OPINION ON MOTION FOR REHEARING
The Appellant has filed a very forceful motion for rehearing in which it urges that it properly preserved its complaint about the court’s charge and contends that it did not invite any error as we concluded in our original opinion. The motion notes:
The Court of Appeals properly notes that at the pre-trial conference Appellant submitted special issues which assumed the fact of injury and injury in the course of employment.
But, the argument states:
Appellant strenuously contends that it in no way admitted the fact of injury, or injury in the course of employment by preliminarily proposing a jury charge at the pre-trial conference assuming these two facts. The opinion of the Court of Appeals herein would seem to indicate that once a party had preliminarily submitted its requested special issues before trial, it could never change or withdraw those requests after it had heard the evidence adduced during the course of trial. Having observed the evidence develop at trial, and noting as the Court of Appeals did that the claimant had chosen not to testify, Appellant’s counsel properly requested special issues on the fact of injury and injury in the course of employment.
Our original opinion should not be construed as holding that in every case a party is conclusively bound by the special issues submitted at a pretrial conference. The argument made by Appellant fails to recognize that perhaps the reason Mrs. Sullivan did not testify was because a determination had been made at the pretrial conference that there would be no issue on “injury” or “course of employment” and with those issues out of the case, counsel made a decision not to use the plaintiff as a witness for some tactical reason. Had the trial court entered an order after the pretrial conference, as it should have, that the parties stipulated as to injury and course of employment, certainly those issues could not have been submitted to the jury after the plaintiff rested her case without testifying or offering other evidence on those issues.
Based upon the facts in this case, we are still persuaded that the court’s error in failing to submit the requested issues on injury and course of employment was invited by the issues which the Appellant requested at the pretrial conference. Those requested issues were not conditioned upon the plaintiff testifying in this case and were a representation to the trial court that injury and course of employment were not contested issues in the case. We again note that this problem could have been avoided by the entry of a proper pretrial order.
The Appellant’s motion for rehearing is overruled.