'(2) Use of hearsay is not sufficient to condemn the witness if his comparable sales information is so determined.
'(3) Must know date of condemnation and date of comparable sales.
'(4) Comparable sales must be similar and proximate. See Nichols on Eminent Domain, Vol. 5, Section 21.31, page 439 et seq.
'(5) Comparable sales must be proximate in time and not too remote. See Nichols on Eminent Domain, Vol. 5, Section 21.31(2), page 451 et seq.
'(6) The comparable sale must be an arms length bargain deal and not a forced sale. See Nichols on Eminent Domain, Vol, 5, Section 21.31, page 461 et seq. 'F. In this case what did Minsinger do wrong?
'In a nutshell, Minsinger failed to establish he knew market value in the area from experience of conducting a business there. And as a result had to go further and show * * * how his knowledge was accumulated or gained. This then was where he ran into trouble, and the Court correctly disqualified the witness.
'When Minsinger failed to state he was basing his opinion on general knowledge but rather chose to base his knowledge on certain particular sales he had to establish that these sales meet the legal requirements of comparability as set forth under paragraph (E) above. This Minsinger failed to do. Minsinger admitted on the stand under cross-examination that he did not know whether or not the comparable sales were between parties not being obligated to buy or sell or not. He admitted not knowing whether or not legal compulsion to buy or sell existed. See Hickey v. United States, 208 F.2d 269 (3rd Cir. 1953), and Nichols on Eminent Domain, Vol. 5, Section 21.32, page 463. In many respects his admissions belied his knowledge. Mr. Minsinger conveyed to the Court (sic) a man who in the collection of his data was in too big a hurry to do a proper job. Mr. Tucker mistakenly believes that counsel for plaintiff objects to Mr. Minsinger because his information is based on hearsay or failing to talk to buyer or seller or both, etc. This is not the case at all. Witness can qualify on hearsay particularly men of Minsinger's past experience but when Minsinger admits no experience in the general area and then market data foundation is comparable sales which do not meet the initial requirement of the law, then broker appraiser M.A.I. (American Institute of Real Estate Appraisers) or not he should not be permitted to testify.'
Counsel for the Government has cited three decisions from the Fourth and Fifth Circuits which he asserts support his position that the witness, Minsinger, was qualified. The cited cases are Love v. United States, 141 F.2d 981 (8th Cir. 1944); United States v. 5,139.5 Acres of Land etc., 200 F.2d 659 (4th Cir. 1952); and United States v. Lowrie, 246 F.2d 472 (4th Cir. 1957). This Court has no quarrel with these decisions, but it is apparent that counsel has misinterpreted their holding. The decisions relate to the admissibility of hearsay evidence which in part is the basis for the opinion of the witness, who is otherwise competent. A real estate man's general knowledge of market values in his community is, of course, based upon information he gathers in the course of his daily activities. Unless he has handled a transaction himself, it is always based upon hearsay; but as the information is gained in his line of business as a broker-agent, it is considered reliable and may in part influence his testimony. But it should be emphasized that the hearsay information he gathers comes to him contemporaneously with the transaction. He keeps track of market values and sales. He follows the trend of market conditions. He thus acquires a general knowledge of the subject. That being so, when he takes the stand he may testify from general knowledge and point to matters of hearsay which in part are the basis of his opinion. But the witness, Minsinger, did not have the general knowledge and as a consequence relied solely on four so-called comparable sales. He was thus relying solely on hearsay and on sales which were not in fact comparable.
In the Court's discretion the objection to the competency of this witness was sustained. It is believed there was no error in that ruling.
And now, November 6th, 1964, for the reasons mentioned in the foregoing opinion, the motion to set aside the verdict of judgment and to grant a new trial is denied.
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