rved by delivery to the Secretary of State on April 3, 1968, slightly more than three years and nine months after the causes of action accrued. On the basis of these established and admitted facts, the trial court sustained Rigo's plea in bar setting up the two-year statute of limitation (Art. 5526) as a defense and rendered and entered judgment that plaintiffs take nothing against Rigo. But the court of civil appeals, noting that the record also showed that prior to the filing of this suit the plaintiffs had filed a similar suit in a United States District Court on June 24, 1966, within two years of accrual of the causes of action, which suit was dismissed for lack of jurisdiction on October 4, 1966, held that limitation was tolled during the pendency of such suit and until this suit was filed by the provisions of Art. 5539a, and, accordingly, that the causes of action were not barred. The trial court's judgment was reversed and the cause was remanded to the trial court for trial. 448 S.W.2d 536. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
It was necessary that appellants introduce evidence in support of these allegations. Thomas v. Shult, 448 S.W.2d 536 (Tex.Civ.App. — Houston, 1st, 1969); Curry v. Farabaugh, supra; California Chemical Company v. Sasser, 423 S.W.2d 347 (Tex.Civ.App. — Corpus Christi 1967); Binge v. Gulf Coast Orchards Co., 93 S.W.2d 813 (Tex.Civ.App. — San Antonio 1936, writ dism'd). We call attention to the following comment of our Supreme Court:
The City contends that specific issues of negligence must be submitted to and passed upon favorably by the jury in order to sustain a judgment, citing Kainer v. Walker, 377 S.W.2d 613 (Sup.Ct. 1964); Roosth Genecov Production co. v. White, 152 Tex. 619, 262 S.W.2d 99 (Sup.Ct. 1953); Driver v. Worth Construction Co., 154 Tex. 66, 273 S.W.2d 603 (Sup.Ct. 1954); Barclay v. C. C. Pitts Sand Gravel Co., 387 S.W.2d 644 (Sup.Ct. 1965); Jack Cane Corporation v. Gonzales, Tex.Civ.App., 410 S.W.2d 953, no writ hist.; Simmons Motor Co. v. Mosley, Tex.Civ.App., 379 S.W.2d 711, ref., n.r.e.; Louisiana Arkansas Ry. Co. v. Carpenter, Tex.Civ.App., 402 S.W.2d 198; Thomas v. Shut, Tex.Civ.App., 448 S.W.2d 536; and LeBlanc, Inc. v. Gulf Bitulithic Co., Tex.Civ.App., 412 S.W.2d 86, ref., n.r.e. In response, the plaintiff makes what will be considered alternative contentions.