The opinion
KEITH, Justice
(dissenting).
Having found error in the proceedings below; and, after making a “judgment call” from a review of the entire record, the majority finds that there is no reversible error. Ordinarily, I would concur; or, at least, suppress my inclination to dissent. A careful review of the record in this case does not permit even this small luxury. Counsel for the landowner alerted the Court and opposing counsel to the two specific “non-comparables” in his motion in limine but the motion was overruled in the teeth of State v. Chavers, 454 S.W.2d 395 (Tex.1970).
Condemnor’s attorney, thoroughly familiar with the doctrine of Chavers , succeeded in convincing the trial court that the evidence was admissible. This Court, recognizing as it must that the testimony was erroneously admitted, affirms, finding “no reversible error.” I do not join in this conclusion.
The first two of the so-called “comparable sales” mentioned by the expert were not within the Chavers Rule; each involved the sale of land with improvements thereon, just as does the property involved in this suit. The condemnee had no tenable objection available and the testimony was received without objection. The first was made upon the basis of 36$ per square foot while the second was upon the basis of 44$
Upon direct examination, over specific objections carefully tailored to invoke the Chavers Rule, the expert’s testimony as to sales of unimproved land produced valuations of 20$ and 19$, respectively, for these two tracts. The receipt of this evidence was clearly error under Chavers and the majority — correctly—so holds. The fifth “comparable” mentioned by the expert was improved land with a square foot value of 34$.
I set out in tabular form the valuations, upon a square foot basis, considered by the condemnor’s expert witness:
Admissible Evidence Inadmissible Evidence
Tract One — 360 Tract Three — 200
Tract Two — 440 Tract Four — 190
Tract Five — 340
Whereupon, and upon the basis of these “non-comparable sales”, condemnor’s expert witness testified, on direct examination, over the landowner’s objection, that the subject property of the landowner had a fair market value of 25$ per square foot, or $35,562. Then, following explicitly the rationale condemned by Justice Reavley in Chavers, supra, the expert placed a value on the improvements of $4,400, which he added to the land value. Thus, he arrived at a value of the property with the improvements at the “rounded” figure of $40,000. The jury verdict was precisely that figure— not a cent more or less — just an even $40,-000.
*328 Application of the expert’s square footage valuation of the true comparables to the property involved in this suit results in the following: *
Tract One (at 360 per sq. ft.) .Subject property: $51,209.28
Tract Two (at 440 per sq. ft.) .Subject property: 62,589.12
Tract Three (at 340 per sq. ft.) .Subject .property: 48,364.32
In order to procure a reversal of this erroneous judgment, it is only necessary that the landowner establish that the inadmissible evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. Pittman v. Baladez, 158 Tex. 372 , 312 S.W.2d 210, 216 (1958). I submit that the receipt of the inadmissible evidence in this case was calculated to cause the trial to be materially unfair. Cf. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974).
This Court faced the converse of the situation in State v. Nesom, 395 S.W.2d 424, 425 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.). There, the jury verdict exceeded the maximum estimate of value of the only witness thereon and the court held that the verdict was excessive as a matter of law. The error was cured by requiring a remittitur to the highest value placed thereon by the sole witness. But we have no additur authority so that we are unable to correct the error by adding $8,364.32 to the sum found by the jury. Lacking such power, our only recourse is to reverse the judgment and remand the cause for another trial at which time the jury will receive and consider only admissible evidence of value.
The springboard used by the majority in finding that there is no reversible error is to be found in these words:
“As stated at the beginning of this opinion, the only witness to testify for the landowner was the landowner whose occupation was that of a nurse. She stated that in her opinion the market value of this property was $90,000 without giving a basis for that opinion. On the other hand, the witness called by the School District had twenty-four years’ experience in real estate and appraising.”
In analyzing the quotation, it should be borne in mind that in condemnation suits the opinions of the landowner are admissible. City of Houston v. Collins, 310 S.W.2d 697, 704 (Tex.Civ.App.—Houston 1958, no writ); State v. Loessin, 343 S.W.2d 494, 503 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.); M. Rayburn, Texas Law of Condemnation, § 128 at 404 (1960). Likewise, the condemnor’s expert witness was shown to be qualified to express his opinion as to the market value of the property.
The charge to the jury in this case set out the correct rule governing the evaluation of testimony: “You [the jury] are the sole judges of the credibility of the witnesses and the weight to be given their testimony
It is readily apparent that the jury rejected the opinion testimony of the landowner and accepted that of Terry. This was well within the authority of the jury; but, in determining the existence of harmless error, it is inappropriate for this reviewing court to assume a similar function.
I am unwilling to find “no reversible error” has been shown. The cause should be reversed under the rules adopted for our guidance. See, e. g., State v. Chavers, supra ( 454 S.W.2d at 398 ); Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.1968).
As noted by the majority, the square foot evaluations shown for tracts two and three were the result of mathematical calculations which the expert reduced by a process of extrapolation: taking the known sales price, he reduced the tract valuation by deducting his estimate of the value of the improvements. Tract one, a part of the property being condemned, had no improvements thereon.