Lynn v. Haecker

On Motion for Rehearing

Upon rehearing, it is insisted that we erred in refusing to hold that judgment should have gone against Mrs. Haecker on an asserted “judicial admission.” Particular complaint is made of the fact that in our opinion only one question propounded to Mrs. Haecker is set forth together with her answer thereto. Appellant reminds us that three pages of the Q and A are set forth in her brief. While we attempted to shorten the opinion as much as possible, as enjoined by Rule 452, Texas Rules of Civil Procedure, we do not wish to leave an erroneous impression of the record.

In her deposition Mrs. Haecker testified that at the time the deeds in question were executed (1943), Mrs. Lynn placed a great deal of confidence in her and “relied on her just like a daughter” and trusted her in everything she did; that Mrs. Lynn had complete confidence in her and she was entrusted with various business affairs. The Q. and A. as set forth in appellant’s brief is as follows :

“Q. And you and Mrs. Lynn had discussed the making of a will? A. That is right.
“Q. And she said she would make a will to you? A. That is right. * * *
“Q. You told Senator Ridgeway you wanted a deed prepared ? A. That is right. * * *
“Q. Then you are more or less considering these deeds as a will? A. That is correct. * * *
“Q. And did you not tell her that these instruments were just wills and that you would not have the property until she died? A. That is correct.
“Q. You told her you could not get the property until she died and the instruments she signed were just like a will? A. She asked me if they were and I did.
“Q. You did tell your Aunt Christine that these instruments she signed in June, 1943, were just like a will and you would not claim the property until she died? A. That is correct and I have not done it either.
“Q. Did you ever tell your Aunt Christine that these instruments she signed in June, 1943, were deeds to you to this property right now? A. I do not ever recall I did.
“Q. You do not recall that you did? A. No.”

Tire above questions and answers represent selections taken from about seven pages of the statement of facts.

Upon the trial of the case, Mrs. Haecker testified that Mrs. Lynn had executed the deeds before she informed the witness of that fact. The testimony was as follows: “About the year 1943 she (Mrs. Lynn) was sick and one Sunday my husband and I went out there and she told me she had made a will and deed for me. * * * She told me that she had made a will and a deed for me. Of course, at that time I didn’t know the difference between a will and deed and she told me everything she had was for me and for me only.”

From the versions given by Mrs. Haecker, the most that can be said is that the two were conflicting in certain particulars, that is, she said one thing upon her cross-examination when her deposition was taken and said another thing upon her direct examination when she appeared as a witness upon the trial. Whether or not a jury could reconcile the apparently conflicting statements is somewhat beside the point. It could properly credit either version. It is apparent that the statement relied upon as a “judicial admission” was not clear and unequivocal. “If the statement’ merely contradicts some other portion of the party’s testimony, conclusive effect can*543not be given thereto, but a fact issue is presented for the determination of the jury or the judge sitting without a jury as in the case of an ordinary witness. Leonard v. Smith, Tex.Civ.App., 186 S.W.2d 284; New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620.” United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, 229, wr. ref.

Appellant’s motion for rehearing is overruled.