The opinion
ON MOTION for rehearing
Mr. Justice Norvell
delivered the opinion of the Court.
Petitioners assert that the issues inquiring as to Walter Shaller’s alleged agency for his mother and his alleged agreement on behalf of his mother and himself to cancel the policies in question are not essential to their causes of action but constitute affirmative defenses of the respondent and hence a remand of the cause is not required under the rule announced in Barker v. Coastal Builders, 153 Texas 540, 555 , 271 S.W. 2d S.W. 2d 798, 807.
Strictly speaking, the issue of cancellation was not a part of petitioners’ cause of action. It was a defendant’s rather than a plaintff’s issue. Such issue was, however, raised by the evidence and affirmative answers thereto would have been fatal to a recovery by petitioners. A negative answer to a defendant’s affirmative issue may be as much against the overwhelming preponderance of the evidence as the answer to any other issue. The rule is applicable to all issues whether they be classified as plaintiff’s or defendant’s issues, or answered in the affirmative or in the negative. Lee v. International & Great Northern R. Co., 89 Texas 583 , 36 S.W. 63 ; Barron v. Houston East & West Texas Ry. Co., Texas Com. App., 249 S.W. 825 , holding approved by the Supreme Court.
The motions for rehearing filed by the petitioners and the respondent are overruled.
Opinion delivered February 5, 1958.