*1 195 also Saunders 228. See App., Daggett, 257 S.W. v. Com. Chalk Humphries, Texas Civ. Grumpler 421; v. Brock, 30 Texas v. App., Lumpkin, Texas ref.); (wr. v. Shaw 215 2d 218 S.W. writ). (no App., 241 S.W. Civ. Bank, Roddy State rely upon v Citizens’ Defendants a simi- writ), (no where App., 2d 652 Civ. S.W. present trial. Unlike at the agreement excluded lar had been testi- further have however, would case, the defendant the cashier signed accommodate the notes were fied expecting examiner the latter was the bank because court The shape criticism. get to avoid the accounts wanted to ad- have proffered should been concluded special purpose. given that the notes were mitted to show holding unnecessary time whether at this It is to determine present record in the sound, “evidence” there is no is indicating because except any purpose the note was delivered give effect to the instrument. Herrick Roddy Allen v. case also cited The court in the dis.), (wr. Co., App. 249, 118 S.W. Hardware 55 Texas Civ. agreement we here such as have proposition that an support- equitable and that evidence defense constitutes valid parties ing vary the note because same does not or contradict complete intend that the instrument should be did not rejected were the Commis- final settlement. These conclusions Daggett, supra. The it decided v. sion of when Chalk holding case, expressly approved in the latter which was Bank, 2d Ennis 159 Texas 317 S.W. Hubacek v. State question represents in this state on now under con- the law judgment Appeals in so as it far reversed, judgment and is other- reforms the of the trial court affirmed, affirmed. of the trial court wise Opinion 1960. delivered October Company. Superior J. Insurance
Richard Decided June 1960. No. A-7354. Rehearing 12, 1960. Overruled October 415) (338 Series *2 Splaion, Splaiun, Jr., Lubbock, peti- & and J. H. Huff tioner. findings theory support jury On the no evidence to 217; Riggs, cited Fished Trav- Construction v. 2d Co. 778; Noble, elers Ins. Federal Co 129 S.W. Underwriters Stewart, 2d 1031. Exch. v. 109 S.W. Jordan, M. Hendricks Brown and Walter E. of Fort both respondent. Worth n opinion of the Court. delivered
Mr. Justice Griffin case, compensation jury found that In this workmen’s totally permanently His Griffiin been disabled. per (reduced by remittitur)
was found week $90 $80 compensation which entitled him to the maximum rate of $35 per jury week. The found that had not worked substan- tially employment. the whole of a at his It further found that there was no other worker of the same class who had done neighboring place. similar work the same or there- wages, statute, fore fixed his under the Texas as that rate which “just parties. would be and fair” to both Art. Subd. Vernon’s Annotated Statutes. The insurance car- voluntarily paid rier had Griffin on the basis that same rate ($35 per week) period prior for a of 22 weeks to the trial. *3 Judgment accordingly was entered for Griffin. judgment trial by the court was reversed the Court Appeals, of Civil 323 S.W. 2d It 607. held that the trial court permitting in wage erred the to fix Griffin’s rate under the “just and fair” section of the statute. Its reason was that before employee weekly wage entitled to have his ascertained “just under the statute, and fair” (Griffin) section of the he showing had the employee burden of that no other had done similar work substantially area for year the whole of a prior (Griffin’s) his injury. Appeals The Court of Civil found that there nowas evidence that employee there was no such other in the asserting area. holding Petitioner is here that of the Court was error. affirm We Appeals. Court of Civil Art. “average weekly wages.” defines Sub- division 1 substantially applies employee thereof to the who has worked for year immediately whole of preceding injury employment in the working in which he was at the time injury; of the applies injured Subdivision 2 employee to the who has not employment worked in such substantially the whole of year preceding injury, average his wage weekly shall be that employee of an of the same class has who worked sub- stantially year, the whole of the neighboring in the same or place, in the same or in a employment, similar and Subdivision applies only where subdivision 1 apply, and 2 do not in which average event wages weekly computed shall any man- ner may just seem and fair parties. to both It was under Subdivision 3 puted. “average wage” Griffin’s weekly was com- the determination application provisions
In the of these average wage employee, it is held weekly injured of an “* * * is on the claimant under the statute the burden compute impracticable by competent it is show evidence wage average weekly 1 or 2 before under either subsections * * * Employers’ .” resorted to American subsection 3 can be 26, (hold Singleton, App., Ins. 24 S. Co. v. Comm. W.2d Supreme ings expressly approved of the Commission Court.) Employers’ point Texas
A case in is the case of Robinson Ass’n., App., wr. ref. Ins. Civ. There the said: sup- did not correctly
