care in the use of the means at hand to avoid the collision. The girls said they didn’t see the engine until it was upon them. Neither girl had any idea of the train’s speed or its actions. The eye witness, Lee Gadman, gave no testimony which aided the girls. His testimony was that the warning signal was working, bells ringing, whistle blowing, and that the girls’ car came to a stop but 50 feet down the track.

Counsel for the girls argues that there is proof that the engine’s operators did not •exercise ordinary care with all of the means at their command to avoid the injury because the fireman did not apply the emergency brake which was on his side. The burden was upon plaintiffs to prove that there was an emergency brake on the fireman’s side. There is no direct proof that there was. The fireman, who had been on this particular engine only a few times and never since the accident, testified that such valves were new equipment and were coming out, but that he did not know whether there was one on this engine or not. The engineer said he did not know either whether this particular engine had one emergency valve or two; he knew there was one on his side. He conceded that he had said on deposition that he was sure there was one. But on the trial, he repeated that “I’m not so positive.” Assuming that this raises an issue as to whether there was such a valve, our conclusion is that, even so, the operators of the engine did all they could in the time which they had, by the exercise of ordinary care, to avoid the collision after the discovery of the girls.

There was but a very brief period of time involved here. This Court has held that the basis for recovery on discovered peril rests on humanitarian doctrines: a person seeing another in a position of peril, and recognizing the danger in time to avoid it, nonetheless negligently fails to use the means at hand to avoid it. The dereliction of duty alleged, it is said, is an act of inhumanity which should never be imputed in the absence of competent evidence warranting an inference of guilt. Texas & N. O. Ry. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378 (1945). Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967 (1946); Sugarland Industries v. Daily, 135 Tex. 532, 143 S.W.2d 931 (1940); Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880 (1949). It is our own opinion that a pause of a second or so, or a second or two, on the part of the fireman as he watched the girls approach at 35 to 40 m. p. h., and realized their position, was not under the circumstances sufficient to raise the issue of discovered peril.

Counsel for the girls argues that there is evidence from which the jury could infer that the fireman discovered the girls’ car before the cab of the engine passed the station. This is based on the isolated statement by the fireman that he saw the girls when their car was first within his sight range. There was nothing to obstruct his view from his position at the switch, 1000 feet from the highway, except the depot and whatever freight cars were on the spur track. Assuming that this is the import of his testimony [and we do not think it is], the girls’ car was visible well back from the crossing. The testimony gives no point at which the vision was obstructed back to the point where the girls turned onto the Spencer Highway, a half mile from the crossing. At points remote from the crossing, the girls, traveling at 35 to 40 m. p. h. {or less as they started from the stop sign) were not in a position of peril. The language of the Ford case is apposite here:

j]V' “When the fireman first discovered the approach of the automobile he had a right to assume that the driver would stop it [the car] before reaching the crossing. Both ordinary care for his own safety and Article 6701d, Sec. 86 (d), Vernon’s Ann.Civ.St. required that he stop it.” Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 567.

As the engine approached the highway, it went behind at least one box car on the spur track and the depot. These were obstructions to vision. When the cab came from behind the depot, the fireman testified plainly that he discovered and realized the peril of the girls. At this point the girls were still approximately 100 feet from the crossing. This opinion has assumed that they were in a position of [discovered] peril from that time, but not before.

Our holding that the issue of discovered peril was not raised disposes of the claim of the driver, Mary McCormick, who was found by the jury to have been contributorily negligent. But her negligence is not imputed to Melba Hart, her guest. As to Melba Hart, the jury found that the railroad was negligent (1) in failing to have a watchman stationed at the crossing; (2) in failing to have its warning signal light in operation on her side; and (3) in failing to provide adequate warning for the extrahazardous crossing.

We think the evidence, set out above, does not amount to credible testimony that there were no railroad warning blinker lights at the crossing. At most it amounts to testimony that they were not in operation on the girls’ side at the time of the accident. The issue submitted to the jury was not whether there were such signals but whether they were in operation. Since the railroad had automatic blinker lights at the crossing, they were not required, at least under' the circumstances here present, also to have a flagman. Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247, 251 (1932).

