Opinion
No. A-10693.
April 28, 1965. Rehearing Denied July 14, 1965.
Appeal from the District Court, Upton County, Stephen F. Preslar, J.,
H. O. Metcalfe, Marfa, Brown, Day Crowley, Fort Worth, for petitioner.
Warren Burnett, Odessa, John Howze, Monahans, for respondent.
The application for writ of error does not disclose a properly presented error which would justify the reversal of the judgment of the Court of Civil Appeals. Accordingly we deny the application with the notation, 'Refused, no reversible error.' This action should not be taken as an approval of the Court of Civil Appeals holding ( 387 S.W.2d 101) that, when raised by the evidence, the issue of whether or not a plaintiff has sustained an injury is a 'defendant's issue' within the meaning of Rule 279, Texas Rules of Civil Procedure. There is a marked distinction between the term 'defendant's issue' as generally used in connection with Rule 279 and the term 'vital defensive issue,' as used in Texas Pacific Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528.