“The trial held that the evidence court port jury finding employee the same class that no other substantially im- as worked the whole mediately preceding injury similar plaintiff’s in the same or neighboring employment place provided in the same or there was of the statute. There employee. contrary, plaintiff himself was not such an On the persons much as testified and named three who had worked as year prior type injury in which he to his in the same of work Although engaged. was This is not contradicted. wage concerning average weekly earned no evidence wages employees, showing there was no that such could ascertained, why have been reason it have would been impracticable compute plaintiff’s on the basis *4 wages employees. of the earned of such It one more compensation well settled that a show that his claimant must average wage weekly computed cannot under either Sub- division 1 or 2 of the statute can resort to before he Subdivision provides computation 3 which on a basis of his just employer. not and fair to both Plaintiff did claimant proof concerning (Citing cases). make such 2.” Subdivision undisputed plaintiff It that had not worked for whole year injury; preceding could therefore apply. plaintiff employee another testified that there was engaged year preceding in the same work who had worked the plaintiff’s injury. There is no case at bar plaintiff would indicate that he testified made mistake when unequivocally positively that he had located a man at O’Donnell, Texas, who had done same work year. except a full There was other evidence this record plaintiff’s testimony point. on this Plaintiff, testimony, in direct as follows: testified “Q. gin you at of that Is there men out there know through gin year? on worked whole gin. “A. Not that
“Q. Well, gins at in that of those area? Well, “A. I know one fellow at O’Donnell worked gin. at the around “Q. right, work, All does he do maintenance too? doing.
“A. like I Just “Q. Well, you then, through then I will ask does he work on work, through type ginning with the Fall and season? Yes, “A. sir.”
Plaintiff, counsel, on re-direct examination testified as follows: “Q. Speak you, you out now where he can hear because your him, Now, then, you,
have Mr. back to Mr. I Griffin. will ask
Griffin, you yourself? if made a search “A. I did. “Q. type just type What tell the what search — you made, you of search that trying and how went about it in wage-rate
to find a man that did work a full 12 months in the ginning cotton business? Well, practically them, I went to
“A. all of O’Donnell— s¡t ?K * every gins I went to in the area and tried to find —all
someone Well, worked whole 12 months. I went cafes—
“Q. go you Did places gin other besides the itself? Yes, “A. cafes, sir: I went places and a lots of where '200 so-forth, one and I
they trade, grocery stores, at found (Emphasis supplied). man that worked. doing “Q. All, right, Sir, the same particular area in that doing? type you of work were Yes,
“A. sir.” testimony was a man fact that there This is the direct nengaged same work that at plaintiff who had in the O’Donnell bee engaged gin prior a full 12 months in at a injury. the time of his 3, plaintiff may
In order that recover Subdivision plead 1, 8309, necessary plaintiff to Art. it Section is prove 1 or prevent Subdivi facts will either Subdivision only plaintiff applying. sion 2 of this This the Article from do, proved was workman failed to but he the fact that type employed work who was he a full 12 months at the same recover under Subdivi did. This would entitle wage rate pleading 2 if showed the sion and evidence average weekly such workman. There no evidence as to is that he had of such workman. This of Griffin’s engaged as he who found another workman in the same work judicial which worked for an entire is a admission bars recovery provision compensation “just and fair” under the 3, principle law is section Art. 8309. This Evidence, Ray, discussed in Texas Law Vol. McCormick & long p. and we find these words: “As * * * * * * admitted, unretracted, admission stands the fact purpose case, accepted the jury is as true the court and binding making it, party i.e., on the he cannot intro duce are evidence to contradict it.” A number of Texas cases proposition. cited to sustain this 799, II, party, in his
In 169 A.L.R. it is stated that “if negativing testimony, makes a material statement of fact right defense, testimony ap of action or and no more favorable regardless pears modify it, to contradict or is bound he ” * * * credibility. Further, 800-801, III, pp. the rule on its party deliberately stated to that “if a testifies to a concrete fact, estimate, opinion, appearance, not as a matter of infer ence, memory, or uncertain but as considered circumstance of case, adversary to hold him to it as an in entitled discussing judicial p. formal admission.” On point, it is stated that “the Texas rule on Court of Civil
201 rule, party adopted ‘A Appeals appears the Missouri to have of a fact plaintiff as the existence testifying own behalf in his thereby, makes correction absolutely unless he concluded mistake, oversight, misunderstand- giving some excuse of thereof ” citing ing, McMath Co. v. recollection.’ or lack definite 649, dism.; 1931, J. R. wr. Staten, App., 42 2d Texas Civ. S.W. 405, 1935, App., 2d King, 83 Texas Civ. S.W. Watkins Co. v. 1937, App., history; Conway, 108 no Texas Civ. writ Moore v. Wristen, 954, history; Texas v. Civ. S.W. 2d no writ Wristen dism.; Tipton, App., Kimmell v. 2d wr. 119 S.W. history. App., writ Texas Civ. S.W. Citing State, 1940, from Stanolind & Gas 136 Texas Oil Co.
