ON MOTION FOR REHEARING. The author hereof was under the impression that the original opinion disclosed that, under all the pleadings herein, the issue of liability under the policy, as well as the issue of waiver of the so-called exemption therefrom, were in the case. Indeed, it seemed that this was because of a subconscious, or at least a silent implied, feeling on defendant's part that perhaps the defense of res judicata might not hold water, that the defense was set up that defendant was not liable because the driver of the automobile was under eighteen years of age. In addition to the other things set out in the opinion, showing that the petition at the very first pleaded and relied on liability under the contract of insurance as it stood, it may be stated that the amended petition on which the case was tried, also clearly shows it relies still on the insurance contract, and that even if the defense, sought to be set up as to the driver not being authorized by law to operate the automobile, be deemed a defense, yet that there was no clause in the contract nor consideration therefor, authorizing the defendant to claim that defendant was not liable solely because the said driver was under eighteen.
The defendant's amended answer set up the defense that the driver was under eighteen and by reason thereof defendant was not liable under the policy, and then it pleaded another affirmative defense, namely, res judicata as to that. The course at the trial shows that three issues were involved, (1) as to the coverage of the policy when the said driver was between sixteen and eighteen; (2) whether, if this defense were good, this defense had been waived; and finally (3) whether the defense as to coverage had been adjudicated. So that it is not seen how it can be said that the opinion decides this appeal upon an issue not involved in the case. The fact is, the opinion does not decide the case solely on that issue, but considers all of the issues raised, *Page 701 and attempted to be raised, and holds that the case should be affirmed upon each and all of them. The fact that defendant asked instructions on the theory that the driver's age forbade him to drive, shows that such was an issue in the case and that the question of res judicata was not the only defense raised by appellant at the trial from which this appeal was taken. Again this would seem to show that the original opinion did not dispose of the appeal upon a point or an issue not raised by the appeal. Moreover, even if the insufficiency of the proof to establishres judicata be not a point raised in the briefs, yet since it is used to support the judgment rendered, and not to destroy it, we are at liberty to raise it ourselves and are not confined merely to points raised, as we are when the effect is toreverse the judgment.
Aside from the above, we entertain the view that the opinion handed down speaks for itself and answers every contention raised in the motion for rehearing. Said motion is therefore overruled. All concur.