Houston Ladder Mfg. Co. v. Slats-O-Wood Awning Co.

On Appellee’s Motion for Rehearing

On reconsideration of this record, it is concluded that this court was — under the provisions of Rule 374, Texas Rules of Civil Procedure — without jurisdiction to consider the one question upon which it formerly reversed the trial court’s judgment herein, to wit: Whether or not the jury’s finding on Special Issue No. 11 was so against the great weight and preponderance of the evidence as to make it clearly wrong.

This was a jury case, hence the provisions of new Rule 374, to the effect that a ground of error not distinctly set forth in the motion for new trial in jury cases must be considered as waived, controls it.

The late authorities of our courts construing that provision seem to make it reasonably clear , that the Court of Civil Appeals may no longer, in such specific circumstances, exercise its authority in a proper case to set a jury’s finding aside as being iso against the overwhelming weight of the evidence; among such authorities are these: Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857; Cotton v. Cooper, Tex.Civ.App., 160 S.W. 597, affirmed, Tex.Com.App., 209 S.W. 135; Texas & P. Ry. Co. v. Corn, Tex.Civ.App., 110 S.W. 485, affirmed 102 Tex. 194, 114 S.W. 103; Texas & P. Ry. Co. v. Raney, 86 Tex. 363, 25 S.W. 11; 3 Tex.Jur. 225; McWilliams v. Adoue, Tex.Civ.App., 51 S.W.2d 1104; McDonald v. Simons, Tex.Com.App., 280 S.W. 571; Sibley v. Continental Supply Co., Tex.Civ.App., 290 S.W. 769; Scott v. Waldrop & Co., 8 S.W.2d 552; Texas Indemnity Insurance Co. v. Warner, Tex.Civ.App., 159 S.W.2d 173, refused want of merit; Bauguss v. Bauguss, Tex.Civ.App., 186 S.W.2d 384; and AAA Air Conditioning & Manufacturing Corp. v. Barr, Tex.Civ.App., 186 S.W.2d 825.

Further, since under the jury’s finding in response to Special Issue No. 11, that ’appellant led the appellee reasonably to believe that it would accept shipments of extension-ladder rails made after February 28, 1947, and since the failure to ship them prior thereto was all appellant sued for, it follows that the trial court’s judgment should be affirmed.

It will be so ordered. Appellee’s motion for a rehearing is granted; this court’s former judgment of reversal is set aside; and the trial court’s judgment is affirmed.