5, 145 (1) : 2d 569 litigant positive
“The hold that admits authorities where facts, right recover, and definite if which true defeat his would and such or subsequently statements admissions are not modi- explained by mistaken, fied or as him so to show that he was although testifying good faith, conclusively in he is bound admission, successfully complain and cannot if the court against him,” citing directs verdict numerous authorities from Texas and other cases. petitioner upon relies Fidelity the case of United States Guaranty Carr, 1951, & App., Co. v. Civ. S.W. 2d general rule, wr. ref. That case states the it is but point in brought under the facts in this case. Mrs. Carr suit against U.S.F. & Co. to set whereby G. aside deed she conveyed city Floresville, certain town lots Texas. In testimony her stated, she had in reference deed exhibited her, paper signed” “that is not I “I don’t know how it got signature] signed there. I paper.” never [her that At another signature
time she had testified that attached to the deed says was hers. undisputed it was that she had signed deed, therefore, it would testimony treat her signed she had not as a deed mere mistake. lays The Carr case down five rules apply that must before a. party’s testimony against is conclusive Briefly, they him. are (1) upon during that the declaration relied was made the course judicial proceeding. gave of a in the course (cid:127) judicial proceeding, to-wit, of a the trial of his case in court. (2) contrary That the statement to an essential fact em- theory recovery braced defense per- asserted giving to the testimony. submitted As the cause was son plaintiff, it was essential jury rendered for prove plaintiff plead no other workmen there were engaged territory in the same work *7 proved person had so who months. Plaintiff there was another therefore, worked; he cannot under Subdivision recover 1. Art. section unequi-
(3) deliberate, clear and That the statement was as re- material fact vocal. Plaintiff twice testified to the same by this rule. quired giving (4) the declaration will That of conclusive effect to Legislature public provided policy. has consistent with The
be negative a and to must 2 in order Subdivisions public policy this the recover under 3. This is Legislature by the Plain- as declared State Courts. discharged burden; therefore, deny tiff to him relief has not public policy. is consistent with
(5) a fact That must such as relates to be may upon judgment opposing party a be based. which right making proper plaintiff’s depends upon his The to recover engaged proof had in the same work no other workman employed such for 12 months. In the absence of been proof, a full jury,
and under facts of case as submitted to judgment a the defendant would been to on have entitled upon by plaintiff; therefore, plaintiff’s case as trial made this testimony fits the rule. holding petitioner’s other
Our above makes discussion assignments unnecessary. Appeals of Civil is affirmed. Court 15, 1960.
