At a former term the appeal in this case was affirmed, and appellant presents the case at this time upon his motion for rehearing. The motion will be granted, to the extent of considering the statement of facts, as though the appeal had been originally properly perfected.
As originally presented, the appeal was without a statement of facts, it appearing from the record that the case was tried in the court below in January, 1919, and a statement of facts is presented which was filed in October, 1919; but the affidavit of appellant is before us, and not controverted, from which it appears that said statement of facts was presented to the trial judge within the time fixed by law for the approval and filing of such statement of facts, and we have, therefore, considered the same.
Appellant sought, by his special charge No. 1, a peremptory instruction in his favor, which was properly refused by the trial court.
By special charges Nos. 2 and 3, appellant sought instructions which were covered by the main charge. We are unable to agree with the contentions made in the exceptions reserved by appellant to the main charge, and believe the evidence sufficiently supports the verdict of the jury; and finding no error in the judgment of the trial court, the same is again affirmed.
Affirmed. *Page 74