ON MOTION FOR REHEARING
Among other complaints in his motion for rehearing, appellant Cooper asserts we erred in holding that in an assault action defense of property is an affirmative defense under Rule 94 which must be affirmatively pleaded by the defendant before the court is required to submit it to the jury. Cooper says the defense is an inferential rebuttal issue, citing Foster v. H. E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex.Civ. App.—San Antonio 1977, writ ref’d n. r. e.) which held that it was.
An inferential rebuttal issue is one which disproves the existence of an essential element submitted in another issue. Wirtz v. Orr, 533 S.W.2d 468, 472 (Tex.Civ. App.—Eastland 1976, writ ref’d n. r. e.). So, it has been held that the defense of self-defense in a suit arising under our wrongful death statute (Article 4671, Vernon’s Tex.Civ.St.) is inferential rebuttal rather than affirmative defense because the plaintiff has the burden of pleading and proving that the killing of the deceased was “wrongful.” Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). On the other hand, in an assault action, the plaintiff need only plead and prove that the assault was committed “intentionally” or “knowingly.” V.T.C.A., Penal Code § 22.01. The defenses of self-defense and defense of property do not seek to disprove those elements of intent; rather, they admit that the assault was committed intentionally or knowingly and seek to justify it. See Cameron Compress Co. v. Kubecka, 283 S.W. 285, 287 (Tex.Civ.App.—Austin 1926, writ ref’d). Accordingly we remain convinced that they are affirmative defenses under Rule 94 which, if raised by pleading and proof, should be handled by special issue rather than simply by explanatory instruction as an inferential rebuttal issue.
In any event, if the issues of self-defense and defense of property in an assault case be classed as inferential rebuttal they still must be pleaded before their submission to the jury is required. Rule 279, Vernon’s Tex.Rules Civ.Proc.; Hodges, Special Issue Submission In Texas (1959), p. 47, Inferential Rebuttal Issues, § 17.
Appellant’s motion for rehearing is overruled. The judgment is affirmed.