But the jury found that these warning lights were not in operation. We think-the evidence set out above raises an issue as to whether they were or were not in operation. The fireman, an interested witness, testified they were working. The engineer did not notice. Gadman said they were working on his side and he thought they were working on the other, but he couldn’t be sure. While the girls, as found by the jury, were not keeping a proper lookout and did not even see the train, they testified that they were looking straight ahead and saw no warning lights. The issue is close, but we cannot say that there is no evidence that the lights were not working. The Court of Civil Appeals did not pass upon whether there was sufficient evidence to support the jury’s answer thereto. The case will therefore be returned to that Court for that purpose.

There is a general finding of the jury that the railroad failed to provide adequate warning at- the crossing. The only suggested ways of warning were: flashing light signals, a flagman, the blowing of whistles, and the ringing of bells. We have dealt with the flagman and the flashing light signals. The jury made specific findings that the railroad did not fail to ring its bell or blow the whistle. Gadman, the eye witness, heard both and stopped because of them. The answer to the general issue on inadequate warning therefore adds nothing and is not controlling. Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001, at 1003 (1935).

One question remains: the jury found that the warning signal lights were not in operation and that this failure constituted negligence and a proximate cause. The railroad says that no issue was raised for the jury, and that as a matter of law, it is not liable because, even assuming the signal was not working, there is no proof of negligence on its part; that there is no evidence as to how long the signal had been inoperative, no proof that it knew it was inoperative, and no proof that it should have known.

We do not have here the question as to whether the failure of the warning devices to operate at an extrahazardous crossing constitutes negligence as a matter of law. The question was submitted to the jury which found that it did constitute negligence. Our view is that it is the duty of the railroad to warn at such a crossing. It may give warning in a number of ways. Where it elects to warn by the use of an electric flashing light device, the burden is upon it to see that the device operates. Otherwise, at least as to the mechanical part of the device, it gives no warning.

There may be reasons why a device is inoperative. For example, there could have been a power failure through no fault of the railroad. The device may have been struck by lightning, knocked down or broken by a third party. No reason is given or suggested here. Assuming that the signal lights were not working, we think their unexplained failure to work raised an issue of negligence for the jury. See Annotation, 53 A.L.R. 973.

As to Mary McCormick, this cause is reversed and judgment is here rendered foi the petitioner, the defendant in the trial court. As to Melba Hart, the cause is reversed and remanded to the Court of Civil Appeals for further proceedings in accordance with this opinion.

      . There is no question here of the safety of the train or its operators.


author: STEAKLEY, Justice. SMITH, Justice

text:
    The STATE of Texas, Petitioner, v. Ralph OAKLEY et al., Respondents.
    No. A-8520.
    Supreme Court of Texas.
    March 28, 1962.
    Rehearing Denied May 30, 1962.

      Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins and Jay Howell, Asst. Attys. Gen., Austin, for petitioner.
    David Tisinger, Austin, for respondent.
   STEAKLEY, Justice.

In this condemnation proceeding the jury found the market value of the 66.1 acres of land taken was $62,500.00 and the judgment awarded respondents a recovery in this amount. Respondents appealed and the Court of Civil Appeals reversed and remanded the cause (346 S.W.2d 943) upon the holding that the trial court erred in permitting an expert witness for the State to testify to the sale prices of several tracts of land, of which he did not have firsthand knowledge, for the purpose of showing part of the basis for his opinion of the market value of the land condemned. The Court of Civil Appeals regarded the testimony as hearsay and therefore inadmissible.

The precise problem arises from the testimony offered by petitioner of the witness, Jim Frederick, a real estate broker and professional appraiser. The witness was offered as an expert and was permitted, over objection of respondents as hearsay, to testify on direct examination concerning several sales of properties which he considered comparable, and as aiding him in reaching his opinion of the value-of the tract taken, but the sales prices of' which he learned from other sources. The testimony as to the other sales was not offered as proof of the facts of such sales,, or of the sales prices, but for the limited' purpose of showing a part of the basis forth e value opinion of the witness.

