On Appellant’s Motion for Rehearing.
In its original disposition of this cause on October 14, 1948, through its opinion then filed, appellant’s point of error No. II, challenging the manner of the trial court’s submission to the jury of the question as to whether the appellee had had good cause for delaying the filing of his claim for compensation with the Industrial Accident Board, which point was fully quoted therein, this Court overruled such point upon *903the holding that it had been already finally disposed of by the Supreme Court in its opinion upon the first appeal of this cause, so as to leave ,that inquiry no longer an issuable one in this controversy, citing in support thereof the Supreme Court’s disposition of the matter, as reported in 201 S.W.2d at page 802, column 2, paragraph 7.
However, by very helpful arguments and briefs upon that question, both sides to this controversy now consider that this Court was in error in so holding that the Supreme Court’s former opinion had already become the law of this case on that feature, to the extent of eliminating further-consideration of it here. While this Court is unconvinced of error in such former holding, on reconsideration, it concludes and finds that appellant’s second point should be — -and it hereby is — overruled upon the merits, since as the appellee’s counter point thereto recites : “the evidence does not suggest the existence of any reason other than as alleged in appellee’s petition as to why he had not sooner filed his claim, and the jury, under the court’s charge, could not properly have considered any reason other than such alleged reason, and, if it were error, it was harmless.”
An examination of the statement of facts discloses no evidence of any other reason than that as alleged and testified to by the appellee for not having filed his compensation claim prior to the date it was so filed upon, and appellant failed to point out to the Court testimony on the issue of good cause that was not raised by the appellee’s pleadings.
The trial court expressly instructed the jury to answer all the issues from the evidence, defined the term “preponderance of the evidence”, and specifically as to the issue of such good cause, asked the jury to find from a preponderance of the evidence whether the appellee had had good cause for delaying the filing of his claim from December 10th of 1943 until December 23d of 1944, which the jury answered “He had”.
There is, further, no indication in the record that the jury either disobeyed the court’s instructions by considering matters outside the pleadings and evidence, or otherwise was guilty of any improper conduct.
Wherefore, if there was error in the court’s submission of its special issue No. 9 as to such good cause feature, there is no showing that it probably resulted in an improper judgment against the appellant, which is necessary for a reversal on that account, under Rule 434, Texas Rules of Civil Procedure.
These further authorities are now cited as further sustaining this Court’s overruling of appellant’s Point No. II, to-wit: Georgia Casualty Co. v. Gibson, Tex.Civ.App., 11 S.W.2d 191, loc. cit. 194, error dism.; Texas Employers’ v. Jones, Tex.Civ.App., 70 S.W.2d 1014, 1016, err. dism.; Texas Employers’ v. Eaton et al., Tex.Civ. App., 69 S.W.2d 569, loc. cit. 570, err. dism.; Norwich Union v. Wilson, Tex.Civ.App., 17 S.W.2d 68, loc. cit. 78 err. dism.; Southern Underwriters et al. v. Mowery, Tex.Civ.App., 147 S.W.2d 834, loc. cit. 839, 840; Williamson v. Texas Indemnity Co., 127 Tex. 71, 90 S.W.2d 1088, loc. cit. 1090; Texas Employers’ v. Wright, Tex.Civ.App., 118 S.W.2d 433, err. dism., loc. cit. 437, 439; Scott v. Gardner, Tex.Civ.App., 159 S.W.2d 121, loc. cit. 123, err. ref. W. M.; Southern Surety Co. v. Adams, 119 Tex. 489, 34 S.W. 2d 789, loc. cit. 797; Traders & General Ins. v. Wright, 144 S.W.2d 626, 630, err. ref.; Safety Casualty Co. v. Link, Tex.Civ. App., 209 S.W.2d 391, 395; err. ref. N. R. E.; Texas Employers’ v. McKay, Tex.Sup., 210 S.W.2d 147.
These conclusions require the overruling of appellant’s motion for rehearing; it will be so ordered.
Refused.