On Appellees’ Motion for Rehearing.
GALLAGHER, Chief Justice.This court, at a former day of this term, sustained certain contentions presented by appellant, reversed the judgment of the trial court in favor of appellees, and rendered judgment that they take nothing herein. The contentions sustained are recited in detail in our original opinion and need not be here repeated. Appellees contend in their motion for rehearing that the judgment of the trial court was responsive to a finding of the jury supported by evidence, and that we erred in reversing the same.
The court, on the trial of this case, among other special issues submitted the following, which were answered by the jury as indicated:
“(a) Do you find from a preponderance of the eyidence that such injuries, if any, sustained by Ernest C. Emmert on or about the 6th day of March, 1933, were sustained by him while working as an employee of the Oil Field Water Company? Answer: Yes.
“(b) Do you find from a preponderance of the evidence that Ernest C. Emmert at the time of his injuries sustained from which he died, was an employee of the partnership composed of J. L. Eilers and L. T. Jones, operating under the trade name of Oil Field Water Company? Answer: Yes.
“(c) Do you find from a preponderance of the evidence that Ernest C. Emmert, at the *215lime of Ms accidental injuries resulting in his death were sustained by him, was at said time an employee of the partnership composed of J. L. Eilers, W. L. Gary and J. P. Kerr, operating under the trade name of Oil Field Water Company? Answer: Yes.”
Appellees introduced in evidence at the trial a certified copy of the notice to the Industrial Accident Board that the Oil Field Water Company had become a subscriber and that appellant had become its insurance carrier. Said notice consisted of two sections, the first of which was signed, “Oil Field Water Company, by J. L. Eilers, Pres.,” and the second of which was signed, “Traders & General Insurance Company, by L. B. Morgan.” Neither of said sections contained any information with reference to who composed the Oil Field Water Company. Said notice was dated December 7, 1932, and was filed with the secretary of said board on December 16, 1932. Section 5 of article 8307 of our Revised Statutes, as amended, Acts 1931, 42d Leg., p. 378, c. 224, § 1 (Vernon’s Ann. Civ. St. art. 8307, § 5), provides, in substance, that a certified copy of such notice filed with the board, when properly certified to, shall be admissible in evidence in any court of this state and prima facie proof of all the facts stated therein, unless denied under oath by the opposing party. No verified denial was filed by appellant. The policy sued on showed on its face that the Oil Field Water Company, to whom it was issued, was a partnership composed of J. L. Eilers and L. T. Jones. Appellant introduced affirmative and uncontra-dicted testimony that said Jones, on February 25, 1933, approximately ten days before the deceased employee Emmert was injured, sold his undivided one-half interest in the business conducted under the name aforesaid to J. P. Kerr and W. L. Gary and retired from further participation in the operation of said business. Appellant introduced affirmative and uneontradicted testimony further showing that after the sale by said Jones of his interest in said business to the parties aforesaid and his retirement therefrom, said Eilers, Kerr & Gary continued to conduct such business under the name of Oil Field Water Company. We do not understand appellees to controvert the facts just recited. They apparently rely solely on the certified copy of said notice to support the affirmative finding of the jury in response to special issue (b) hereinbefore quoted. Such notice did not reveal whether the Oil Field Water Company named therein was a corporation or a partnership, and if the latter, who composed the same. The policy, however, upon which such notice was based, did show that such company was a partnership composed of Eilers and Jones. Any presumption that the same parties constituted the Oil Field Water Company on March 6th, when said Emmert was injured, would be contrary to the affirmative and undisputed evidence.. Presumptions are indulged in only to supply facts and do not arise where the facts are known. 22 C. J. p. 83; Largen v. State, 76 Tex. 323, 328, 13 S. W. 161; Geffert v. Yorktown Independent School Dist. (Tex. Com. App.) 290 S. W. 1083, 1085, par. 11; Shear Company v. Wilson (Tex. Com. App.) 292 S. W. 531, 535, par. 5; Moore v. Supreme Assembly, etc., 42 Tex. Civ. App. 366, 93 S. W. 1077, 1079 (writ refused); American Central Ins. Co. v. Heath, 29 Tex. Civ. App. 445, 69 S. W. 235, 236 (top second column); Texas News Co. v. Lake (Tex. Civ. App.) 58 S.W.(2d) 1044, 1045, par. 1. The finding of the jury in response to said special issue (b) was therefore not only without any support in the evidence, but contrary to the undisputed evidence. The finding of the jury in response to special issue (c), was, however, as shown above and in our original opinion, fully supported by the uncontradicted evidence.
The answers of the jury to special issues (b) and (c) were in direct conflict, and in legal effect destroyed each other. This situation would ordinarily require the court to declare a mistrial. Article 2211 of our Revised Statutes (amended by Acts 1931, c. 77, § 1 [Vernon’s Ann. Civ. St. art. 2211]), as it now reads, provides in substance that the judgments of the court shall conform to the pleadings, the nature of the case proved,^and the verdict, if any, but provides that upon motion and reasonable notice, the court may render judgment non obstante veredicto if a directed verdict would have been proper, or may disregard any special issue jury finding that has no support in the evidence. Appellant, before the case was submitted to the jury, requested the court to instruct a verdict in its favor, which request was refused. After the verdict was returned and before judgment was entered thereon, appellant filed a motion requesting the court to enter judgment in its favor. Appellant did not in said motion declare in terms that it was filed in pursuance of the provisions of said article, but it did ask therein that the verdict of the jury be ignored and judgment rendered in its favor. The allegations made in said motion were ample to meet the requirements of the statute with reference to a motion for judgment non obstante veredicto. The order of the court overruling said motion shows that *216it was considered in connection with motion for judgment filed by appellees, which necessarily implies that appellees had notice and participated in the hearing. The court recited in the judgment rendered that the “Oil Field Water Company” was on said 6th day of March, 1933, a subscriber within the meaning of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. art. 8306 et seq.), and that appellant was its insurance carrier. There is nothing in the findings of the court in this connection to indicate who, in the opinion of the court, constituted the “Oil Field Water Company” at said time. Apparently the court considered that because the respective partnerships which operated said company had seen fit to adopt an assumed name appropriate for the designation of a corporation, and to transact their business thereunder, they thereby became invested with the corporate attribute of continued existence and legal identity which could not be affected by subsequent changes in membership. See 14 O. X p. 54, § 6. Appellant presents only three assignments of error, two of which complain of the refusal of its request for a peremptory instruction, and the other of the action of the court in overruling its motion for judgment notwithstanding the verdict. The effect of our original opinion herein was to sustain said assignments.
Appellees’ motion for rehearing is overruled.