I concur in the reversal, but rather reluctantly in the rendition. The Appellant's brief presents nine points of error. Every point begins "The Trial Court erred in Overruling the Appellant's Motion for New Trial on the ground that * * *," and then specifies the asserted error. A motion for new trial seeks just that, a new trial; but in this case, sustaining a point of error complaining about overruling a motion for new trial results in a rendition! This bothers me and undoubtedly will shock counsel for the Appellee.
It should be noted that the Appellant did file a motion for judgment n.o.v. and there asserted that there is no evidence to justify a finding of the causal connection between the injury and the death of the deceased. The argument in support of the point sustained may be a "no evidence" contention. It states in part:
" * * * The cause of death was myocardial infarction. The only testimony was that myocardial infarction is related to arteriosclerosis. There is no evidence that this disease resulted from hypertension.
"Thus the Appellee's testimony, considered alone, was insufficient to support any jury verdict. Taken in connection with testimony of Dr. Franks, the Appellee's contentions were totally disproved."
At least, the only case cited, Webb v. Western Casualty and Surety Company, 517 S.W.2d 529 (Tex. 1974), is a "no evidence" case. The Prayer at the end of the brief did ask that the judgment be reversed and rendered, and, alternatively, a remand for a new trial.
This Court has followed the dictates of the Supreme Court and looked beyond the point of error to the argument to determine the issue presented.1 We have followed the language in Airway Insurance Company v. Hank's Flite Center, Inc., 534 S.W.2d 878 (Tex. 1976), that a prayer for rendition, with a proper procedural basis therefor, usually indicates that the complaint relates to a "no evidence" point.
But in doing all of this, we have rendered the point of error which we sustained meaningless. We have also placed ourselves in direct conflict with the statement in French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. Houston (1st Dist.) 1975, writ ref'd n.r.e.), that "if the point of error in the brief is directed only to the asserted error of court in overruling motion for new trial, the appellate court can only remand and cannot render the case if the point is sustained."
Part of the problem results from Appellant's counsel's failure to comply with Rule 418(b), Tex.R.Civ.P., which, at the time these briefs were filed in 1977, required a showing that the point was germane to an assignment of error. This is a recurring problem in many cases. See Thomas v. *Page 402
Morrison, 537 S.W.2d 274 at 281 (Tex.Civ.App. El Paso 1976, writ ref'd n.r.e.). Had the point shown to have been germane to a motion for judgment n.o.v., then the Appellee and this Court would have been alerted to a "no evidence-rendition" point. Had it been shown to be germane to an assignment in the amended motion for new trial, everyone would have known it was a "remand" point. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex. 1968).
Realizing the requirements of Rule 1 for a liberal construction of all rules and the reasoning behind the results in Fambrough and O'Neil, it must be noted that every "liberal construction" which aids an appellant in obtaining a reversal necessarily makes it more difficult for the appellee to obtain an affirmance. In this case, where every single complaint in the points of error was with regard to overruling a motion for new trial, was Appellee alerted to a possible rendition? Obviously so under the cases noted in the footnote, but not from the points of error.
If points of error are to be meaningless, then perhaps we should do as we have done with motions for new trial, and no longer require them as a part of the appellate process. Another alternative is to consider only the points presented on appeal, and only consider those points which are now properly referenced to the record under Rule 418(d). Let us enforce the rules as written or not have the rules!
It is submitted that Courts reviewing cases on appeal should be able to expect that attorneys will properly assign errors for appeal in a motion for new trial and write artfully drawn points of error asserting the complaint they expect the appellate Court to review. But, obviously, the trend is in the other direction, i. e., abolishing the notice of appeal, doing away with motions for new trial, eliminating the need to designate the instruments in the transcript, and making points of error meaningless. It would seem that every effort is made to provide for appeals by laymen, and not those in a profession.2