Defendant answered by general denial, nonjoinder of parties and general and special exceptions. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals, 121 S.W.2d 655, and both parties have brought error to the Supreme Court. The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and
Therefore, it is in no position to complain of the failure of the court to submit the special defense noted. Gulf, C. S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, opinion by Justice Sharp; Riddle v. Lanier, Tex. Civ. App. 121 S.W.2d 655; Traders Gen. Ins. Co. v. Burns, Tex. Civ. App. 118 S.W.2d 391; Harris v. Thornton's Dept. Store, 94 S.W.2d 849, by the Court of Civil Appeals at Eastland, opinion by Justice Funderburk; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276, in which a petition for mandamus to compel certification of same issue decided in the Thornton's Dept. Store case, on the ground of conflict with former decisions, was denied by the Supreme Court, because the opinion of the Court of Civil Appeals complained of was in harmony with the opinion of the Supreme Court in the Conley case, and therefore there was no proper basis for issuance of the writ of mandamus — notwithstanding admitted conflicts between the Department Store decision and former decisions. Cisco N.E. Ry. Co. v. McCharen, Tex. Civ. App. 118 S.W.2d 844; Nolte v. Olmos Dinner Club, Tex. Civ. App. 118 S.W.2d 841; Southern Underwriters v. Sanders, Tex. Civ. App. 110 S.W.2d 1258, error dismissed; Sherwin-Williams Co. v. Delahoussaye, Tex. Civ. Ap