Puryear v. Porter

• Decision Date: 10 February 1954
• Docket Number: No. A-4238,A-4238
• Citation: 264 S.W.2d 689,153 Tex. 82
• Parties: PURYEAR v. PORTER et al.
• Court: Texas Supreme Court

Page 689

264 S.W.2d 689

153 Tex. 82

PURYEAR v.PORTER et al.

No. A-4238.

Supreme Court of Texas.

Feb. 10, 1954.

Klett, Bean & Evans and Trout & Jones, Lubbock, Stephen L. Mayo and J. Edwin Fleming, Dallas, for Porter et al.

Bob Huff and J. H. Splawn, Jr., Lubbock, for Puryear.

CALVERT, Justice.

Our judgment affirming the judgment of the Court of Civil Appeals, 258 S.W.2d 182, which remanded this cause to the trial court for retrial was entered on December 2, 1953.Motions of both parties for rehearing were overruled on January 13th of this year without written opinion.Tex.Sup., 262 S.W.2d 933.

The Court of Civil Appeals' reversal of the trial court's judgment for plaintiff was permitted by us to stand on the sole ground that the evidence was insufficient to support the jury finding that the defendants' negligence was a proximate cause of plaintiff's injuries.

By his second motion for rehearing, and relying on the cases of Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884, Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632, andHale v. Texas Employers' Ins. Ass'n, Tex.Sup., 239 S.W.2d 608, the plaintiff suggests for the first time that we should have reversed the judgment of the Court of Civil Appeals and remanded the cause to that Court for further consideration.In his application for writ of error and his first motion for rehearinghe prayed only that the judgment of the Court of Civil Appeals be reversed and the judgment of the trial court be affirmed.

The cases cited undoubtedly stand for the proposition that while the judgment of a court of civil appeals is final and conclusive on a question of the sufficiency of the evidence to support a verdict, yet when it appears that its ruling on that question was based on a conception of the law held by this Court to be erroneous, this Court should remand the cause to that Court for consideration of the weight of the evidence under proper rules of law.

In this casewe held that in passing on the sufficiency of the evidence the Court of Civil Appeals erred in its conception of the law in two respects: first, in holding the testimony of doctors of medicine to be incompetent on the issue of proximate cause, and secondly, in holding that the testimony of such doctors had no relevancy or materiality on the issue of proximate cause as that issue was pleaded by the plaintiff and submitted to the jury.

If the first error were the only one involved we would not alter the judgment heretofore rendered...