Garza v. Alviar

• Citation: 395 S.W.2d 821
• Decision Date: 03 November 1965
• Docket Number: No. A-10749,A-10749
• Parties: Raymond Remigio GARZA et al., Petitioners, v. Abelina ALVIAR et al., Respondents.
• Court: Supreme Court of Texas

Page 821

395 S.W.2d 821

Raymond Remigio GARZA et al., Petitioners, v. Abelina ALVIAR et al., Respondents.

No. A-10749.

Supreme Court of Texas.

Nov. 3, 1965.

Rehearing Denied Dec. 1, 1965.

Lloyd, Lloyd & Dean, Alice, Keys, Russell, Keys & Watson, Corpus Christi, for petitioners.

Perkins, Floyd, Davis & Oden, Alice, for respondents.

WALKER, Justice.

This is a personal injury action in which the trial court rendered judgment on the verdict for the defendants. The Court of Civil Appeals reversed such judgment and remanded the cause for a new trial, because it concluded that the evidence was factually insufficient to support the jury's finding of contributory negligence. 387 S.W.2d 905. In our opinion this question was not raised in the trial court or presented by the plaintiffs' brief in the Court of Civil Appeals.

Linda Alviar, a girl eleven years of age, was crossing Almond Street in Alice, Texas, when she was struck by an automobile owned by Remigio M. Garza and driven by his son, Raymond Garza. Suit was instituted by Linda's father, individually and as next friend for his daughter, against the Garzas to recover damages for her injuries. The jury found that Almond Street had been designated as one-way street for south bound traffic only, and that the accident was proximately caused by the negligence of Raymond Garza in driving north thereon. It also concluded that Raymond was driving at an excessive rate of speed, but refused to find that this was a proximate cause of the accident. All other primary negligence issues were answered favorably to the defendants.

The jury acquitted Linda of any negligence in failing to keep a proper lookout for her own safety and in failing to yield the right of way to the automobile. It also determined that while she was negligent in failing to cross the street at a regular crosswalk, such negligence was not a proximate cause of the accident. In response to Special Issues Nos. 14, 15 and 16, the jury found: (14) that just before the accident Linda ran from immediately behind a soda water truck, and (15) that this was negligence and (16) a proximate cause of the accident. The judgment of the trial court rests upon these three findings.

Plaintiffs went to the Court of Civil Appeals with seven points of error. Points Nos. 1, 2, 3, 4 and 6 were stricken by the intermediate court upon motion of the defendants. Plaintiffs were then granted leave to amend their brief, but no amendment was filed. After further consideration, the Court of Civil Appeals concluded that Point No. 4 challenged the sufficiency of the evidence to support the finding in response to Special Issue No. 15 that Linda was negligent in running from immediately behind the truck just prior to the accident. According to its opinion, the Court of Civil Appeals found 'that the evidence is insufficient to support the jury's answer to issue number 15' and on the basis of that holding reversed the judgment of the district court and remanded the cause for a new trial.

A statement in a point of error, or in the opinion of one of our intermediate appellate courts, that the evidence is 'insufficient' to support a finding by the trier of fact is often troublesome because of its ambiguity. It can mean that the evidence is legally insufficient, i.e., there is no evidence of probative force, to support the finding in question. When that contention is made, a question of law within our jurisdiction as well as that of the Courts of Civil Appeals is presented. In deciding that question, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. If a 'no evidence' point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment is usually rendered for the appellant unless the interests of justice require another trial.

On the other hand, an assertion that the evidence is 'insufficient' to support a finding of fact can mean that the evidence is factually insufficient, i.e., the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. When that contention is made at the appellate level, a question within the peculiar and conclusive factual jurisdiction of the Courts of Civil Appeals is presented. The intermediate court is required to consider all of the evidence in deciding the question. If the contention is sustained, the finding under attack may be set aside and a new trial ordered. Factual insufficiency of the evidence does not, however, authorize the court to disregard the finding entirely or make a contrary finding in entering final judgment for one of the parties. See Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Tex.Law Rev. 359; Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.Law Rev. 803; Gulf, C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 159 Tex. 238, 317 S.W.2d 913; In re King's Estate,...