The opinion
On Motion for Rehearing
Appellant has filed an able motion for rehearing in which it contends we erred in holding that the trial court properly refused to submit issues inquiring whether Walker drove an automobile on a public highway while intoxicated and whether such act was a proximate cause of the collision and, further, that we erred in holding that the court properly refused appellant’s requested additional instructions in connection with issue 9, to the effect that in awarding damages the jury could not consider any pain or disability caused by a pre-existing disease or infirmity, or by anything other than the injuries received in the collision. After careful consideration, well ave concluded that we erred in such holdings.
The decision in Benoit v. Wilson, Tex.Sup., 239 S.W.2d 792 does not authorize a holding that driving an automobile on a public highway while intoxicated cannot be a proximate cause of a collision. Said issue-should have been submitted to the jury. Peveto v. Smith, 134 Tex. 308 , 133 S.W.2d 572 . See also 60 C.J.S., Motor Vehicles, § *288 265, page 646; Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405 , 69 S.E. 857, 858 , 31 L.R.A., N.S., 504; Spratling v. Butler, Tex.Sup., 240 S.W.2d 1016, 1017 ; Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789, 792 , writ ref.
On another trial, if the evidence as to prior infirmities and disease is the same, the court should instruct the jury as to the exclusion of improper elements of recovery in accord with the decision in Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505 , 116 S.W.2d 683, 686 .
The motion for rehearing is granted. The judgment is reversed and the cause remanded.