2 By his assignments of error and briefs in the Court of Civil Appeals, respondent, Earl M. Baker, presented to that court the contention that the evidence in this record is insufficient to support the findings of the jury to certain special issues submitted in the charge of the trial court; and, further, that such findings are against the great weight and preponderance of the evidence. The Court of Civil Appeals reversed and rendered this case on a ruling of law, and therefore did not pass on these assignments. The Court of Civil Appeals has exclusive jurisdiction to pass on the question of the sufficiency of evidence, for the purpose of determining whether or not it will reverse and remand to the district court for a new trial. Harris v. Ferguson, 137 Tex. 582, 156 S.W.2d 135; Long v. Long,133 Tex. 96, 125 S.W.2d 1034; Scroggins v. City of Harlingen,131 Tex. 237, 114 S.W.2d 583; Roberts v. Texas P. Ry. Co.,142 Tex. 550, 180 S.W.2d 330; Block v. Aetna Casualty Surety Co., 138 Tex. 420, 159 S.W.2d 470; Parks v. San Antonio Traction Co., 100 Tex. 222, 94 S.W. 331; Ellis v. Brooks,101 Tex. 591, 102 S.W. 94; McKenzie Construction Co. v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617; Henry v. Kirby Lumber Co., 110 Tex. 218, 215 S.W. 451.
We have read and carefully considered all other questions presented in the above-mentioned motion for rehearing, and still adhere to the views expressed in our substituted opinion.
It is ordered that the judgment of this Court and the judgments of the Court of Civil Appeals and district court heretofore rendered in this cause be set aside, and this cause is remanded to the Court of Civil Appeals with the following instructions:
1. If the Court of Civil Appeals finds the evidence insufficient to support the verdict of the jury in the trial court, it will reverse the judgment of the trial court and remand this cause thereto for a new trial.
2. If the Court of Civil Appeals finds the evidence sufficient to support the verdict of the jury, it will affirm the judgment of the trial court.
Opinion delivered December 6, 1944. *Page 202