Hinrichs v. Texas & N. O. R.

On Motion for Rehearing.

Appellee, railway company, has filed a vigorous motion for rehearing, in which it complains of our order reversing and remanding this case. The court pays itself no compliment when it becomes necessary to explain what is meant by language used in an opinion. Counsel has evidently misconstrued our holding and we cannot let their contentions go unchallenged. It is asserted that we erred in holding: “That the statements of appellant’s wife made to appellee’s claim agent, McNamara, relating to the facts of the accident, should not have been received in evidence by the trial court.”

The quoted statement being a part of one of the errors complained of in the opinion, cannot be supported by the record. The trial court did permit appellee to prove by McNamara what he claims Mrs. Hin-*863richs said about the accident; this was proper for it tended to contradict her testimony given upon the trial. But it was the introduction in evidence by appellee of the statement written by McNamara that we held to be improper.

As a part of the assigned error to this court it is stated in the motion that, “it further appears from the undisputed evidence that a long discussion took place in the presence of both the appellant and his wife and that during the discussion the claim agent wrote down what appellant’s wife told him and the claim agent testified that after reading the statement over to both of them the appellant’s wife admitted that it was left with her to typewrite and return to appellee, the truth of which statement she did not challenge or deny * * * and where the appellant’s wife did not deny on the witness stand that she had told the claim agent the matters he wrote down * * *

It is argued that the trial court committed no error in admitting the writing in evidence, and that we were in error in holding that it did so. The statement of facts before us consists of two large volumes and much of it is taken up with a meticulous cross examination of Mrs. Hin-richs by inquiries about practically every expression found in the statement. She denied making many of the material and damaging ones and said they were not true as facts; pressed by the examiner in some instances, she used rather strong language in her denials. She repeatedly said she declined to sign the statement because it was not true, or was only half true. In such circumstances the record does not support the quoted language of counsel where it is stated that the undisputed evidence shows so and so, and that Mrs. Hinrichs did not deny on the stand that she had told the claim agent the matters he wrote down, nor does it support counsel’s assertions to the effect that the undisputed evidence shows that the claim agent wrote down what appellant’s wife told him. As we construe the testimony of Mrs. Hinrichs, she denied having told the claim agent several of the material matters found in the written statement, and also denied that they were true.

It may be conceded that she recognized the written statement when presented to her upon the trial, but she insisted that it was the same one that she had refused to sign. Under such conditions as presented here, it cannot be said that the written statement was, as a matter of fact and law, that of the witness Mrs. Hinrichs, by which she could be impeached or contradicted upon the trial when she had testified to a state of facts different from that contained in the written statement.

It is contended that we are in conflict with the holdings in Kampmann v. Cross, Tex.Civ.App., 194 S.W. 437, writ refused; Faseler v. Kothman, Tex.Civ.App., 70 S.W. 321; and Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189. We have carefully studied those cases and under the facts there discussed, a distinction is apparent from the facts before us in the instant case. With all deference due to counsel’s earnest insistence, we believe we have properly disposed of the controlling issue involved. The motion is therefore overruled.