Opinion delivered June Greenhill, joined by Smith, Justices Culver Mr. Justice dissenting. Norvell, holding majority of court is there was jury’s support no there was other to no evidence done similar work to area who Griffin’s employee,in the and that Griffin had failed substantially the whole compute wages impracticable to under it was prove that holding in That of the statute. turn is based 1 or Sections he had Griffin that stand a statement the witness from on person and had able diligent been search for such made find one in a person not neighboring town; could but ill he, person, brought the other to the trial because ju- as a treats this statement care. The doctor’s binding absolutely part on which was admission Griffin’s dicial effect, further, upon held him. The Court carrier voluntary payment by the insurance 22 weeks resulting jury’s verdict was bind- at the same rate from jury’s support the verdict ing on it and constituted opinion of “just and fair” of the statute. The under the majority point. last does not reach this The term used without “admission” has been discrimination sense, In one it is treated as a cover two distinct situations. act, “judiciary admission” and refers to a formal done judicial proceeding', dispenses pro of a course which with *8 duction of evidence and matter out of takes the the domain of proof jury required any so that nor neither court is to make regard in to it.1 The other in which sense “admission” generally receipt is is to in used authorize the of state party or pres ments ent conduct of a which is inconsistent with position. dispensing evidence, Instead of with admis these part form sions a excep evidence and admitted an are as hearsay Ray, tion rule. Texas McCormick & Law Evi of (2nd ed.) 1127; Wigmore dence (3rd 9 on Evidence ed.) seq. section 2588 et These and other authorities refer type “extra-judicial” to the latter of as “quasi- admission or “judicial binding. admission.” The other, being admission” is The part a evidence, but party necessarily not is on conclusive against whom is offered. Testimony given by party may a from the witness stand be a of such judicial nature and character as to constitute a ad- type testimony may literally mission. That of party swear a out finality of court. Because of the concept, which results from this it is rule this in state that “the rule doctrine should be applied Fidelity with Guaranty Company caution.” United (Texas App., 1951, refused), Carr 224; writ Civ. Wigmore (3rd ed.) 597, on Evidence section 2594a. The Carr says, Texas, ‘judicial case “In 'the term admission’ has been de- during proof’ fined as a of ‘waiver judicial pro- of course ceeding.” The case, inference is clear in the Carr on based state- Ray say by 1.—McCormick pleadings, this includes facts admitted agreed fact, stipulations. Ray, statements other 2 McCormick & .or (2nd ed.) 24, Law Evidence section 1127. giving-testimony Wigmore, simply party is if the merits knowledge, peculiarly own within his as a witness to events not regarded judicial admission. as a the statement will not be Rosario, v. Del quotes approval from Alamo Carr case with (which Wigmore) nature quotes : “It is of the F. 2d 328 from admission, by an act of waiver plainly intention an it be * * * giving ; purpose of particular, a statement made for the * * * testimony, testimony judicial . Mere admission not though by party, intention act it comes from something something giving selling A or testimony waiver. witness is not something. parties away, simply reporting but regarded evidence, admitted.” to a suit must not as facts be omitted.) (Quotation quotation marks within the Wigmore says: further
“* * * only party’s testimony If of a narrative consists observed, there participated he of events which he or which possibility may like other is an that he mistaken obvious be give situation, a different witness. In such a if other witnesses weighed occurrence, with version of the theirs, Wigmore must be statements.” 9 he will not concluded his own (3rd ed.) on Evidence section 2594a. think, I all circumstances of do not the facts and case, the statement from the stand he diligent similarly employed men made search for who were substantially one over in for O’Donnell, the whole of a and had found
Texas, judicial admission which took constitutes a right from the to determine the fact of whether there *9 person. inwas fact one such substantially the in the area for First, had not been Griffin knowledge his not have known of own year. He could aof whole substantially the whole at O'Donnell had worked man
that the year. of a gin. ample employed a There is at cotton Second, was Griffin gin seasonal; highly that operation of a the that evidence only four months. In lasts three or between ginning season