We have reviewed the testimony of the-witness and note that no objection was-made by respondents to his qualifications, as an expert “in the real estate appraisal business.” It further appears that the-witness was “employed by the State to-make appraisals of the Ralph Oakley property” and that he testified in considerable detail concerning the manner and method', of his appraisal study, together with the-factors considered by him. He testified', that his opinion of the value of the 66.1 acres condemned was “$49,401.00, which is. an average of $747.36 an acre.” He then-explained at considerable length the various, factors considered by him in the value conclusion to which he had testified, and' stated that “the most comparable sales are-those located in the immediate vicinity and that are subject to the same influences, the same traffic, the same population, the same characteristics, nearer to the location of the property you are appraising, are more comparable.” Thereupon the witness-was interrogated concerning the various: sales which he considered, after which counsel for the State commenced a series-of questions as to what the various pieces-of property sold for, asking at the outsetr the sale price of the first piece of property to which the witness had previously testified. At this point counsel for respondents-took the witness on voir dire and established! that he did not “participate personally in the sale.” Whereupon objection was interposed “to any further testimony as hearsay and going into mental processes.” Counsel for the State then took the witness on direct examination and asked, “Did you confirm this sale with the buyer or the seller?”, to which the witness replied, “I confirmed it with one of the principals involved.” Counsel for the State then stated to the court: “Your Honor, we tender this evidence, not to prove the actual sale itself, but as one of the bases from which the witness arrived at his opinion of value.” The court overruled the objection of counsel for respondents, whereupon counsel for respondents asked, “May it clearly be understood that I have a running- bill of exceptions on all of these sales that he goes into * * * on the ground that they are hearsay.”, in support of which counsel for respondents again took the witness on voir dire to establish that he, the witness, did not “participate in any of these sales” himself. The court then gave counsel for respondents “a full bill on all these sales.” Thereafter the witness proceeded to recite the sales price of the properties which he had investigated and which he considered as comparable to the property involved in the condemnation suit, after which counsel for respondents interrogated him at considerable length on cross-examination.

With respect to the testimony of the witness in the particulars under review, the trial court instructed the jury as follows :

“You are instructed that testimony by witnesses not having first hand knowledge of the matter stated that •certain properties had sold for certain prices shall not be considered as evidence that such properties have sold ■or that such properties have sold for the prices stated, or as evidence of the market value of the property involved, but may only be considered as being information which the witnesses testified they gathered for the purpose of forming an opinion of the market value of the property involved.”

The question before us is narrowed to that of the admissibility of the testimony of the expert witness concerning sales of which he did not have personal knowledge, and which was offered for the limited purpose we have noted, since neither the qualifications of the expert witness nor the comparability of the sales to which-he testified are challenged. See in the latter connection Hays v. State, Tex.Civ.App., 342 S.W.2d 167, State v. Morse, Tex.Civ.App., 342 S.W.2d 165, and State v. Sides, Tex.Civ.App., 348 S.W.2d 446 (all writ refused, n. r. e.) which considered the admissibility of expert testimony as to comparable sales when questioned on the basis that the sales were not sufficiently similar to be comparable but in which the source of information to which the witness testified was not raised.

On the question thus presented there is a division of authority between the .cpurts of other states and between the Courts of Appeals in Federal jurisdictions.

Kentucky, Oregon and New Jersey have adopted the view that the testimony is admissible and that the hearsay exclusion is inapplicable. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880; State v. Parker, 225 Or. 143, 357 P.2d 548; Delaware, L. & W. R. Co. v. City of Hoboken, 16 N.J.Super 543, 85 A.2d 200.

We quote the analysis by the courts in Stewart v. Commonwealth and in Delaware, L. & W. R. Co. v. City of Hoboken, supra:

Stewart v. Commonwealth :
“It is quite often true that the most thorough, comprehensive and accurate professional appraisals are based almost entirely on ‘hearsay’ in the legal sense of the word. Persons who appraise or deal in real estate professionally make it their business to keep abreast of current transactions. The value of an appraisal depends very largely on the manner in which it is developed. It is of importance to the court and jury to know how it was made and on what information it was based. If some or all of that information was acquired by hearsay, but through the customary channels of the trade, or by methods recognized as standard in the making of appraisals, we see no useful purpose in a rule of absolute exclusion. Therefore, confining the effect of this opinion to witnesses whose qualifications include experience in appraising or dealing in real estate as a business, we hold that testimony as to the prices paid - in comparable sales is not inadmissible merely because it is secondary or hearsay evidence. Since Mr. Hennessy was professionally qualified as an appraiser and real estate broker, the fact that he had verified the prices by personal contact with the purchasers was a sufficient basis to admit his testimony • on the comparable- sales.”
Hoboken:
“The modern trend in the law of evidence favors both a liberal rule of admissibility and the giving of a broad discretionary control to the trial judge. The present rule in many, perhaps in a majority, of American jurisdictions permits an expert witness as to value to base his opinion on those sources of information to which business men usually resort, and allows the witness to divulge to the court the data on which his opinion is based, even though hearsay testimony is thus presented. 32 C.J.S., Evidence, § 545, p. 289. Our standard of true value is the price a willing purchaser and a willing seller would agree upon. Murphy v. Town of West New York, 132 N.J.L. 111, 39 A.2d 38 (Sup.Ct.1944). The expert witness should consider the same elements as would willing and intelligent buyers and sellers; he may rely upon the same sources of information that they would use. As Chief Judge Parker pointed out in U. S. v. 25.406 Acres of Land, 172 F.2d 990 (4th C.C.A.1949), since the court adopts the standards of the market place in making valuations, there is no reason why it should close its eyes to how the market place arrives at and applies the standards. And see the opinion of Chief Justice Maltbie in Vigliotti v. Campano, 104 Conn. 464, 133 A. 579 (Conn.1926). Also City of Baltimore v. Hurlock, 113 Md. 674, 78 A. 558 (Md.1910), and Davenport v. Haskell, 293 Mass. 454, 200 N.E. 409 (Mass.1936).”

