The opinion
ON MOTION FOR REHEARING
We agree that the preponderance of the evidence standard is the proper one to be applied in this case, but hold that appellant has failed to produce both the quality and quantity of the evidence sufficient to satisfy her burden of proof. As to the evidence of Mrs. Watkins’ intention to adopt, appellant is correct in pointing out that such evidence is some circumstantial evidence of an agreement to adopt and must have been considered by the jury. Nevertheless, the evidence on this point is insufficient, standing alone, to establish an agreement to adopt and does not render the jury’s answer to Special Issue Number One to be against the great weight and preponderance of the evidence. Likewise, the testimony of witnesses familiar with the Watkins’ family which has been recited in our original opinion constitutes circumstantial evidence of an agreement to adopt which alone could not support a finding of an agreement to adopt. Even considering all of the circumstantial evidence presented by appellant to show an agreement to adopt, we hold that appellant did not show by preponderance of the evidence that there was any agreement *259 by Mrs. Watkins to adopt appellant, and therefore find no grounds for reversal on the basis of the jury’s answer to Special Issue Number One.
Appellant has raised one more point in her Motion for Rehearing which warrants further discussion by this Court. It is true that, technically. Special Issue Number Two was not made conditional upon Special Issue Number One. However, all case law directs that when examining issues in search of a fatal conflict, the issues must be construed to be compatible whenever possible. The negative answer to Special Issue Number One seems clearly to indicate that the jury, after considering all of the evidence, failed to find any agreement to adopt. The answer to Special Issue Number Two, i. e., that there was reliance by appellant on an agreement to adopt, does not necessarily assume that such an agreement did exist, that simply that appellant believed, perhaps without reason, that there was such an agreement. Furthermore, the Texas Supreme Court in Littlerock Furniture Manufacturing Co. v. Dunn, 222 S.W.2d 985, 991 (Tex.1949), adopted the following test for determining whether or not issues were in fatal conflict:
The test... is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.
In this case, the jury’s negative answer to Special Issue Number One effectively defeats appellant’s cause of action based on equitable adoption; however, it cannot be assumed from the jury’s affirmative answer to Special Issue Number Two that an agreement to adopt did exist, and based on the jury’s answer to this question judgment could not have properly been entered in favor of appellant. We therefore conclude that no fatal conflict exists between Special Issues Number One and Two.
The Motion for Rehearing is overruled.