On Motion for Rehearing.
The propositions and arguments contained in appellant’s motion for a rehearing which were presented in the original brief do not suggest to us any reason for altering or further commenting upon the discussion of the case embodied in this court’s original opinion. However, new arguments are brought forth in the motion for a rehearing based upon propositions which were not suggested in the motion for a new trial filed in the court below, nor in appellant’s original brief in this court.
In the motion for a rehearing, appellant for the first time squarely presents to the court two assigned reasons why the judgment of the trial court should be reversed and the cause remanded. The first of these propositions is that all the witnesses who testified below were interested adversely to appellant, and that therefore their credibility and the weight of their testimony was for the jury to pass upon, and that in these circumstances the court could not give a peremptory instruction based upon such testimony, although it was wholly uncontradicted.
There is no confusion or contradiction in the testimony of any of the witnesses. All their statements made by depositions propounded to them before the trial are free from equivocation and confusion, and are direct and positive. They were subpoenaed as witnesses by appellant and placed upon the stand by it in the trial of the case. There they each gave their testimony without material variation from the burden and effect of that contained in their respective depositions. No circumstance is indicated in the record or otherwise suggested to cast suspicion upon any of this testimony. On the contrary, while every witness who testified was an interested witness, yet we think the circumstance that each one of them testified to a state of facts concomitant with those testified to by all of the others in detailing the respective transactions with Card-well may be said of itself to constitute an element of corroboration; and especially does this seem so to us, because there is no allegation or other suggestion of fraud or conspiracy among the various owners of the respective lo-ts of cotton delivered to Cardwell. Each of these owners testified to an independent transaction with Cardwell wholly unrelated to each of the other transactions involved in the evidence contained in the record, and, in the absence of the idea of fraud and conspiracy among the witnesses, the conclusion is to ns inevitable that the testimony of each tends to support and corroborate that of the others, notwithstanding that the element of interest runs throughout the testimony. They were all engaged in an honorable pursuit, and nothing discreditable as to any of them is suggested.
Appellant cites numerous authorities from various jurisdictions holding that a jury may disregard the testimony of an interested witness, and that, in passing upon evidence given by a party to a suit or by a witness otherwise interested, the jury may altogether discredit it. We recognize the province of a jury to discard evidence given by an interested witness in a proper case, even though it may be altogether uncontradicted; tout, where all the testimony in a case coming from numerous witnesses, as in this case, is unequivocal and without «¡onfusion, and no circumstance existing in connection with the adduction of the testimony to cast any cloud of doubtfulness upon it, then there is nothing to submit to tbe jury. A jury cannot arbitrarily discredit a witness and disregard his testimony in the absence of any equivocation, confusion, or aberration in it. It is not proper to submit uneontradicted testimony to a jury for the sole purpose of giving tbe jury an opportunity to nullify it by discrediting tbe witness, when nothing more than mere interest in the case ■ exists upon which to discredit such witness. The testimony must inherently contain some element of confusion or contrariety, or must be attended by some circumstance which would render a total disregard of it by a jury reasonable rather than capricious, before a peremptory instruction upon the evidence can be said to constitute an invasion of the right of trial by jury. That it is proper for a trial court to instruct a verdict upon the uneon-tradicted testimony of interested parties, when it is positive and unequivocal and there is no circumstance disclosed tending to discredit or impeach such testimony, can be said to he a settled rule in Texas. This is the clear and positive effect of the decision in the cases of Joffre v. Mynatt, 206 S. W. 951, decided by this court, and Hill v. Staats, 187 S. W. 1039. This latter case was decided by the Fort Worth Court of Civil Appeals, Mr. Justice Buck rendering the opinion of the court. A writ of error was refused by the .Supreme Court, no written opinion being delivered. However, an examination of the case renders it conclusive that the-Supreme Court, in refusing the writ of error, placed approval upon the view of the Court of Civil Appeals that it is proper for a trial court to instruct a verdict upon the uncontradicted testimony of interested parties, their testimony being positive and unequivocal, and no circumstance being disclosed tending to discredit or impeach their testimony.
