J. Weingarten, Inc. v. Moore
| Decision Date | 14 January 1970 |
| Docket Number | No. B--1628,B--1628 |
| Citation | 449 S.W.2d 452 |
| Parties | J. WEINGARTEN, INC., et al., Petitioners, v. Herma Lee MOORE, Respondent. |
| Court | Texas Supreme Court |
Vinson, Elkins, Searls & Connally, B. Jeff Crane, Jr., and Raybourne Thompson, Jr., Houston, for petitioners.
Helm, Jones & Pletcher, George E. Pletcher, Houston, for respondent.
Herma Lee Moore has recovered judgment in this suit for damages against J. Weingarten, Inc. and Paul W. Jones. She sustained a serious injury to her back while employed by Weingarten as a grocery checker. Weingarten was not a subscriber under the Workmen's Compensation law of this state. The judgment was predicated upon jury findings that the job requirements and the design of the check-out counter, in addition to a failure to give proper instructions, constituted negligence on the part of Weingarten. The court of civil appeals has affirmed the trial court judgment. 441 S.W.2d 223. We affirm as to Weingarten but reverse as to Jones.
Weingarten advances several points contending that there is no evidence to support the jury's findings and the court's judgment. However, as the court of civil appeals has held, these points were not preserved in the trial court and cannot now be considered.
Weingarten's motion for new trial complains of a number of rulings of the trial court. The first paragraph in this motion for new trial asserts that the trial court erred 'in overruling and failing to sustain this Defendant's Motion for an Instructed Verdict * * *' Weingarten's motion for instructed verdict set forth two grounds, one of which was that the suit was instituted more than two years after the cause of action accrued and the other was that 'there is no evidence that this defendant, its agents or employees were guilty of any negligence proximately causing such injury * * *.'
Under Rule 374, Tex. Rules of Civil Procedure, and the holdings of this court, objection to an error of the trial court is not preserved by mere reference in the motion for new trial to a prior motion, even though the prior motion did make a particular objection clear and certain. The motion for new trial must itself specify each ground of error to be preserved. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).
Defendant Jones sought a new trial in the trial court in a separate motion on the ground that no finding of the jury supported a judgment against him. This contention has been continued through the steps of the appeal and is entitled to consideration.
Jones was a Weingarten employee who headed a company section called the Customer Employee Insurance Service. He figured prominently in the case on the limitation...
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