It followed a general denial, and it is unquestionably the law that allegations of an answer following a general denial cannot serve as proof of the matters alleged, and therefore cannot relieve the plaintiff from the burden of proving such facts when material to a recovery. Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Kartes v. Fritter (Tex.Civ.App.) 63 S.W.2d 389; Eureka Security, etc., Ins. Co. v. De Ross (Tex.Civ.App.) 62 S.W.2d 226; First State Bank v. Jackson (Tex.Civ.App.) 13 S.W.2d 979; Spencer v. Temple Trust Co. (Tex.Civ.App.) 36 S.W.2d 604; Walker v. Rogers (Tex.Civ.App.) 10 S.W.2d 763; Dallas Ry. Co. v. Warlick (Tex.Civ.App.) 268 S.W. 512; Hines v. Warden (Tex.Civ.App.) 229 S.W. 957. Our consideration of the said second assignment of error, before having definitely determined the first, has led us irresistibly to the conclusion that plaintiff's petition was insufficient to state any cause of action, and the disposition of the appeal should be determined by and follow our conclusion upon that question.
"But it is well established that a general denial puts in issue all the material allegations of plaintiff's petition, except, of course, such as are required to be traversed by a special pleading, and, where an answer contains a general denial, statements in a separate plea in the same answer cannot be used as evidence to establish any of the allegations in plaintiff's petition. Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Hines v. Warden (Tex.Civ.App.) 229 S.W. 957; Dallas Ry. Co. v. Warlick (Tex.Civ.App.) 268 S.W. 512; Walker v. Rogers (Tex.Civ.App.) 10 S.W.2d 763; Townes Texas Pleading, p. 369."
Under its third proposition, appellant contends: Defendant having interposed a general denial, its allegations in its special answer pleading agency and reception of premiums by Keith Reed were not admissible in evidence against it. This is a correct proposition of law. Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Houston E. W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 97 Am.St.Rep. 877; Hines v. Warden (Tex.Civ.App.) 229 S.W. 957, 959. But appellant's bill of exception, as modified by the trial court, shows that said excerpts from appellant's answer pleading said agency and reception of premiums were admitted in evidence without objection, whereupon appellant offered in evidence its entire answer, whereupon appellee objected to said entire answer being admitted unless its consideration was limited to an explanation of defendant's pleading of said agency and reception of premiums.
But it is well established that a general denial puts in issue all the material allegations of plaintiff's petition, except, of course, such as are required to be traversed by a special pleading, and, where an answer contains a general denial, statements in a separate plea in the same answer cannot be used as evidence to establish any of the allegations in plaintiff's petition. Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Hines v. Warden (Tex.Civ.App.) 229 S.W. 957; Dallas Ry. Co. v. Warlick (Tex.Civ.App.) 268 S.W. 512; Walker v. Rogers, 10 S.W.2d 763 (by this court); Townes Texas Pleading, p. 369. Appellant's brief contains assignments challenging the sufficiency of the evidence in different respects.
The allegations in the special answer would not relieve her of this burden, and were not admissible in evidence. Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Railway Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 97 Am.St.Rep. 877; Peterson v. Graham-Brown Shoe Co. (Tex. Civ. App.) 210 S.W. 737; Hines v. Warden (Tex. Civ. App.) 229 S.W. 957. Error is also assigned to the court's action in permitting "plaintiff to testify in substance that she told defendant that her husband did not knock off $750 of the $3,750, and that she knew her husband did not do any such thing, it not appearing that she was a witness to the contract, and it being apparent that such statements were self-serving and hearsay."