Cook v. Beermann

276 N.W.2d 84, 202 Neb. 447, 1979 Neb. LEXIS 1037

Opinions

White, J.,

dissenting.

Assuming that the majority is correct in its determination and its characterization that the statement in Beermann’s pleading was not a judicial admission, the majority have come to an improper result. As both the majority and the opinion on rehearing point out, the pleading which contained the admission was not admitted into evidence by the trial court; it was therefore not considered. Such evidence is acknowledged by all parties to be relevant and bears directly on the issue in controversy. Logic would require that the case be remanded for a new trial in which the admittedly admissible evidence would be considered by the trier of fact in arriving at his judgment. Instead, the majority votes to affirm, both condemning the refusal of the trial court to admit the evidence and agreeing with it on the result. I would reverse and remand for new trial.

Boslaugh, J., joins in this dissent.