the employee seasons, an to do with is little for ginning there the repairs. gin except take care of it and make to regard to the testimony that, general, people of Griffin’s substance gin year. all The substance aat not work do charge operation gin of the Dempsey was who of Mr. gin highly at the was the work seasonal. effect: the same towas very to find that it unusual Griffin further employee testified would locating gin year; a a that at the whole of who worked thing gin person year all be a at a would hard who worked diligent try do, to that search to to find he’d made person. regard (his “ju- search The statement of with to his Griffin simply admission”) dicial of the fact that he had was recital O’Donnell, Texas; person he found one such at was ill. but couldn’t come reporting simply to the fying trial because he He was or testi- testify, what he not if a witness to found. Griffin did knew, person days indeed per year; this 200 or he whether worked was; particular job
what it whether was of main- otherwise; repair only wage tenance or what scale circumstances, was. the it was Under not conclusive that some employee perform of the same class did similar work that to substantially of Griffin the whole of a in the same vicinity finding support and that was jury’s some evidence to employee. sufficiency that there was no such that pass upon. evidence is the Court I think there is other evidence that the correct rate of com pensation carrier, was awarded Griffin. The insurance in its pleadings, (admitted) paid stated per that it week $35 figure prior for 22 trial. weeks That is the same which re sulted plead from the this case. It did not fraud, mistake, payments that tion, misrepresenta were made compromise attempt controversy. or in an It is true paid by held amount insurer was insurer; i.e., not on the judicial conclusive was admission in strictest sense. Southern Underwriters v. School (1942), 138 Texas 991.2 There evi craft support jury’s finding dence in that case to of a lower upon which was based. But the case Schoolcraft say voluntary payment wages did not that the particular at a rate was not some evidence it was a correct rate. It was Harper in Traders Company held & (Texas General Insurance App. refused), Civ. writ 140 S.W. 2d that: payments “In absence com- [of pensation injured employee] insurance carrier upon misrepresentation appellee’s were made mistake or as to wage rate, he or that was entitled to a smaller [the workman’s] *10 wage rate, compensation appellant’s we think that in admission Employers’ Ass’n, (1953, Texas Ins. 257 in Davis v. S.W. 2d 755 2.—Followed no (1958, Lucky, refused, writ), n.r.e.) 308 2d 273 v. S.W. writ and in Brooks 206 at compensation for 18 weeks
paying appellee workman] [the judgment support per sufficient week is the rate of $13.85 awarding that rate.” (1930, Eppler, re- Surety writ Similarly, v. Southern Co. wage fixed under rate was
fused) 2d where 26 S.W. statute, and “just and fair” section week, per payments of had made four carrier $20 that, un- through Judge “It does seem McClendon held of an admis- in the nature this fact as reasonable to construe wage.” showing prima facie of purpose at a least of sion opinions by Harper the Courts opinion in case cited fixed, wage rate Appeals hold that where which of Civil (the statute fixed, 3 of the attempted under section to be or “just of com section), payment the carrier and fair” particular “in the period a amount weeks of pensation for a of showing did so as a result of that it of carrier] absence [the support a for that misrepresentation will or mistake” v. example General Ins. Co. Slusser Traders & amount. See 598; dismissed, judgment), 2d (1937, correct 110 S.W. writ (1936, writ), no Fidelity Casualty York v. Ener Co. New of was, voluntary payment held that 2d which 197 S.W. effect, support judicial the com admission which would in pensation computing the three methods of it. of rate (1939, Erwin Underwriters v. To the same effect Southern writ), 134 2d 720. S.W. Harper decision, likewise number of were After that such opinions which hold the Courts of Civil fraud, voluntary misrepresentation, payment, the absence findings. Maryland mistake, support jury’s Cas- or ualty would dismissed, (1941, judgment), correct Co. v. Romero writ Employers 1096; v. Hodnett 2d Texas Ins. Ass’n 146 S.W. 301; Employer’s refused, n.r.e.), Cas- (1949, 2d writ S.W. 322; ualty (1949, refused, n.r.e.), Co. v. 2d Smith writ S.W. Employers ref., n.r.e.) (1954, Grimes writ Texas v. 268 S.W. writ Employers ref., 786; Ewing, (1956, Ins. Assn. v. 2d n.r.e.), 880; Traders and Ins. Co. 2d General Smith S.W. ref., n.r.e.) (1958, at writ similar cases. authorities, appear these it would rule when Under be the employee voluntarily pays particular at a carrier rate over fraud, period time, pleading3 proof and the is no pat - pleading here out the case as to because 3.—The lack Sbjection. witho"' went Griffin’s
207 compromise attempt misrepresentation to accident, or mistake, the that matter, some evidence payment constitutes such the amount paid one. is a correct sup- evidenec I, therefore, some that there was conclude “just finding under
port jury’s of section should trial court portion that of the and fair” and affirmed. be 15,1960.
