sitting in place of Mr. Justice John C. Harrison, delivered the Opinion of the Court.
*166 The Montana State Highway Commission sought to condemn certain lands located near the eastern city limits of Helena, Montana, at the junction of U. S. 91 and U. S. ION. The land was shown to be necessary for the Interstate Highway System. The three commissioners appointed to assess the damages reported that the damages were in the sum of $57,500. The State appealed and the case was tried in November of 1961, resulting in a verdict for the defendant in the amount of $21,-915.51.
The defendants’ motion for a new trial was granted. The order granting the new trial does not recite the grounds therefor; the motion was made on all the statutory grounds, but from the brief of defendants we ascertain that there were three grounds specifically urged for thе new trial.
The first ground for a new trial was that the damages awarded were inadequate and not supported by the evidence. The second ground was that the trial court allowed, over hearsay objection, the State’s expert witness to refer to comрarable sales of land in the vicinity of the property taken and to relate the prices paid in those transactions. Finally, complaint was made in the motion for new trial asserting misconduct of counsel when the State brought out the fact of an independent appraisal of land contiguous to the land in issue.
The State appeals with a single specification of error that it was not proper for the trial court to grant the new trial, and that the various things respondents complained of below were not error.
The chief specification of error is that it was improper for the trial court to find error in the testimony of the expert witness as to comparable sales, and the prices paid therefor. One Hanink related the prices paid for the аcreage. In some instances he would seek out the other party to verify the price. The respondents objected to that line of questioning on the grounds of the hearsay and best evidence rules. The trial *167 judge overruled the objections, but apparently changed his mind later in granting the motion for a new trial.
We agree that the testimony is hearsay and not the best evidence in the technical sense. If the buyers and sellers were available for questioning during the field examination then it would seem that they should also be avаilable to be called as witnesses. There is authority that the testimony is not admissible. City and County of Denver v. Quick,
The various reasons given for admitting the comparable sales and prices paid is that with proper safeguards the testimony should be consistently reliable and much more time conserving than if all the parties had to be called.
In the Stewаrt case, supra, the Kentucky Court set forth the rule in the strict sense, but then decided not to follow it, stating:
“The more liberal rule, however, treats the hearsay I exclusion as inapplicable to expert witnesses, as thus stated by Judge Parker in United States v. 5139.5 Acres of Land, etc., 4 Cir., 1952,200 F.2d 659 , 662: ‘If the expert has made careful inquiry into the facts, he should *168 be allowed to give theDi as tbe basis of tbe opinion he has expressed. If be bad not made careful inquiry, tbis will be developed on cross examination and will weaken or destroy the value of thе opinion. Ordinarily evidence as to acts of tbis sort given by an expert as the basis of his opinion comes with a sufficient guaranty of trustworthiness to justify tbe relaxation of the hearsay and best evidence rules.’ ”
In California a recent statute expressly permits tbe testimony to be admitted. In an eminent domain proceeding a witness, otherwise qualified, may testify with respect to tbe value of tbe real property including tbe improvements situated thereon or tbe value of any interest in real property to be taken, and mаy testify on direct examination as to bis knowledge of tbe amount paid for comparable property or property interests. Cal.Civ.Code, § 1845.5, People ex rel. Dept. of Public Works v. Alexander, 212 C.A.2d 84,
It is interesting to note that all of these jurisdictions permitting tbe evidence allow it for tbe purposes of showing both tbe basis for tbe expert’s opinion and for tbe substantive value of tbe facts and prices recited.
Several of tbe Federal Courts leave the question of admissibility to tbe discretion of tbe trial judge. United States v. 5139.5 Acres of Land,
In Texas tbe tendency of tbe courts is to allow tbe testimony in for tbe “limited purpose” of showing the basis for the expert’s opinion, but not as substantive evidence of tbe prices paid. State v. Oakley,
Tbis is a ease of first impression in Montana. In Sweeney v. Montana Central Railway Co.,
In a more recent case, State Highway Comm’n v. Voyich,
In the instant case we are presented with a different issue in that the transactions were between private persons prior to any knowledge that there would be condemnation of lands in the area for highway purposes. However, from the evidentious viewpoint the two situations are similar, and we should now answer the question.
After a careful review of authorities we decide that the testimony of an expert as tо comparable sales and prices paid may be admissible notwithstanding a hearsay or best evidence objection.