Massachusetts, Colorado and Missouri hold the view that such testimony is improper as hearsay and is misleading. See National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288; Hunt v. City of Boston, 152 Mass. 168, 25 N.E. 82; City and County of Denver v. Quick, 108 Colo. 111, 113 P.2d 999, 134 A.L.R. 1120; State of Missouri ex rel. State Highway Comm. v. Dockery, Mo., 300 S.W.2d 444.

The United States Court of Appeals for the First Circuit in United States v. Katz, 213 F.2d 799, denied the contention of the government that expert witnesses “should have been allowed to testify as to those prices [paid for comparable lands] on direct examination to show the jury the basis upon which their opinion of value rested,” and quoted with approval from the Massachusetts case of National Bank of Commerce v. City of New Bedford, supra, that “An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience. But the fact that an expert may use hearsay as a ground of opinion does not make the hearsay admissible.”

Our research does not disclose any subsequent case in Federal jurisdiction following the view stated by the First Circuit.

The less strict view was expressed by the Court of Appeals for the Fourth Circuit in United States v. 5139.5 Acres of Land, 200 F.2d 659, 662, as follows:

“If the expert has made careful inquiry into the facts, he should be allowed to give them as the basis of the opinion he has expressed. If he has not made careful inquiry, this will he developed on cross examination and will weaken or destroy the value of the opinion. Ordinarily evidence as to facts of this sort given by an expert as the basis of his opinion as to value comes with a sufficient guaranty of trustworthiness to justify the relaxation of the hearsay and best evidence rules.”

The above holding has been followed by the Fourth Circuit in United States v. Lowrie, 246 F.2d 472, by the Ninth Circuit in United States v. Johnson, 285 F.2d 35, by the District of Columbia Circuit in District of Columbia Redevelopment Land Agency v. 61 Parcels of Land, 98 U.S.App. D.C. 367, 235 F.2d 864, 865, and by the Fifth Circuit in International Paper Co. v. United States, 227 F.2d 201, 209.

The question at hand was considered by the Houston Court of Civil Appeals in cases of City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, and City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488, each with no writ history, in which the admissibility of the testimony was upheld when “offered for the limited purpose only of showing the basis for the witness’s conclusions as to the value of appellee’s property,” the Court citing United States v. 5139.5 Acres of Land, supra, and Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192 (writ ref. n. r. e.). While not directly considering the question, the opinion in Cole is subject to the construction that the testimony of an expert witness concerning facts upon which his opinion is founded will not be excluded “merely because it is based upon what is usually regarded as hearsay.” Wichita Falls R. & Fort Worth R. Co. v. Cooper, Tex.Civ.App., 235 S.W. 927 (no writ hist.) is inapplicable because the testimony there held improper was an offer as original evidence of “the statement,” said the court, “of what Mr. Davenport told him or what he had heard was the asking price of the lots, or of the price Mr. Williams was willing to give for three acres of the Cooper land in an exchange of properties(Our emphasis)

The Court of Civil Appeals in the case at bar appears to have misconceived the nature of the problem as indicated by the following statement in the opinion: “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.” (Our emphasis) The Court of Civil Appeals also cites the following from the opinion of this Court in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816, and comments that it is not subject to the interpretation of “condoning or authorizing the admission of hearsay testimony when offered on direct examination as original evidence”:

“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.”

