*214Denied-September 8, 1914.
On Petition for Rehearing.
(143 Pac. 924.)
Mr. Justice Burnettdelivered the opinion of the court.
The petition for rehearing in this case strongly urges that the original opinion did not correctly state the fact when it said:
“All that is said in the answer concerning the tort alleged is that it happened during the time the plaintiff was working for the defendants.”
This statement is strictly correct, as shown by the answer appearing in the abstract. The defendant contends, however, that during the trial the court permitted an amendment to the answer by adding to the end of the paragraph of that pleading containing the counterclaim, these words “said conversion growing out of the same transaction as mentioned and described in plaintiff’s complaint. ’ ’ The bill of exceptions reveals that the defendant’s counsel asked permission to make such an amendment, to which the court responded after argument: “I would be inclined to hold your amendment sham anyway. ’ ’ After further argument counsel stated: “I would like to be permitted that amendment for the purpose of that record,” and the court responded, “Yes, certainly over the objection.” Nothing further is shown in the record indicating whether or not the counsel for the defendants availed himself of that permission and actually made the amendment; but the answer appearing in the abstract does not contain the amendment.
*215Conceding, however, that the amendment was permitted and was actually made, it simply amounts to a conclusion of law, and no fact is stated by which the court could determine whether or not the tort arose out of the same transaction. In other words, the pleading, even if the same had been amended as the defendant desired, would not have stated facts sufficient to constitute a defense.
We adhere to the former opinion.
Affirmed. Rehearing Denied.
Mr. Justice Moore, Mr. Justice Ramsey and Mr. Justice Eakin concur.