In so approving this form of testimony we place a burden on the trial judge to test the
expertise
of the witness as to local real estate businеss. State Highway Comm’n v. Peterson,
All expert opinion is based on “hearsay” to a great extent and much of what is рresented by such witnesses is “secondary” evidence. We feel we can achieve speedy litigation and still preserve the truth by the rule adopted here. It must be shown that the witness is expert and that the sales are comparable and recent. With these safeguards plus the fact that *170 the witness has his professional reputation riding on his testimony we feel that the repugnancy of this line of testimony is reduced, if not eliminated altogether. The development of a value pattern by one experienced in the business аnd knowledgeable as to the area involved will best bring uniformity to the market value determination in the most efficient manner. The reasoning of the 5th District Court of Appeals in California is especially pertinent here:
“* * # From a practical standpoint, if eaсh person previously involved in effecting comparable sales should have to be called to the stand to establish the detailed facts of such sales, it would lengthen litigation of this kind out of all reason and would make it almost impossible for the State or defending landowners to make a proper showing as to valuation opinion within a reasonable time and at reasonable expense. Therefore, within proper limits, facts acquired by hearsay and used by a valuation expert in support of his conclusion that certain sales are comparable and therefore furnish support for his opinion concerning value have been customarily received in evidence in this state.” People ex rel. Dept. of Public Works v. Alexander, 212 C.A.2d 84, 95,27 Cal.Rptr. 720 , 725.
The Louisiana court was оf the opinion that recent, comparable sales of property in the vicinity is not only admissible but that it is the best criterion of market value. Recreation
&
Park Comm’n v. Parker,
The second ground urged in support of the order granting a new trial is a claimed inadequacy of the verdict. The state’s appraisal was in the area of $18,000.00 and all of the witnesses for the respondents testified that the value of the property was in the area of $95,000.00. The jury award was
*171
$21,000.00. A new trial on the grounds of excessiveness or inadequacy of a verdict is directed to the sufficiency of the evidence. Section 93-5603, R.C.M.1947; M.R.Civ.P., Rule 59; Flaherty v. Butte Electric Ry. Co.,
For a long while appellate courts were very reluctant to review an order granting or denying a motion for a new trial because it was felt that the discretion of the trial judge ought not be disturbed except for manifest abuse thereof.
Insofar as the granting of a new trial is concerned the Montana rule was recently reiterated in Estate of Cocanougher,
“In Herren v. Hawks,139 Mont. 440 ,365 P.2d 641 , 643, we considered the granting of new trials as follows:
“There are several well-established rules governing the granting of new trials. Innumerable cases in this stаte have laid down the general rule that the granting of a new trial is within the sound discretion of the trial court.
“In Garrison v. Trowbridge,119 Mont. 505 , 506, 507,177 P.2d 464 , 465, this court said:
“In considering the propriety of the court’s ruling in granting the new trial, we keep in mind that, the granting, or refusal to grant, a motion for a new trial lies within the sound discretion of the trial court, and its order thereon will be reversed only for manifest abuse of that discretion. * * *
“An order, general in its terms, granting a new trial, will be upheld if it can be sustained on any ground stated in the motion therefor, and such an order will not be set aside as readily as an order denying a new trial, since the latter ends the case, whereas the former merely restores the parties to the position they occupied before the trial. Maki v. Murray Hospital,91 Mont. 251 , 260,7 P.2d 228 , 230. To the same effect is Walsh v. Butte, Anaconda, etc., R. Co.109 Mont. 456 ,97 P.2d 325 . A stronger showing is required to justify interfer *172 ence with an order granting than one refusing a new trial. Collins v. Hodgson,5 Cal.App.2d 366 ,42 P.2d 700 .
“The reason for allowing such wide discretion in the trial court is aptly stated in Brennan v. Mayo,100 Mont. 439 , 448,50 P.2d 245 , 249, as follows:
“Here we are permitted to examine only the cold record, whereas the trial judge who granted the motion for a new trial was аfforded the opportunity of seeing the witnesses and of hearing them testify.. He was thus better able to understand and construe the testimony in the light of the surrounding circumstances.
“In this case the order granting the new trial did not specify on which ground it was made. The rule is established that if thе trial court acted within its sound discretion in ordering a new trial upon any ground stated in the motion, then its action will be upheld. Kynett v. New Mine Sapphire Syndicate,137 Mont. 82 ,350 P.2d 361 .”
We have more recently considered this matter in Campeau v. Lewis,
Our opinion in that case was that to grant a new trial in the face of “substantial evidence” in support of the verdict was an abuse of discretion, and we might well have termed it, as we do here, a manifest abuse of discretion.
It is true that in the instant case there was but one witness, Hanink, for the State as opposed to some six or more for the defendants. His expertise had been established and it is apрarent from the verdict that his testimony was not rebutted to *173 the satisfaction of the jury. Evidently the trial court was not satisfied that the award allowed by the jury was adequate.
The discretion of the trial judge ought not be and cannot be indiscriminately disturbed by the appellate сourt. There must be a showing of manifest abuse of discretion.
As we stated in State ex rel. Cline v. District Court,
The third ground for the new trial order as argued by respondents is an alleged incident of misсonduct of counsel. We find no merit in that charge.
Since the appellant has failed to show a manifest abuse of discretion in this cause by the action of the trial judge in granting a new trial, the appeal fails and such action is upheld.
The motion to strike and to dismiss are disregarded in view of the disposition of the appeal.
The order granting a new trial is affirmed.