ON REHEARING
In an earnest motion for rehearing appellant cites us to the holdings in the recent cases of State of Texas v. Williams, Tex.Civ.App., 357 S.W.2d 799 and State of Texas v. Curtis, Tex.Civ.App., 361 S.W.2d 448. We are also aware of the holding of our Supreme Court in State of Texas v. Willey et ux, 360 S.W.2d 524.
In our opinion the holdings in the above named cases are not in point with the case-now before us and should not determine our decision here.
In the Williams case the Court of Civil' Appeals at Texarkana speaking through Chief Justice Chadick, first affirmed the trial court’s judgment o,n the ground that the cumulative evidence properly admitted swayed the balance in favor of harmless error. However, on rehearing it was made plain that documentary evidence which had been thought to be a contract of sale, was merely an option contract and should not have been admitted in evidence! This new development, according to the Court, tilted the scales in favor of holding that the admission of incompetent evidence: was harmful.
*407•It should be observed, too, that of the three witnesses, who testified-in the Williams case on behalf of appellee the qualifications of only one were established as an expert on land values. Another witness, the land owner, was qualified to give his opinion of the value of his land, but his qualifications as an expert were not shown. No effort had even been made to ■qualify the third witness as an expert. In these and other important particulars the material facts differ from the controlling facts in this case.
In the Curtis case, opinion by Justice Pope, in behalf of the San Antonio Court of Civil Appeals, it is expressly stated that the first three points on appeal relate to the nature of comparable sales “when used as proof of value in condemnation cases.” The situation here is quite different. As we pointed out in our original opinion, the challenged testimony of comparable sales in this case was given by a qualified expert, not as independent substantive evidence of value, but merely to give an account of the basis upon which the expert in part founded his opinion. The situation is clearly shown by the testimony which was elicited after the witness Eastus, as an expert, had stated his opinion of the values of the condemned property. Moreover, the facts in the Curtis case, though they are not set out in detail, evidently did not pre- , sent the problem of harmless error, as do the facts in our case.
In the Willey case our Supreme Court : was concerned with the admission in evidence of testimony of sales of lots in subdivided areas as being comparable to undeveloped acreage. This evidence presented . by a witness named Davis, could not be considered as harmless error, for as the Supreme Court said, “it is no wonder that the jury found the value of the condemned land to be exactly, to the dollar, what Davis said it was, $14,160.00.”
■ : In the case now before us appellee in- -■ sists that the four challenged sales are properly comparable sales. Appellee’s wit'ness Eastus, a highly qualified expert, testified that they were. In rebuttal appellant produced a witness, Joseph Smith, who testified that of the thirteen comparable sales about which Eastus testified, four were not comparable. In the face of this conflict in the testimony, appellee contends that the trial judge did not abuse his discretion in admitting the testimony of Eastus and in refusing to strike it after Smith had testified.
Without retreating from our position holding that the challenged testimony was admissible under the circumstances, we are firmly convinced that the error in admitting it, if it was error, was harmless. We so hold for these reasons:
(1) Eastus on behalf of appellee testified as to thirteen alleged comparable sales. Only four of these sales were challenged by the State as to their comparability. Joseph Smith in behalf of appellant testified to sixteen alleged comparable sales. Thus there was an abundantly sufficient cu-mulation of competent evidence of comparable sales to tip the scales in favor of harmless error.
(2) As we pointed out in our original opinion the jury plainly did not accept and rely on Eastus’ testimony. He testified to a total damage by the taking of $36,-23S.00. The jury allowed only $23,500.00. Appellee’s witness Doak testified to a total damage of $46,729.00. Obviously the jury did not accept the valuation put on the property by appellee’s witnesses. In this as in other particulars the instant case differs from the Willey case recently decided by our Supreme Court.
(3) It is easily understandable that Eastus’ testimony in regard to the four disputed comparable sales may well have helped rather than hurt appellant. If, as appellant claims, the four sales were not comparable, Eastus laid himself open to attack and exposure by saying they were comparable. His qualification as an expert on real estate values was well established in the evidence. His opinion as to values *408was undoubtedly admissible. Appellee could have discontinued further direct examination immediately after Eastus had given his opinion as to value. But appel-lee elected to have Eastus tell of alleged comparable sales as part of the basis for his opinion. The trial lasted ten days. Appellant had an opportunity to have, and did have its expert Joseph Smith, check the alleged comparable sales of Eastus. In rebuttal he testified at length and in great detail, pointing out wherein he considered the four questioned sales not comparable.
We have carefully considered appellant’s motion for rehearing. In the light of the record as a whole we overrule the motion.