Warner Construction Co. v. Blue Diamond Co.

ON REHEARING

In our main opinion delivered April 19, 1968 we pointed out that we found no objections in the record to the submission of the first, second and sixth special issues.

Subsequently on May 3, 1968 the trial judge directed that a supplemental transcript be prepared and filed pursuant to Rule 428, Vernon’s Texas Rules of Civil Procedure. On the same date the supplemental transcript containing copies of ap-pellees objections to the court’s charge was filed in this court in connection with ap-pellee’s motion for rehearing.

Appellant has filed a motion to strike the supplemental transcript on the ground that the instrument was filed too late. Appellant cites Cannon v. Canida, 321 S.W.2d 631 (Tex.Civ.App., Texarkana 1959, writ ref’d n. r. e.). We have also considered the holdings in Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App., Corpus Christi 1964, writ ref’d n. r. e.) and Gale v. Spriggs, 346 S.W.2d 620 (Tex.Civ.App., Waco 1961, writ ref’d n. r. e.).

The holdings in the above cases are not applicable here. In none of the aboye cases did the appellant comply with the requirements of Rule 272, T.R.C.P. by having the dictated objections to the charge transcribed and signed by the judge and “filed with the clerk in time to be included in the transcript.” (Emphasis ours.)

In the case now before us appellee did comply with Rule 272, T.R.C.P. Appellee’s objections were dictated before the reading of the charge to the jury. The dictated objections to the charge were transcribed, signed by the judge and filed with the clerk on July 27, 1967. The judgment was signed September 6, 1967. The transcribed objections were certainly filed and signed in time to have been included in the original transcript. Appellant’s motion to strike is overruled.

It now appears from the record that ap-pellee objected to the submission of the first issue on the grounds that there were no pleadings and no evidence and that there was insufficient evidence to raise the fact issue. Appellee objected to the second issue on the grounds that said issue was a comment on the weight of the evidence, presumes an affirmative answer to the first issue, and that the issue submits the wrong measure of damages. We see no reversible error on the part of the court in overruling *917the above objections. Appellee’s counterpoints are overruled.

The supplemented record fails to show that any objections were made to the submission of the sixth special issue.

The motion for rehearing is overruled.