Cannizzo did not have the problem with which we are here concerned; moreover, as previously recognized and as adverted to immediately above, the testimony of the expert witness in the case at bar, as to the other sales which he considered in reaching his value opinion, was not offered or received by the trial court “as original evidence” of other sales, and the prices for which other properties sold, for the purpose of establishing the market value of the land in question. Inquiry into the details or mental processes on direct examination was denied by this Court in Cannizzo in relation to “opinion testimony as to the front foot value of nonexistent lots in a hypothetical subdivision [which] is too speculative to be admitted as direct evidence of market value.”

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 testifies, 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 con-demnee.

The Court of Civil Appeals also considered other points of respondents “in view of another trial.”

The first point considered was that a subdivision plat of the 100-acre tract out of which the 66.1-acre tract was taken should have been admitted in evidence because, said the court, “we think the plat would assist the jury in evaluating the evidence.” The plat referred to was offered by respondents as their Exhibit No. 2 and, according to the Statement of Facts, was actually received in evidence for the limited purpose of showing the susceptibility of the property to a particular use and for no other purpose. This is recognized by counsel for respondents with the explanation that his point of error in the Court of Civil Appeals was not with reference to the subdivision plat itself but to the refusal of the trial court to admit further testimony that “the property had actually been staked out on the ground.” It appears that the subdivision plat was given final approval by the City of Austin on January 6, 19SS, but that financial arrangements had not been completed and the plat had not been recorded. The condemnation proceeding was instituted in November, 1958. Respondents argue that notwithstanding admission in evidence of the subdivision plat the refusal of the trial court to allow the additional proof that “the property had actually been staked out on the ground was calculated to lead the jury to believe that the subdivision was on paper only.” A review of the record convinces us that respondents were given every proper advantage of the existing status of the subdivision and that the exclusion of the evidence that the property had been staked out on the ground was not reversible error.

The Court of Civil Appeals also criticized the manner of special issue submission. The full tract owned by respondents consisted of one hundred acres out of the interior portion of which 66.1 acres were taken. Four irregularly shaped and separated tracts remained. Special Issue No. 2 inquired if the remaining property had decreased in market value as a result of the condemnation, to which the jury answered in the negative. This rendered answers unnecessary to Special Issues 3 and 4 which inquired as to the before and after market value of the remaining property. Respondents objected to this manner of submission and requested the submission of such issues as to each of the remaining tracts considered separately. The Court of Civil Appeals expressed the opinion that Special Issue 2 should not have been submitted and that the before and after value issues should have been separately submitted as to each of the four tracts.

We do not agree. The manner of submission was not duplicitous, as insisted by respondents, nor is the submission requested by respondents called for by the opinion in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, as indicated by the Court of Civil Appeals. The ultimate issue as to the remaining property was whether or not its market value was decreased as the result of the taking of the 66.1-acre interior portion ; if not, respondents were not damaged in this respect. The nature and location of each of the remaining tracts, and the circumstances surrounding them, was developed in the evidence and from this the jury could properly and fairly conclude whether or not there had been a decrease in the market value of the property remaining. Consideration of the nature of the remaining property was necessarily involved in reaching this conclusion. Fairness and justice to respondents did not require submission of the same body of issues as to each of the four separate tracts which remained. Special Issues, 2, 3 and 4 fairly submitted the controlling issue as contemplated by Rule 279, Texas Rules of Civil Procedure.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN, SMITH, WALKER and HAMILTON, JJ., dissenting.

SMITH, Justice

(dissenting).

The witness, Frederick, a real estate broker and professional appraiser, was sworn and qualified as an expert on land values in the involved area. He was then allowed over objection to recite out-of-court statements, made to him by parties not present at the trial, concerning sales prices for property comparable to that condemned. The witness, Frederick, had no personal knowledge of these sales. Objection was made that this testimony was inadmissible because in violation of the rule against hearsay. The State admits that the testimony was hearsay, but contends it offered the testimony not to prove the truth of the sale price but to show one of the bases from which the witness arrived at his opinion of value. In my opinion, the testimony violated the rule against hearsay, and the introduction thereof was improper and prejudicial.

