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Rule 211. Either Party May Use Depositions (1971)

TEXT

Regardless of whether cross-questions have been propounded either party has the right to use the depositions on the trial.

Amended by order of July 21, 1970, eff. Jan. 1, 1971: The word "cross-questions" has been substituted for "cross-interrogatories."

ADVISORY OPINIONS

(No. 131) Question: Where a request is duly made under Rule 169, for the admission of the truth of different facts, and where the party of whom the request is made admits one of the facts and under oath denies another, may the latter upon the introduction in evidence of his admission introduce his own denial?

Answer: By way of explaining what we conceive to be the application of the question, we shall employ an illustration: In a collision case, request is made of plaintiff to admit that the cars came together at a street crossing and that, at the time, plaintiff was not sounding his horn. Plaintiff admits the first fact and under oath denies the second. If defendant in­troduces the admission, may plaintiff in­troduce the denial? We think not. This is not a deposition. Either party is allowed to use a deposition because Rule 211 says so. In view of this and of the evident danger that would arise in the present proceeding if a party's self-serving re­sponses could be used by him as evidence, we believe that the rule under investiga­tion would have been differently worded if such a result had been intended.

In expressing these views, we desire to exclude from consideration cases in which by reason of adroit wording of the re­quest, it is necessary to consider a denial in one response in order to bring out the full or true meaning of another response. There may, of course, be other excep­tions. For this reason we desire to con­fine our views to clear situations such as we have contemplated in the example which we have used in the previous paragraph.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).