On Motion for Rehearing.
Appellant, City of Wichita Falls, has filed its motion for rehearing in this cause, in which it is earnestly insisted that we were in error in the' conclusions reached and expressed in our original opinion.
We are requested to make further findings of fact, based upon the testimony of named witnesses. It is claimed that our statement in certain respects does not properly reflect the testimony given by those witnesses. Obviously, it would be impracticable for an appellate court to relate in an opinion all the details, conflicts and immaterial parts of evidence set out by fhe statement of facts.
Our attention is directed especially to parts of the testimony given by Mrs. A. T. Willis, which it is contended refers to “projects” at which such persons as Phillips worked. It is true the witness was asked this question: “When the (work) card was issued did you direct .them where to go?” She answered: “The RFC did that through these projects they worked on.” However, counsel apparently took issue with the witness by reminding her that there were no “projects” at that time, and the witness countered with a question of her own, by asking counsel, “Wouldn’t that be called a project?” Her inquiry evidently referred to the transaction she had had with the applicant and her recommendation to RFC that a man was able to work and RFC issued the work card, entitling the applicant to compensation if he should find work with either of the agencies recommended by the federal government. The materiality of that part of the testimony is made applicable to what we, have said in the opinion in regard to “projects” sponsored by federal agencies.
To construe those parts of Mrs. Willis’ testimony above mentioned, in their most favorable light, in support of appellant’s contention, as compared to other testimony given by her and referred to in the opinion, only a fact question would arise, and this was to be passed upon by the court sitting in lieu of a jury. New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused. The judgment entered was against appellant, and this was equivalent to a finding of fact by the court against the contention of appellant in the respect complained of. ■
In the motion, appellant attempts to quote a paragraph from near the middle of the original opinion, which begins with these words: “Phillips sued the city for the damages sustained and recovered judgment”, etc., and insisted that what we said has no bearing on the case and has added: “As we see it, the above quotation from the opinion of this court is merely a criticism of the lawyers who tried the Phillips case.”
First of all, we desire to say that such a motive imputed to us certainly cannot be drawn from the language used, and further, that such an idea did not enter the mind of any member of the court; we each hold counsel in the highest esteem, both in ability and integrity.
Again we have studied the paragraph complained of, and with our attention drawn to it by the motion, we cannot see how the language used could be so construed. In a general sense, any time a court differs with counsel it could be said that it is a reflection upon, or criticism of, counsel’s views, but certainly no such motive should be imputed to a court.
In the next place, the manner in which our opinion is attempted to be quoted in the motion, the expression used by us relating to the “guest statute”, would be meaningless, or at least would be the reverse of what we conceive to be the law. However, we know that counsel did not purposely misquote what we said in the opinion. We said, “If Phillips was not an employee”, etc., whereas we are quoted as having said, “If Phillips was an employee”, and so on.
As we view the case, it was very essential that we refer to the former case as we did. Appellant’s caúse of action was dependent upon that case; it plead it as ground of recovery upon the insurance policy. The appellee cited the opinion by this court as an authority on one point, but we did not think it supported the contention made and therefore did not comment thereon.
*180Our reference in the opinion to what is commonly known as the “guest statute”, was prompted solely by the thought that if Phillips when injured was not an employee, he was a gratuitous guest of the driver of the city’s truck. The case was tried upon the theory that he was an employee, hence nobody contended that he was simply a guest.
From the record in this case, it is apparent that counsel for. appellant feels that counsel for appellee, in the instant case, so conducted the original case of City of Wichita Falls v. Phillips, supra, as to make a defense to the present case. Whether or not there was a joint and cooperative participation in the original case by counsel for the city and that of the insurance company was determined by the court against appellant. Under the evidence in the case, that. finding is binding on us.
These conclusions have been written for the purpose of assuring counsel that no reflection upon or criticism of them was intended by the court. We are yet unable to perceive how our language could be so construed.
We think the disposition made of the appeal in the original opinion is correct, and with the above explanations, the motion is overruled.