“The Hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of Cross-examination.” But it is more than a technical rule. It is a principle, whose purpose is assurance that a full and truthful disclosure of facts will he possible. It must be as broad as its purpose:

“The testimony of N. though not, technically, hearsay evidence, is liable to the same objections; for it is resorting to an inferior or secondary species of proof, without necessity; * * *. Hearsay testimony is from the very nature of it, attended with all such doubts and difficulties, and it cannot clear them up. ‘A person who relates a hearsay, is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities: He intrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.’ It is against sound principle, and would at once awaken distrust, for a party to resort to a secondary species of evidence, so long as the original and primary evidence exists and can be produced. The plaintiff, by means of this species of evidence would be taken by surprise, and he precluded from the benefit of a cross-examination of S. as to all those material points which have been suggested as necessary to throw full light on his information.”

There are factors in the present case which require the application of the rule.

“ * * * certainly most transactions' are likely to be influenced by the motives of the parties thereto, such as the special needs or the strong desires •of the buyer, the financial or other exigencies of the seller, and the whims, follies, fancies or ignorance of local values on the part of one or both of them. Since these are all matters of which persons with only hearsay knowledge of a sale can be expected to know little or nothing, whereas those with first hand knowledge, such as a party to the sale itself or the broker or agent who effected it, can be expected to know at least something, we think the hearsay rule should be adhered to in the interest of justice to both parties.”

The main reason for using an expert is to provide a partial substitution of his judgment concerning the credibility of his ■sources of information for that of the jury on the basis that his experience better •qualifies him to evaluate his findings than the official triers of fact who have only their general knowledge. Judgment and experience serve the same purpose for the •expert as does cross examination for the jury. The jury rather than judging the expert’s sources, judges his ability, and cross examination is available to test him in this regard. When the expert is allowed to recite in detail the specific bits of information he receives from others, those facts are before the jury to be weighed without the benefit of either experience or cross examination. If I am right in believing the jury will be more impressed by the price recited than by the experts’ own opinion, then the rule obtaining in Texas that hearsay has no probative force and will not support a judgment is violated. The question is: What is the best rule from the standpoint of justice which can be established in a case of this type? It seems to me it would be the better policy to adhere to the well-settled rule that hearsay testimony is not admissible as original evidence.

“An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience. But the fact that an expert may use hearsay as a ground of opinion does make the hearsay admissible.”

The Court in the present case puts too great a burden on Oakley, from the standpoint of surprise, if nothing else. Obviously, under the rule laid down, if there are circumstances which could be shown as bearing on the price testified to, even assuming it is not a puffed or deflated price, the opponent must produce someone with personal knowledge of the transaction. Because the opponent does not know what sale prices may be testified about he must in order to protect his client know of every land sale involving land comparable to that involved in the suit he is trying and he must be able to produce a witness with firsthand knowledge of the sale on very short notice. This means, in order to be well prepared, he must know of every sale within three or four miles, and perhaps much farther in a rural area, and over a time span of seven or eight years or longer. It would be more in harmony with well-established rules for the party who wishes the price put in evidence to have the burden of producing competent proof.

If the Court’s opinion becomes the law, then not only will the parties be licensed to shop for a favorable expert, this Court will have licensed the expert to shop for favorable information to relate on the witness stand. Why use competent proof of different sales, which would necessitate putting several witnesses on the stand, with the possibility some unfavorable fact might turn up on cross-examination? Find a favorable expert, or two, who are good witnesses and they can put forth the same information and retire behind the “I was told so” shield. I fear this would be setting a dangerous precedent. If such procedure is permitted in this type of case, then there is no logical reason why it should not extend to medical testimony, for example, and allow a doctor to relate what others have told him or read excerpts from text books to the jury, or both, to show a basis for his opinion. The same would be true where a lawyer might be called upon to testify as to the reasonableness of attorney’s fees. Indeed, the New Jersey case quoted in the majority opinion would apply the rule broadly enough to include such testimony. Such is not the rule in Texas. Hearsay evidence is incompetent as original evidence and has no probative force. In the case of Texas Co. v. Lee, supra, this Court said ■hearsay is incompetent as original evidence and has no probative force. In the case of Texas Co. v. Lee, supra, this Court said hearsay is incompetent and can never form the basis of a finding of fact or of the judgment of a court. This is so whether it be objected to or not, citing Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Austin Bros. v. Patten, Tex.Com.App., 294 S.W. 537.

