Opinion

Traders & General Ins. Co. v. Wright

  • 95 S.W.2d 753
  • 1936 Tex. App. LEXIS 697
Court
Court of Appeals of Texas
Filed
Apr 10, 1936
Status
Published
Author
Grissom
On the bench
Funderburk, Grissom
Cited by
43 cases
Authority
More cited than 2.2%

The opinion

On Motion for Rehearing.

GRISSOM, Justice.

In the majority opinion the following language was used: “When it became known that said doctor’s testimony was based, at least in part, upon the matters stated, defendant moved the court to withdraw the testimony based thereon from the jury.” That statement is withdrawn. That Dr. Parmley’s opinion was based in part on hearsay was disclosed on his cross-examination by appellant’s counsel. No motion to strike such testimony was then made. Thereafter the redirect examination of said witness and the examination of three other witnesses, Fisher, Wright, and Allredge, occurred, and the plaintiff announced that he rested his case before appellant moved to strike the testimony of Dr. Parmley as to such opinion. Under this situation the court was correct in overruling the motion to strike. “Inexcusable delay in moving to strike out objectionable evidence is ground for denying the motion. Ordinarily a motion to strike out objectionable testimony must be made at the time the testimony is given, if the objection to the testimony is then apparent. If the objection is not then apparent it should be made immediately on the impropriety of the testimony becoming apparent, as where the direct examination does not show the incompetency of the testimony, or the ground for the exclusion of the evidence appears for the first time on cross-examination. It has been held that the court may properly overrule the motion if not made until after the witness has fully concluded his testimony, or has been excused from the stand, or discharged from attendance on the trial; after cross-examination of the witness; after other witnesses have been examined; at the close of the party’s case * * *.” 64 C.J. p. 215, § 224; LaFeria Water Imp. Dist. v. Simpson (Tex.Civ.App.) 290 S.W. 832 ; Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 77 , 12 S.W. 810, 811 . (On this point all members of the court are in accord.)

In the case of Texas Emp. Ins. Ass’n v. McNorton (Tex.Civ.App.) 92 S.W.(2d) 562 , cited by appellee on motion for rehearing as sustaining his contention that we were in error in holding that the conditional submission of the issue of partial incapacity was error, a writ of error has been granted because it is in conflict with the

*767

authorities relied upon and cited in the majority opinion.

The original opinion is corrected as above, and the motion for rehearing is otherwise overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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