ON APPLICATION FOR REHEARING
Decided Dec 28, 1933
By THE COURTThe above entitled cause is now being determined on application of counsel for defendant in error for rehearing. We have before us application and memorandum-supporting same. In the memorandum is presented interrogatories submitted to and answers by the jury in the case of Kuhl v Redman and it is urged that the answers to these interrogatories meet the, reasoning of the court that the Kuhl-Redman case could not possibly render the present action res adjudicata for the reason that the jury may have based their decision wholly upon a finding of no damages.
It is now urged that the answers of the jury to the interrogatories show very definitely á finding of negligence on the part of Kuhl which was a proximate contributing cause of the accident and attending injuries.
It is evident that counsel has not grasped the import and scope of our former opinion. We can not take judicial cognizance of the Kuhl-Redman case, in any of its aspects. We are limited to the pleadings in the *522instant case and since there was a judgment on the pleadings, we can only accept as true the uncontroverted allegations of these pleadings. In every instance where an answer or reply either expressly or impliedly denies a material allegation of a petition or answer, an issue of fact is presented.
A directed verdict on pleadings can only be sustained on uncontroverted facts.
The interrogatories and answers can not be considered for the reason that they do not appear in the record of this case and we can not consider the record of the former case except as it was brought in in the court below through the pleadings.
We again call attention to the last pages of our original opinion in which we, in substance, say that the defense of res adjüdicata can not be invoked against the plaintiff in error under the facts of this case. The motion for rehearing will be overruled.
HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.