In that case appellant sought to recover damages for injuries inflicted through the negligence and recklessness of appellee’s chauffeur in driving an automobile belonging to appellee. Appellant proved the injuries *973and adduced evidence conclusively revealing that they were caused through the negligent and reckless operation of appellee’s automobile by his chauffeur. This proof established a prima facie case against th,e appellee Staats. As a defense, appellee and Ms wife, both of whom were interested parties, testified to facts, which were uneontradicted, to the effect that, although the automobile belonged to appellee and was being driven by appellee’s chauffeur at the time of the accident, yet it was not being operated within the scope of the chauffeur’s duties but upon an errand outside of such duties and in express violation of instructions. The testimony of appellee and his wife being uncontra-dicted, and being positive and unequivocal, the trial court gave a peremptory instruction for appellee. The sole effect of the judgment of the Court of Civil Appeals, as well-as that of the Supreme Court, in affirming the judgment of the trial court, was to establish the rule that in such circumstances it is proper to give a peremptory instruction. To the same effect is the decision of this court in the case of Dallas Hotel Co. v. Newberg, 246 S. W. 754, recently rendered by Justice Vaughan but not yet (officially) published. See, also, authorities cited in the case of Hill v. Staats, supra, and the following: T. & P. Ry. Co. v. Sherer (Tex. Civ. App.) dissenting opinion, (1S3 S. W. 409; Texas Life Ins. Co. v. Childress, 204 S. W. 1038; Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788; Felts v. Bell County (Tex. Civ. App.) 103 Tex. 616, 132 S. W. 123; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.
As a second newly advanced ground for requesting this court to reverse and remand the cause, which was not in any way suggested in the motion for a new trial or in the assignments of error contained in appellant’s brief, is the proposition that Cardwell was dead at the time of the trial and, for that reason, the credibility of the various interested witnesses for appellee should have been submitted to the jury because, as appellant contends, when testimony is given by a witness which could be contradicted only by a person who is dead, it is not proper to direct a verdict. Cardwell committed suicide about, or soon after, the time of the discovery of his perfidy. To support its position, appellant cites the following eases: Clark v. Public Service Elec. Co., 86 N. J. Law, 144, 91 Atl. 83; Bloomingdale v. So. Nat. Bank, 63 App. Div. 72, 71 N. Y. Supp. 306; Chicago Great Western Ry. Co. v. Price, 97 Fed. 423, 38 C. C. A. 239. No Texas case bearing on this specific question is cited, and our investigation has not disclosed that it has been passed upon by the courts of this state.
None of the cases cited by appellant, upon careful analysis, support the unqualified proposition that it is not proper to direct a verdict where the only person who could have contradicted an uncontradicted witness is dead. In the ease of Clark v. Electric Co., supra, the witness whose testimony as to certain facts could be contradicted only by that of a dead person was in other respects directly contradicted by other witnesses in the case, and the ultimate conclusion in that case was that the judge was not justified in directing a verdict because there was an actual conflict in the testimony. The court said that a trial judge is justified in directing a verdict only upon a question arising from the admitted or uncontroverted facts in a case, and that conflicting testimony and its weight must always be submitted to a jury. The court did observe in that connection that the rule seemed to be as stated in 38 Cye. p. 1579, that a verdict will not be directed1 where the only person who could have contradicted the witness is dead, but this statement, considered in the light of the actual situation in that case, does not warrant the conclusion that the court was laying down the proposition that in no event will a verdict be directed where the only person is dead who could have contradicted the uncontro-verted testimony upon which a verdict is directed.
In the case of Bloomingdale v. Bank, supra, the facts, as stated by the Supreme Court of New York, were substantially as follows: The bank had discounted a note made by a distillery company, which seems to have been indorsed by another party and secured by purported certificates of the maker of the note that certain whisky had been deposited in its warehouses to be delivered to the holder of the certificates. Some time previous the makers were notified that the note, had to be paid at maturity and a Mr. Johnson, an officer of the maker, was introduced to plaintiff’s manager by a person connected with one of the plaintiffs, who was an in-dorser of the note, and requested the plaintiff to take the note off the bank’s, hands, representing that there was a collateral note which attached 500 barrels of certain whisky. Plaintiff’s manager stated he would investigate and subsequently instructed a clerk to go to the bank and see the president. This was a few days before the note matured. The clerk testified that he had a conversation with the president of the bank concerning the note, and that the president made certain representations. He also testified that he reported the conversation to plaintiff’s manager, who stated, that he thereafter called upon the president of the bank and had a certain conversation with him. The president of the bank showed the plaintiff certain certificates calling for 500 barrels of wMsky. When the note came due, the plaintiff directed the clerk to go to the bank, take up the note, and bring back the certificates. This was done. The note was marked “paid.” The certificates certified to the deposit of 509 *974barrels of certain whisky in a warehouse deliverable upon return of the indorsed certificates, and upon the payment of certain taxes and storage charges.
