ON MOTION FOR REHEARING
Mr. Justice Calvertdelivered the opinion of the Court.
Respondents’ motion for rehearing presents new reasons why the judgment of the Court of Civil Appeals should not have been reversed. Two of them are regarded as sufficiently serious to justify writing on rehearing.
It is contended for the first time that petitioner’s motion for instructed verdict did not specifically direct attention of the trial court to respondents’ failure to prove the amount of the policy coverage as was required by Rule 268, Texas Rules of Civil Procedure. It is then argued that because of that deficiency in the motion this Court erred in holding that it should have been sustained.
*66The record before us at the time the case was decided on original submission disclosed that petitioner filed two motions for instructed verdict, one when respondents rested their case and the other when the evidence in the case was closed. While both motions were devoted primarily to pointing out to the Court that the proof offered failed to establish that damage to respondents’ building was caused by lightning, the first motion contained the statement that respondents had failed to bear , the burden of proof placed upon them of pleading “and proving a contract of insurance * * * and a loss and damage within the contract coverage * * * .” The first motion for instructed verdict was copied in full as the first ground in petitioner’s motion for new trial. One of the points of error presented in its brief by petitioner as appellant in the Court of Civil Appeals was that the trial court erred in overruling its motion for instructed verdict. That court overruled the point of error and in so doing pointed out that while the amount of the policy coverage was not otherwise proved it “was supplied by the verified proof of loss showing the total amount of insurance to be $40,000.” 318 S.W. 2d 464, 468. By proper point of error in its application for writ of error petitioner preserved the question for review by this Court and specially contended both in its application and in a supplemental brief that there was no competent evidence offered establishing the amount of coverage. Respondents filed an answer to the application and two supplemental briefs. In neither the answer nor the supplemental briefs did respondents suggest that the question was not properly preserved in the motion for instructed verdict. The question was made the subject of special inquiry from the bench during oral argument of the case. It was not then suggested by counsel that the question had not been properly preserved. Until after the case was decided on original submission respondents at all times treated the question as being properly preserved for review by this Court, and, as pointed out in our opinion, sought to supply the absent proof in various ways.
4 On the foregoing statement of the record and proceedings in the case, respondents will not now be heard to say that the question decided by the court was not properly preserved for review because the motion for instructed verdict was not sufficiently specific to meet the requirements of Rule 268. It is unnecessary for us to decide whether the motion was sufficiently specific to comply with the Rule. Having briefed and orally argued the merits of the question and having thus made themselves a party to obtaining a decision of it, respondents are simply not in position to assert that the matter was never prop*67erly before the Court and that both they and the Court were tilting at windmills. By their conduct they have waived their right to complain at this late hour of the generality of the motion for instructed verdict.
5 Respondents also now contend, for the first time, that the figures shown in the proof of loss are secondary evidence of the amount of coverage provided in the policy and that secondary evidence of the contents of a written statement, admitted without objection, is given probative force by our courts to sustain a judgment. That proposition is undoubtedly sound when the secondary evidence is otherwise competent.
In 17 Texas Jur. 497, Evidence, Sec. 195, the rule is stated to be that “secondary evidence admitted without objection, when competent,1 may be considered when passing upon the sufficiency of the evidence to prove a fact or sustain a judgment.” McCormick and Ray in Texas Law of Evidence state that the terms of a “document may in general be proved by any competent evidence,” Sec. 1577, and when secondary evidence is adnlitted without objection it will be considered on the same footing as other competent evidence if it is “only subject to objection under a technical rule of preference.” Sec. 1579.
An example of the type of secondary evidense which is given probative force, when it is otherwise competent, is found in Matlock v. Glover, 63 Texas 231; Brown v. Lessing, 70 Texas 544, 7 S.W. 783, (so far as may be determined from the opinion); Long and Berry v. Garnett, 59 Texas 229; Missouri, K. & T. Ry. Co. v. Dilworth, 95 Texas 327, 67 S.W. 88; Sloan Lbr. Co. v. Southern Ornamental Iron Works, Texas Civ. App., 66 S.W. 2d 722, no writ history; Christie v. Hudspeth Co. C. & R. List. No. 1, Texas Civ. App. 64 S.W. 2d 978, no writ history. In each of the cited cases a witness was permitted to testify, without objection, to the contents of a written instrument. The testimony was not excludable on the ground that it was hearsay and therefore incompetent because it was given in court under oath by a witness who was subject to cross-examination. The only tenable objection which could have been urged to the testimony was that it was not the best evidence of the terms and provisions of a written instrument.
6 If the recitations contained in the proof of loss be considered as having been offered to prove the terms of the insurance *68policy, they are clearly hearsay and therefore incompetent. It does not alter the rule that the person who signed the proof of loss was sworn and testified as a witness on the trial. McCormick and Ray, Texas Law of Evidence, Sec. 785. This Court has said that “When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force.” Henry v. Phillips, 105 Texas 459, 466, 151 S.W. 533, 538. There are cases by Courts of Civil Appeals in which it appears that probative force was accorded hearsay evidence of the provisions of a written instrument but we are aware of no case in which this Court has done so. On the contrary it has refused to do so. Texas Co. v. Lee, 138 Texas 167, 157 S.W. 2d 628. See also Richards v. Rule, Texas Com. App., 207 S.W. 912. We hold that hearsay evidence not coming within some exception to the hearsay rule and which is therefore incompetent will not support a judgment even when offered as secondary evidence of the terms of a written instrument.
We have also examined the other assignments of error in respondents’ motion for rehearing and find in them no sound reason for granting the motion. The motion for rehearing is accordingly overruled.
Opinion delivered June 24, 1959.
. — Emphasis ours throughout.