(dissenting).
While I agree with the majority view that it cannot be said that there was no evidence to take the case to the jury; I cannot agree that the judgment should be affirmed.
*994At the conclusion oí the evidence in this case, the district judge stated, “I don’t see very much case here, but it is a jury case and in order to see a case or not to see a case you have to pass on the testimony, and I believe I will submit it to the jury.” This expressed dubiety as to the sufficiency of the evidence and its resolution by submitting the question to the jury emphasizes, indeed gives dramatic force to, defendant’s alternative contention that the refusal to give its requested charge No. 31 was reversible error.
This charge, drawn in the light of, and in conformity with, the Texas decisions, of which Houston Fire & Cas. Co. v. Biber, Tex.Civ.App., 146 S.W.2d 442 and Lumbermen’s Mutual v. Vaughn, Tex.Civ.App., 174 S.W.2d 1001, are representative, was I think peculiarly called for here. In addition to the completely circumstantial character of the evidence, the general charge was so meager and so inadequate that the jury could not have gotten from it any real conception of appellant’s defensive position.
In Williams v. Pacific Employers Ins. Co., 5 Cir., 194 F.2d 490, this court reversed a judgment in a compensation suit tried by the same judge that tried this one, on the ground that the charge was not adequate to present the theory of an instruction requested by plaintiff.
To appellee’s urging there, as here, that the matter requested was adequately presented by other portions of the court’s instructions, we said, “Upon consideration of the charge of the court as a whole * * * we are of the opinion the excerpt quoted cannot be said to fairly present to the jury the law applicable to the facts upon which plaintiff relies”.
With deference to the opinion of my brothers, it is my view that the shortcomings of the general charge and the necessity for giving the requested charge are clearer here than they were there, and the resultant error is both more obvious and more prejudicial.
I think the judgment should be reversed for trial anew and I respectfully dissent from its affirmance.
Rehearing denied; HUTCHESON, Chief Judge, dissenting.. “To Said Honorable Court:
“Subject to tie action of the Court on defendant’s motion for instructed verdict and only in the event the same shall have been overruled, defendant requests the Court to charge the jury substantially as follows:
“Gentlemen of the Jury:
“The plaintiff, Mrs. Reynolds, contends that the evidence introduced by her is sufficient to raise the inferences that the injuries her husband, Mr. Reynolds, sustained when his automobile left the highway and collided with other objects, actually caused his death, and that at that time her husband was acting in the course of his employment as manager of the Acme Chevrolet Company. The defendant contends on the other hand that it is just as reasonable to infer from the evidence that Mr. Reynolds sustained a heart attack which actually caused his death and that he was not at the time acting in the scope of his employment for the Acme Chevrolet Company. You are the exclusive judges of credibility of the witnesses and the weight to be given their testimony and it is for you to determine from a preponderance of the evidence what the true facts were. In making this determination, however, I charge you that under the law mere circumstantial evidence must be of a stronger character than merely sufficient to raise a surmise or suspicion of the existence of the fact, or to permit of a purely speculative conclusion on your part; and if you believe from the evidence that the inference that Mr. Reynolds died of a heart attack is as reasonable as an inference that he died because of injuries, then it will be your duty to resolve such issue in favor of the defendant and to say by your verdict that Mr. Reynolds did not sustain an accidental injury resulting in his death; and if you believe from the evidence that the inference that Mr. Reynolds was not at the time of his death acting in the course of 'his employment is as reasonable as an inference that he was acting in the course of his employment, then it will be your duty to resolve such issue in favor of the defendant and to say by your verdict that Mr. Reynolds did not die as the result of accidental injuries received while acting in the course of his employment.”