On Motion for Rehearing.
Appellee in his motion for rehearing has called attention to the inaccuracy of a statement in the original opinion. It was there stated in substance that E. P. McCall was asked on direct examination as to whether he knew at the time of the issuance of the policy that there was a mortgage on the car, and replied that he did not; that plaintiff had said that there was no mortgage recorded against the car; that upon that response he placed the word “no” in the proper place in the policy. These statements were made by the witness on redirect examination. Prior to the redirect examination one of the attorneys for the appellant had on cross-examination interrogated the witness McCall as to the conversation between McCall and’ plaintiff prior to the delivery of the policy,, and the witness had stated that appellee’s, statement to him was that there was no recorded mortgage against, the automobile.. On redirect examination the witness was. interrogated as above indicated, and, in addition, as to whether appellee had told him before the issuance of the policy that something was owed on the purchase price of the truck, to which- the witness responded in the affirmative.
Under the ruling of the court om the exception this was not relevant testimony. Giving the testimony due weight, we do not believe that it is of such conclusive nature as to establish notice on the part of the agent of appellant that the truck was-encumbered, and that the purchase price-was not paid, and that the fraudulent representations charged in the answer had not been made. While the testimony has bearing on the issues tendered by the pleadings-stricken, it amounts, in our opinion, to. nothing more than a rather casual reference thereto.
We are still of the opinion that appellant was entitled to have the allegations stricken remain in the pleadings, and entitled to the-opportunity to introduce such evidence as-jt might be able to produce thereon.
The motion for rehearing is overruled,.