Opinion June delivered dissenting. Smith,
Mr. Justice Employers’ the case The court cites of Robinson v. ref., Ass’n, App. (1953), wr. Ins. 261 S.W. Texas Civ. holding principal authority supporting its as its Court correctly sup Appeals no evidence held that there was of Civil finding Special porting the answer to Issue Number of 13.1 finding has as led to the of “no evidence” issue unequivocally testified conclusion since Griffin further worked, he knew one man con- who judicial recovery precluding under
stitutes 8309, admission Article Vernon’s Annotated Subdivision Statutes Texas. The and reversed remanded trial, case to trial court for a this court has af- new phase firmed such action. This case hereinafter will be discussed. holding
My Griffin, petitioner, will reasons for with now stated: recovery permitting trial The action of the court in 8309, supra, harmony Article with the provisions of said Article. The evidence when considered in the light supports implied of the statutes of the trial average impracticable compute weekly court wages under 1 and of the Article. Subdivision 3 Subdivisions reads as follows: preponderance you find of the there was 1.—“Do from one working substantially employees class the for same whole of
more injury, any, year immediately preceding plaintiff’s if the date of the same employment neigh- employer, in the same or a in the same or a or another similar boring place? employee Another had not worked.” “ANSWER: em- the time of the the shortness of reason of “When engaged employee, employees
ployment or other length of time manner and for the class of work in the same good or other specified in the above Subsections average compute impracticable sufficient reasons it *12 wages computed by the weekly defined, as it shall be above just may and fair to both in manner which seem Board parties.” it was based of the trial court recites that “findings stipulations parties
upon the and the implied findings the entered of record in this cause and the of * * *” (Emphasis added.) Court. important supports an im- It is ascertain if the evidence good shown that plied and sufficient reasons were average weekly impracticable compute would render wages the 8309, supra. New under Subdivision Article Webster’s Dictionary “impracticable” as International meaning: defines the word of; “Incapable being impractic- of used as or availed road; impracticable method.” able man It true Griffin testified that he had found one requested man to who had worked 12 months and that he testify appear undisputed in the trial of this case. It is also of this man was of ill- unavailable because objection testified without that the man ill and ness. Griffin was under the care of doctor. He further testified that he had made Lamesa, Tahoka, O’Donnell, Woodrow, a search for others places and other found who had worked the whole in the area and that no other worker could be preceding next injury. proof made, After date of this was testified: Griffin * * * “Q. right, words, pur- All now then in other clarifying record, you pose yourself? did not work a full 12 months “A. sir. No
“Q. And, you man, making cannot find another after diligent search, type that did work in the same or similar you doing you were at injured, work that correct? the time were right.”
“A. That’s present also attorneys petitioner in the case were for Robinson, attorneys petitioner, case of Robinson v. Ass’n., present supra. Employers’ In the trial of the Ins. case, they case wherein Robin- them Robinson before by court, application court. This had been refused son’s refusing application adopted the fol- for writ of error lowing portion Appeals’ opinion its own: of the Court of Civil concerning average
“Although was there no weekly wage showing employees, toas such no earned why wages such could not have been ascertained or that any impracticable plain- compute reason have it would been wages or more rate on basis earned one tiffs employees.” (Emphasis added.) discharged establishing That his burden of reason proof undisputed. for the absence of as to 2 is No objection charge requested issue was made *13 case, supra, issue. to failure to submit such In Robinson trial court found that Robinson had failed to establish wage impracticable average compute weekly it was his under was, therefore, 2 of the Subdivision statute not entitled to wage computed his rate have under and that Subdivision finding jury’s disregarded. under Subdivision 3 should be finding specific plaintiff The the trial court “that was by legal competent failed to establish evidence that it was average impracticable compute weekly wage under Sub- Appeals of Article 8309.” Court of Civil stated that “this judgment the basis of the court’s non opinion subject obstante veredicto and in our complaint urged by appellant.” not to the It Compensation is well settled that the Workmen’s Act liberally injured employee. be should construed favor of the Clearly, Legislature malting meant to excuse a from proof given under 2 if valid reason Subdivision should be why produced thereby rendering could be impracticable compute average weekly wage rate under reasoning gives provisions 2. This Subdivision effect to all supra. Article of the trial necessary court should affirmed unless it is to return the case point the Court of to decide to to Issue No. 13 that the answer against great weight was preponder- position I ance the evidence. take the that such action is not my view, necessary. it can Under be admitted that one man substantially year, the whole of the petitioner worked but still provi- computed entitled to have 8309. Article of Subdivision
sions 15,1960. Opinion June delivered Rehearing 12,1960. overruled October County Et Al. Al R. Webb Et v. C.
Archer 22, 1960. Decided June No. A-7490.
Rehearing 1960. Overruled October 435) (338 Series