Proffitt v. Providence Washington Ins. Co.

On Appellee’s Motion for Rehearing.

The appellee in his motion for rehearing urges that we were in error in holding that there was a splash constituting a collision and a slipping into a chughole or off the causeway constituting an upset, and in declining to hold that under the evidence the credibility of appellant’s witness was a question of fact; and further in declining to hold that there was some 'evidence to support the presumed finding in support of the trial court’s judgment of an independent intervening rise of the floodwaters, changing the course of events and destroying the car.

Our attention is directed to the failure of the pleadings of plaintiff to allege a “splash” or a “chughole,” or that a wheel was driven off or pulled off of the causeway.

The defendant filed a motion to exclude the evidence oif (1) the driving or pulling of the automobile into a hole, (2) the driving or pulling of a wheel off of the causeway, and of other happenings, because none were pleaded. The plaintiff sought to file an amended pleading intended to conform to the evidence. On February 10, 1950, the defendant moved to withdraw its motion to exclude the evidence, and then the court denied the plaintiff leave to amend.

■We believe that the issues were tried by consent of the parties and were treated in all respects as if they had been raised by the pleading. Rule 67, Texas Rules of Civil Procedure.

With reference to the testimony given by the son of the appellant, and the only witness to testify in the case, as not being credible because of his age (17 years) and relationship to plaintiff, we believe that his testimony, which was not contradicted by any other witness or by attendant circumstances and was clear and direct, and was free from circumstances tending to cast suspicion thereon, is taken as true as a matter of law.

The defendant could have offered testimony concerning the chughole, or absence .of one. The men operating the wrecker were doubtless available to testify as to conditions, and the other boy who was a passenger in the car, all could have been used to contradict the testimony given by the witness, if the facts were not correctly related. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904.

The motion for rehearing is overruled.

Overruled.