The plaintiffs, “before they sent to the defendant,” had received a new note from the distillery indorsed by the original in-dorser. The note held by the bank was returned to the maker after being canceled. It subsequently appeared that the distillery had issued fraudulent certificates, and that the certificates, purporting to represent 500 barrels of whisky upon which Bloomingdale et ■al. made the loan complained of, in fact represented but 43 barrels. After obtaining information of the fraud committed by the plaintiffs in the case, they sent their clerk to Louisville to investigate the certificates. They enrployed lawyers there. Having definitely learned that the certificates represented but 43 barrels of whisky, plaintiffs surrendered the certificates for this whisky and subsequently sold it. There was no evidence that if the president of the bank made the representations testified to he did so fraudulently or with knowledge that they were false or to deceive anybody.
The suit was to rescind the transaction and to recover back the amount paid the bank for the note, although there was no allegation of recission. There was no allegation of tender of the note and certificates to the bank and the demand for the return of the money paid. The note which had become due and which was held by the defendant was stamped “paid” and, in that condition, it was received by the plaintiffs without objection and delivered to the maker.
On the question of tender as affecting the right to rescind upon the ground of misrepresentation, etc., appellant’s clerk, employed by its manager, gave certain ineffectual testimony. He also testified that after he returned from Louisville, where he went to investigate and learned that the certificates were fraudulent he had a conversation with the president of the bank in which the latter made certain representations to him. Krause, appellant’s manager, under whose direction the clerk worked, also testified to certain interviews with the president of the defendant bank.
Upon this testimony the appellants based their contention that the court should have directed a verdict in their favor for the reason that the jury was bound to believe the evidence, it being uncontradicted. The court in passing upon the evidence concluded that it showed no cause of action, but stated that, even if a cause of action were proved by it, a verdict should not have been directed. This was of the nature of dictum. The reason for the view so expressed, as stated by the court, was that Krause was the manager of the financial department of the plaintiffs’ business and made the arrangements by which the new notes were discounted and the old note held by the defendant paid, and that, accordingly, he was interested in the transaction and, furthermore, that there was evidence making it doubtful whether he ever really went to the bank at all. Under such circumstances it was held that the court did not err in submitting the case to the jury, the president Of the bank being dead and unable to contradict either of the witnesses, both of whom were interested as above stated, and the positions of both under the plaintiffs’ employment being subject to termination at any moment, should they fail to give satisfactory testimony. The court expressly took notice of the fact that the assertion of Krause, who put the transaction through, assisted by Ham-berger, the clerk, was to be doubted in the light of all evidence indicating that hfe never went to the bank at all and talked with its president who was dead at the time of the trial.
The ease of Railway Co. v. Price, supra, is not authority for the contention that the sole fact of the only person who could contradict a witness being dead renders it necessary to submit a cause to a jury. In this case an interested witness testified to certain facts which it seems could not be positively contradicted by any person except a man who was dead at the time. One of the reasons given in that case why it was not proper to give an instructed verdict was that the testimony of this very witness was so contradictory and the motive for him to excuse his own delinquency by laying the fault of carelessness on one whose lips were closed in death so strong that his evidence could not be regarded as conclusive upon all reasonable minds as to certain conversations which took place between him and the dead man.
It thus appears that in this case, as well as in the case of Bloomingdale v. Bank, supra, the evidence of the witnesses which could be contradicted only by men who were dead was already clouded with suspicion and contradiction. The evidence of the witnesses in the case before us is not tainted with such conditions and circumstances. It is true that a phrase is found on page 1570, 38 Cyc., in the discussion of the general principle governing the direction of an instructed verdict to the effect that a verdict should not be directed upon the testimony of a witness who could have been contradicted only by a person who is dead. This phrase is appended to the end of a sentence enumerating cases in which it is improper to instruct a verdict. A reference to the footnote giving the authority for it reveals that it is based altogether upon the cases of Bloomingdale v. Bank & Ry. Co. v. Price, supra. That it is more expansive in its unqualified form than the holding of either of those cases becomes manifest upon reference to them. In its unqualified form *975it is not a correct statement of the law determined by those cases, as it purports to be.
Our holding that the conduct of the owners of the cotton in reposing complete confidence in Cardwell did not constitute negligence is vehemently assailed, and, after an argument in which the facts are analyzed and considered, appellant’s counsel propounds the more or less perfervid questions, “Who says they [the farmers] were free from negligence?” and, “Isn’t negligence a question of fact?”
The answer to the first of these questions is that the uncontradicted evidence compels the court to say, and inhibits the jury to gainsay, that they were free from negligence. The answer to the second question is that negligence is a question of fact only when the evidence presents an issue rendering possible more than one reasonable conclusion from the facts. When the proof is such, as in this case, that no reasonable deduction can be derived from it except that it conclusively establishes an absence of negligence, the question is one of law subject to the exclusive control of the court. Shawver v. Am. Ry. Ex. Co. (Tex. Civ. App.) 236 S. W. 802; Joske v. Irvine, supra.
The motion for a rehearing is overruled.