The opinion
On Motion of Appellant for a Rehearing.
In the motion appellant complains because this court in its opinion disposing of the appeal did not specifically pass on his second assignment of error by which he questioned the sufficiency of the evidence to support the judgment rendered against him December 9, 1930. The evidence was duly considered, and we reached the conclusion it furnished sufficient support for findings involved in the judgment, to wit: (1) That the truck which ran over appellee belonged to appellant, or, if it did not, was under his control, and being used by h^1 employee in his service at the time of the accident; (2) that said employee in operating the truck as he did was guilty of actionable negligence; (3) and that such negligente resulted in injury to appel-lee’s person.
Th.e statement in the opinion that the only evidence sent to this court on’the issue as to negligence on the part of appellant or his attorneys in suffering the'judgment in question to be taken was the testimony of appellant as a witness in his own behalf is challenged as incorrect, and reference is made to the affidavit of the Attorneys Shelton & Shelton attached to and made a part of Canion’s pleadings. It was directly held in Southern Traction Co. v. Wilson (Tex. Civ. App.) 241 S. W. 636, 638 , that “affidavits [quoting] attached to a motion for new trial, while perhaps proper as pleadings, are not evidence.”
The motion is overruled.