King's Estate, In re

• Decision Date: 05 December 1951
• Docket Number: No. A-3379,A-3379
• Citation: King's Estate, In re, 150 Tex. 662, 244 S.W.2d 660 (Tex. 1951)
• Parties: In re KING'S ESTATE. KING v. KING et al.
• Court: Texas Supreme Court

Page 660

244 S.W.2d 660

150 Tex. 662

In re KING'S ESTATE KING v.KING et al.

No. A-3379.

Supreme Court of Texas.

Dec. 5, 1951.

Rehearing Denied Jan. 16, 1952.

Harry Bunnenberg, Vernon, for petitioner.

Storey, Storey & Donaghey, Vernon, Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, for respondents.

PER CURIAM.

In this will contest, a district court jury found the testatrix, Mrs. Jessie King, to lack testamentary capacity, and judgment was accordingly rendered for the contestants against petitioner, Carl King, who defended the will.Petitioner by proper points in the trial court and Court of Civil Appeals sought (unsuccessfully) a new trial on the ground that the verdict was 'so contrary to the overwhelming weight of all the evidence as to be clearly wrong and unjust.'The Court of Civil Appeals affirmed the judgment of the trial court, except in certain particulars not presently material.242 S.W.2d 925.

In connection with petitioner's particular contention above-mentioned, the opinion of the court below correctly gives the wording of such contention.It also states that the contention is overruled.However, it further discloses beyond any doubt, that, in purporting to overrule the point, the court actually treated it as a question of law, to wit, that there was no evidence to support the verdict, rather than question of fact.The court clearly based judgment, in so far as the particular assignment is concerned, upon its application to the evidence of the legal proposition stated by it thus: 'If there is any evidence of probative force to support this finding of the jury, such finding is conclusive and binding on both the trial court and this court.'That rule, like the rule whereby the reviewing court looks only to the evidence favorable to the verdict, and the rule of whether reasonable minds could differ, applies, and applies only, to the question of whether the evidence as a matter of law requires a conclusion contrary to the verdict.Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 84, 37 S.W. 319;Id., 91 Tex. 406, 44 S.W. 69;Eastham v. Hunter, 98 Tex. 560, 565, 86 S.W. 323, 325;United States Gypsum Co. v. Shields, 101 Tex. 473, 477, 108 S.W. 1165;Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 58, 143 S.W. 1150;Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696;Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884;Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 511;Renfro Drug Co. v. Lewis, Tex.Sup., 235 S.W.2d 609, 613, 621;Gulf C. & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 59 S.W. 589, 591, er. dism.Such tests are not applicable to the question under consideration.The latter is one of fact.It is not infrequently described as a question of 'sufficiency' of the evidence.SeeHall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857;Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166.The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil ProcedureNos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust-this, regardless of whether the record contains some 'evidence of probative force' in support of the verdict.See cases cited, supra.The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.

The holding of the court below is assigned as error here.It is in effect an erroneous ruling of law that the existence of 'any evidence of probative force' in support of the verdict determines that the verdict is not 'contrary to the overwhelming weight of all the evidence.'It is in conflict with the avove cited decisions of this court.The holding also is tantamount to a refusal to pass upon the assignment in question in violtion of Rules 451 et seq., supra.

Under these circumstances, we may properly take jurisdiction of the case, notwithstanding the finality of judgments of the Courts of Civil Appeals on the fact question of whether a verdict should be set aside and a new trial granted on the ground that the verdict is against the overwhelming weight of the evidence.SeeDallas Ry. &...