The case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949), held that certain medical books which were offered in evidence were “but hearsay evidence” and not admissible as original evidence. This Court in holding that such evidence must be excluded as original evidence, said:

“When a doctor testifies as an expert relative to injuries or diseases he may be asked to identify a given work as a standard authority on the subject involved; and if he so recognises it, excerpts therefrom may be read not ■ as original evidence but solely to discredit his testimony or to test its weight.” [Emphasis added.]

This Court apparently is now of the belief that a different rule should apply in a condemnation suit where an expert is testifying than the rule applied in the cases I have heretofore discussed. The case of City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, decided by this Court in 1954, was a condemnation suit. That case, in principle, supports the position taken in this dissent. The exclusion of an inquiry into the details or mental processes by which the witness arrived at his conclusion was held in the Cannizzo case to be proper. This Court at that time was of the opinion that inquiry into the details or mental processes by which the witness arrived at his conclusion was only proper on cross-examination for the purpose of testing the credibility of the witness or for laying a predicate for impeachment. What were the details in that case ? The details were that testimony as to the front-foot value of nonexistent lots in a hypothetical subdivision was admitted in evidence over objection. This Court held that such testimony was too speculative to be admitted as direct evidence of market value. At least the Cannizzo case does not indicate a departure from the well-settled rule that hearsay evidence is not admissible as original evidence. In the Cannizzo case, this 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. * * *»

We have already made one exception to the hearsay rule in behalf of valuation experts. We let them base their opinion on hearsay. I do not think we should go farther and unnecessarily allow the hearsay to be paraded through the courtroom. To do so denies to the opponent a very substantial right without cause. It denies to him the effective use of our judicial process by denying him the right of cross-examination. Cross-examination results many times in obtaining the truth when it otherwise would not be disclosed.

The cases of City of Houston v. Collins, Tex.Civ.App. (1958), 310 S.W.2d 697, no writ hist., and City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488, no writ hist., tend to support the State’s view. These cases should not be followed. They apparently went off on the theory that the admission of such evidence was not error in view of the Court’s instructions in its charge to the jury. It is impossible to eliminate prejudicial error by written instructions. It would be the best policy to not allow such evidence over proper objection to get before the jury. It should be noted that in the Huber case, supra, the Court of Civil Appeals held the admission of hearsay evidence harmless in view of the admission of similar testimony by the opposite party.

The judgment of the Court of Civil Appeals should be affirmed.

GRIFFIN, WALKER and HAMILTON, JJ., join in this dissent.

      . 5 Wigmore, Evidence, Section 1362 (3rd Ed. 1940).

      . Coleman v. Southwick, 9 Johns. 45, 49-50 (N.Y.1812).

      . Woodbury, J., United States v. Katz et al., 213 F.2d 799, 800 (1st Cir. 1954).

      . Texas Co. v. Lee, 138 Tex. 167, 157 S.W. 2d 628 (1941), 1 McCormick & Ray, Texas Law c©f Evidence, § 31 (2d Ed. 1956).

      . National Bank of Commerce of New Bedford v. City of New Bedford, 175 Mass. 257, 56 N.E. 288, 290 (1900).

      . State v. Morse, Tex.Civ.App. (1960), 342 S.W.2d 165, wr. ref. n. r. e. [sale of land four miles from that condemned].

      . Curfman v. State, 240 S.W.2d 482 (Tex.Civ.App.1951, ref. n. r. e.) [sale five years before condemnation]; City of Houston v. Collins, Tex.Civ.App., 810 S.W.2d 697 (1958), [2½ y.ears after condemnation].

      . Delaware, L. & W. R. Co. v. City of Hoboken, 16 N.J.Super. 543, 85 A.2d 200, 206 (1951). Compare: People v. Samuels, 302 N.Y. 163, 96 N.E.2d 757 (1951), reversing a lower court holding, in a sanity case, that a doctor could testify he based his opinion partly on hospital records containing some observations of laymen with this language: “⅜ * * if it was improper that the jury should see them, they should not have been received in evidence as a basis for the experts’ opinions.”

      . See for example: Reed v. Barlow, 167 S.W.2d 933 (Tex.Civ.App.1941, ref.), reversing, in a damage suit for failure to drill an offset well, for allowing an expert to base Ms opinion on: “Schlumbergers”, reports of oil scouts, production data from adjoining wells, logs of nearby wells, and cores of sand from nearby wells on the ground that none of this was in evidence and all was hearsay.