On Motion for Rehearing. In its motion for rehearing counsel for plaintiff in error insist earnestly that this case should be reversed upon the authority of Chicago, Rock Island Railroad Co. v. Callicotte (C.C.A.) 267 F. 799, 16 A.L.R. 386. There are substantial differences between the cases. Not only did the pleadings and evidence in the Callicotte Case show a course of practiced, deliberate deception in the way of simulating paralysis, a condition that might be temporarily superinduced by the use of drugs, but also it was testified that Callicotte threatened his wife's relatives in the event they disclosed his real condition, thus effectively and definitely shutting off a disclosure of truth essential to the defendant, and intimidating those who might have become its witnesses.
In this class of cases it is held that the courts may take notice of the facts shown upon former trials of the case and likewise of the records of the case. In fact, our courts have gone so far as to hold that the court may take notice of the facts shown by the records in another case between the same parties. Allen v. Thomson (Tex. Civ. App.)156 S.W. 304; Edgar v. McDonald (Tex. Civ. App.) 106 S.W. 1135. By the weight of authority in this state those allegations contrary to the facts shown in the record of the case are not admitted by a demurrer, since the trial judge has authority to take cognizance of the records of his own court. Hobbs v. Boyd (Tex. Civ. App.) 292 S.W. 947, citing Edgar v. McDonald, supra, and Farrar v. Bates, 55 Tex. 193. See, also, Bickle v. City of Panhandle (Tex. Civ. App.) 43 S.W.2d 640, 641; Cochran County v. Boyd (Tex. Civ. App.) 26 S.W.2d 364; Hake v. Dilworth (Tex. Civ. App.)54 S.W.2d 583; Aetna Ins. Co. v. Dancer (Tex.Com.App.) 215 S.W. 962, 963.
By reference to the former appeal, we find that in its answer the defendant alleged that any injuries received were trivial and had long since healed, and that plaintiff was not incapacitated for labor on account of said injuries. We find, too, that issue submitting partial incapacity were submitted to the jury; that an issue was submitted as to whether the injury was confined to the right leg, and, if so, whether it would continue from August 14, 1933; and whether it was confined to the right leg below the knee. These disclose no reliance upon Rhodabarger's representations.
Turning to the statement of facts, we find that Drs. Jim Camp and J. Hillard Camp, witnesses in behalf of plaintiff in error, testified that they found no injuries except in proximity to the ankle. They based their evidence as to that injury entirely upon an X-ray picture that one of them had made, and from the knowledge thus acquired expressed the opinion that it was a permanent injury, but would not totally incapacitate the plaintiff — one fixing his incapacity at about 25 per cent. and the other at not exceeding 35 per cent. It does not appear that any of this evidence was based upon subjective symptoms, or upon any history of the case recited to these gentlemen by plaintiff. It also appears that at the trial, which took place in February, 1935, and from which the appeal was taken, questions were asked by counsel on both sides of opposing witnesses as to the testimony of said witnesses at a "former trial," thereby indicating that the trial in February, 1935, was not the first trial of the case. Nowhere in the stricken pleading of plaintiff in error is there anything to account for defendant's failure to ascertain by cross-examination at the first trial at just what places plaintiff had been during the interval between said trial and the day of his injury, for whom he had worked during said time, how much work he had done, and with whom he had associated. Nor is there any sufficient allegation of diligence in following up the results of such *Page 1125 inquiries, if any were made. The grant of a new trial would merely afford an opportunity to relitigate issues decided by the jury after hearing conflicting testimony.
The motion for rehearing is overruled.