The opinion
On Motion for Rehearing.
Appellee “objects and excepts to the failure of the court to include in the finding of facts a finding that the appellant’s agent, E. L. Traylor, was an eye witness to the accident, and respectfully asks that such finding be made.”
We add to the findings the uncontradicted statement of the witness Max B. Miller, as requested in the motion, found in the record, as follows: “The agent down there at that' time was Mr. Traylor. I met him when I was down there. He told me he saw the accident. I-Ie is here.”
We also add to the statement of the witness Robinson, at the request of appellee, the following: “I had that (the hole or depression in the pathway there) pointed out to me by the agent, Mr. Traylor.”
In requesting the additional statement of the fact that appellant’s agent, E. L. Tray-lor, had said to the witness Miller that he (Traylor) told the witness that he saw the accident, and that Traylor “is here,” that is, was present at the trial, we assume that ap-pellee attaches some probative, effect to the fact stated, as a presumption or inference, adverse to appellant, to be drawn from the fact that appellant’s agent saw the accident, was present, and was not called to testify by appellant. But, as we view it, the rule that when one party to a suit is in possession of facts, and it is his duty to disclose them, if he fails or refuses to do so, it will be presumed that they are unfavorable to him, has no application here. The rule is well settled •that where the doctrine of res ipsa loquitur has no application, there was no duty resting upon appellant to explain anything connected with the accident. Here, the witness, being present, was as available to appellee as to appellant. Judge German of the Commission of Appeals, Section A, in Davis v. Castile, 257 S. W. 870 , fully discusses the question presented, and we need only refer to that case and the cases there referred to, and especially the rule of res ipsa loquitur in D. R. A. 1917E, pages 1. to 249, and the cases there referred to.
In considering the case by reason of the *691 rules as above, we attached no importance to the fact that Traylor saw the accident, and was present at the trial.
The motion is granted to the extent only of adding the testimony as requested, but otherwise is overruled.