The party relying on his opponent's pleadings as judicial admissions of fact, however, must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted. Starks v. City of Houston, 448 S.W.2d 698 (Tex.Civ.App. — Houston [1st Dist.] 1969, writ ref'd n.r.e.); Restelle v. Williford, 364 S.W.2d 444 (Tex.Civ.App. — Beaumont 1963, writ ref'd n.r.e.); Dallas Transit Co. v. Young, 370 S.W.2d 6 (Tex.Civ.App. — Dallas 1963, writ ref'd n.r.e.). Although the substitute trustee's deed was invalid as between TWI and Vann Musick, it did give the appearance of good title in TWI.
However, there is a well recognized rule, which was not applicable in the Verry case, that a party is not bound by his own testimony on matters which constitute an estimate or an opinion. Coldiron v. Mattick, 488 S.W.2d 362 (Ky. 1972); Vaeth v. Gegg, 486 S.W.2d 625 (Mo. 1972); Starks v. City of Houston, 448 S.W.2d 698 (Tex.Civ.App. 1969); Hanson v. Darby, 100 Ill. App.2d 339, 241 N.E.2d 110 (1968); Hilburn v. Brodhead, 79 N.M. 460, 444 P.2d 971 (1968); Saunders v. Bulluck, 208 Va. 551, 159 S.E.2d 820 (1968). We believe the foregoing rule is well reasoned, and, therefore, we shall apply that rule to the situation in the instant case.
Here, Ms. Halderman cannot maintain that Ms. Ivy's attorney's statements were a judicial admission that the tractor was on the farm on the day Mr. Boyd died, when evidence contrary to the purported admission was heard without objection. See id.; Starks v. City of Houston, 448 S.W.2d 698, 700 (Tex. App-Houston [1st Dist] 1969, writ ref d n.r.e.) ("even if counsel's statement had amounted to a judicial admission, it was waived when evidence to the contrary was heard").
We do not view the statements made in the State's counterclaim and summary judgment motion as constituting a judicial admission so as to conclusively establish that the Attorney General and the Council had misinterpreted the Code and taken wrongful action based on that interpretation. See Starks v. Houston, 448 S.W.2d 698, 699-700 (Tex. Civ. App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.). The pleadings request an assessment of $10,000 per violation and the motion says the State seeks a maximum of that amount and is not seeking a greater amount.
Jess cites cases for the proposition that a judicial admission is waived if the opposing party introduces evidence contrary to the admission. See Industrial Disposal Supply Company, Inc. v. Perryman Brothers Trash Service, Inc., 664 S.W.2d 756, 763-64 (Tex.App. — San Antonio 1983, writ ref'd n.r.e.); Wilkins v. Cook, 454 S.W.2d 769, 770-71 (Tex.Civ.App.-Eastland 1970, writ ref'd n.r.e.); Starks v. City of Houston, 448 S.W.2d 698, 699-700 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref d n.r.e.); Dallas Transit Company v. Young, 370 S.W.2d 6, 10-11 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.); Restelle v. Williford, 364 S.W.2d 444, 446 (Tex.Civ.App.-Beaumont 1963, writ ref'd n.r.e.). He contends that, when Vicky introduced the warranty deed, closing statement, and release of lien into evidence, she waived any judicial admission that he made because those pieces of evidence establish that the Vinsons deeded the property as a joint gift to both him and Vicky. The record actually shows that Jess introduced the warranty deed into evidence as Respondent's Exhibit No. 1.
Applying the proper meaning of possession and control, it is apparent that rather than making statements of fact fixing the physical possession and control of the child, both counsel merely were expressing the opinion or conclusion that the legal right of possession awarded Dick as the managing conservator by the 1981 modification order governed the possession and control of the child addressed by section 14.10(b)(2). Since a counsel's opinion or conclusion does not have the force and effect of a judicial admission, Starks v. City of Houston, 448 S.W.2d 698, 699-700 (Tex.Civ.App. — Houston [1st Dist.] 1969, writ ref'd n.r.e.), the comment by Jeannette's counsel concerning her lack of legal possession does not foreclose her contention that the child has not been out of her physical possession and control for at least six months immediately preceding the filing of her application for the writ of habeas corpus. Moreover, Dick is in no position to assert that Jeannette's contention is foreclosed by her counsel's representation to the contrary, for he gave the testimony initially showing the extent of her possession and control of the child during the existence of the 1981 modification order.
Such a conclusion or opinion by an attorney will not constitute a judicial admission. Starks v. City of Houston, 448 S.W.2d 698, 699 (Tex.Civ.App. Houston (1st Dist.) 1969, writ ref'd n. r. e); Hedge v. Bryan, 425 S.W.2d 866 (Tex.Civ.App. Tyler 1968, writ ref'd n. r. e.). Defendants also point out a statement made by Mr. Abernethy who also represented some of the plaintiffs:
The jury came closest to agreeing with the valuations of the 36.774-acre strip given by Mr. T. A. Waterman, a real estate appraiser and broker, both before and after that strip was subjected to the easement, but in both instances the jury's valuation was higher than his. Its findings were that the pre-condemnation market value of the strip was approximately $52. per acre higher than his appraisal and that its post-condemnation market value was approximately $124, higher than his appraisal. Mr. Waterman was called as a witness by the condemnor, but the general rule is that a party does not vouch for the accuracy of opinion testimony and is not bound by what an expert says. Gulf, Colorado Santa Fe Ry. Co. v. Abbey, 313 S.W.2d 108 (Tex.Civ.App. 1958, no writ); Brumit v. Cokins, 281 S.W.2d 154 (Tex.Civ.App. 1955, writ ref. n.r.e.); Starks v. City of Houston, 448 S.W.2d 698 (Tex.Civ.App. 1969, 1969, writ ref. n.r.e.). As the Texas Supreme Court stated in Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (1950), all opinion is at best something of a speculation and the question of market value is peculiarly one for the fact finding body, subject to the control of the court in the manner indicated in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936).
The question of judicial admission, if any, was thereby waived. Dallas Transit Co. v. Young, supra; Restelle v. Williford, supra; Starks v. City of Houston, 448 S.W.2d 698 (Tex.Civ. App., Houston 1st 1969, wr. ref. n.r.e.). The jury found, in response to special issues submitted to them, that (a) the contracts were executed by Price on behalf of the respective corporations owning the hotels and by their express authority as conferred upon him by Carter; (b) the labor and materials were requested by Price for and on behalf of such corporations and by their express authority as conferred upon him by Carter; (c) Carter did not disclose to plaintiff that he was acting in the capacity of a representative of either W K D C, Inc. or of G J W Investments, Inc.; (d) Carter conducted himself in such a manner in his dealings with plaintiff as would lead an ordinary businessman, when viewed from the position of plaintiff, to believe that Price possessed sufficient authority from Carter to execute the contracts and to order the labor and materials; (e) plaintiff believed that Price had sufficient authority to execute the contracts and to order the materials and labor, and that he relied on such belief to his det