On Motion for Rehearing
We were in error in our original opinion in holding that special issue No. 1 requested by defendants was fairly and affirmatively presented by the issue submitted to the jury by the court. It is true that the defensive issue was included within the issue submitted for plaintiffs by the court. But in tying it on to plaintiffs' issue, making a double question, and requiring a “Yes” or “-No” answer thereto, deprived the defendants of their right to have the jury pass upon their defensive issue directly and affirmatively, separate from plaintiffs’ issue.. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. The general rule is stated in 41 Tex.Jur. pp. 1115, 1116, § 280.
Having reached the conclusion that the defendants were entitled to have their defensive issue, raised by the testimony, directly and affirmatively submitted to the jury in an issue separated from plaintiffs’ issue, for that reason we grant the motion for rehearing and reverse and remand the cause.