The opinion
Motion for Rehearing and Motion for Supplemental Findings of Fact.
Appellants, in their extended motion for rehearing, in 54 grounds, reiterate formally, in haec verba, assignments of error originally relied upon by them for a reversal of this judgment; this court has, however, carefully reconsidered its former judgment and opinion herein, and, being unconvinced of error in that determination, is constrained to adhere to it; as to the insufficiency of appellants’ assignments to support their first proposition, see 3 Tex. Jur., page 858, and appended cases. Appellants’ motion will, therefore, be overruled.
The appellee, in turn, upon the rehearing, presented a motion upon his part asking the court for a finding of additional facts, claimed by him to indisputably appear from the record, and to materially bear upon its prior holding that, had appellants’ first proposition, challenging the testimony elicited on cross-examination from their expert witness, in response to the 15 questions propounded to him, been considered, it could not be sustained; the claimed facts as stated by him were as follows:
“(a) Plaintiff’s doctor had already testified that he had a ‘compression fracture’, and the expert being cross-examined admitted there was a type of ‘compression fracture’ known as ‘Kummel’s disease’, which was really a traumatic situation.
“(b) Defendant’s experts, including the one being cross-examined, had previously testified that plaintiff suffered from a herniated nucleus or ‘Schmarl’s Node’, which some say is a ‘congenital weakness’, and one of such experts swore sometimes followed ‘severe trauma’.”
On examination of the record, it is found to verify the quoted statement. It is, therefore, adopted as a finding by this court that such facts appear in the record.
This court’s attention has also by him been called to the fact that, subsequently to the objections made by appellants to the 15 cross-questions referred to supra, the same expert was again cross-examined by the ap-pellee on substantially the same subject matter as the 15 questions had to do with, and, in response thereto, he testified substantially as he had before in answering such 15 questions, to which later testimony no objection was made by appellants.
This situation is reflected by the record, pages 422 to 424, inclusive.
It follows that the appellee’s motion should be granted; it will be so ordered.
Appellants’ motion refused.
Appellee’s motion granted.