dissenting.
I respectfully dissent. I would join in the majority opinion if I thought the points of error which have been sustained were properly before us, but I have concluded that they are not, and therefore we should not sustain those points of error.
The Appellant filed a motion for new trial in which he stated: “There was absolutely no evidence to support the jury’s answers” to the questions “inquiring the duration of total incapacity and whether the injury was a producing cause of any partial incapacity.” After making reference to the medical evidence and the jury’s answer, the conclusion in that paragraph of the motion for new trial states:
Therefore, there is no evidence and certainly insufficient evidence to support the said jury answers.
The first two points of error in the Appellant’s brief are as follows:
POINT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL AND IN ENTERING JUDGMENT ON THE JURY VERDICT FOR THE REASON THAT THE JURY FINDING THAT APPELLANT SUFFERED NO INCAPACITY BEYOND THE 16TH DAY OF APRIL, 1986, IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND IS MANIFESTLY UNJUST.
POINT OF ERROR NO. 2
THE FAILURE OF THE JURY TO FIND THAT APPELLANT HAD SUFFERED ANY INCAPACITY BEYOND APRIL 16, 1986, IS CONTRARY TO THE OVERWHELMING WEIGHT AND PREPONDERANCE OF THE EVIDENCE AND IS MANIFESTLY UNJUST.
The Appellee argues that the Appellant has failed to preserve error as required by Tex.R.Civ.P. 324(b)(3), which is a prerequisite to a complaint on appeal “that a jury finding is against the overwhelming weight of the evidence.” Since April 1, 1984, Tex. R.Civ.P. 324(b), has provided that a point in a motion for new trial is a prerequisite to the following complaints on appeal:
(2) A complaint of factual insufficiency of the evidence to support a jury finding;
(3) A complaint that a jury finding is against the overwhelming weight of the evidence;
The Supreme Court has seen fit to make these separate issues just as are the other three issues listed in paragraph (b).
The Court has even gone further, and in adopting Tex.R.App.P. 52(d), specifies that:
A point in a motion for new trial is a prerequisite to appellate complaint in those instances provided in paragraph (b) of Rule 324 of the Texas Rules of Civil Procedure.
We recognize that the Supreme Court of Texas has adopted a liberal rule with reference to the construction of points of error, and we will pass on the merits of a point in the light of the statement and argument thereunder. O’Neil v. Mack Trucks, Inc., 542. S.W.2d 112 (Tex.1976). But, in this case, we are not dealing with a question as to the construction of a point of error but with a question of an assignment of error in a motion for new trial. While the Supreme Court has liberalized the manner in which points of error may be considered, it has required considerable specificity in the assignments of error in the motion for new trial.
In the amendment to Tex.R.Civ.P. 324, which became effective on January 1, 1978, the Court totally abolished the requirement that there be an assignment in a motion for new trial in order to complain on appeal “that one or more of a jury’s findings have insufficient support in the evidence or against the overwhelming preponderance of the evidence....” That rule resulted in some confusion which the Court clarified in *329Howell v. Coca-Cola Bottling Company of Lubbock, Inc., 599 S.W.2d 801 (Tex. 1980). Prior to the 1978 amendment, the rules certainly required that a motion for new trial “specify each ground on which it is founded and no ground not specified shall be considered.” Wagner v. Foster, 341 S.W.2d 887 (Tex.1960). As that opinion states, a ground of error not distinctly set forth was considered as waived. With the adoption of the 1984 amendment to Rule 324, the Court chose to return to at least some areas of specificity of grounds of error in a motion for new trial. It chose to specify five particular complaints which must appear in a motion for new trial in order to serve as the basis for a point of error. The two points of error which the majority have sustained are not based upon any ground in the motion for new trial even though Rule 324(b) and Rule 52(d) both make that requirement.
The 1984 amendment is clearly consistent with prior opinions by the Texas Supreme Court and its recognition of a difference between an “insufficient evidence” point and a “great weight” point of error. In Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983), the Court at page 58 said:
Mrs. Croucher also complained to the Court of Appeals that “there was no, or insufficient, evidence of lack of testamentary capacity to support the jury finding.” Those points of error are appropriate when the party without the burden of proof complains of a jury finding. When, however, the party having the burden of proof appeals from an adverse fact finding in the trial court, the point of error should be that the matter was established as a matter of law, or that the jury’s finding was against the great weight and preponderance of the evidence.
In applying the present rule, the court in Friedman v. Houston Sports Association, 731 S.W.2d 572 (Tex.App.— Houston [1st Dist.] 1987, writ ref’d n.r.e.) said:
A point in a motion for new trial is a prerequisite to a complaint on appeal that the jury finding is against the overwhelming weight of the evidence.
In an extensive article dealing with this issue, the members of the bar have been warned of the necessity that a point of error be germane to an assignment of error in the motion for new trial. M. O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65 at 69 (1974). The author in that article said:
The wording of the assignments in the motion for new trial is crucial — if appellant does not use the correct terminology he loses what could have been a meritorious point of error.
While we recognize that the standard by which the record is to be reviewed (all the evidence) is the same under an “insufficient” assignment and a “great weight” assignment, the rule clearly specifies that a point in a motion for new trial must specify each of these issues in order to complain about such issue on appeal. Because the “great weight” issue relates to all the evidence, including that offered by the complaining party, and the “insufficient” issue only relates to the evidence offered by the non-complaining party, the rule separates the assignments of error into two separate and distinct issues. As noted by no less an authority than our former Chief Justice “there is a distinction between them.” Robert W. Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359, 366 (1960). We may not now amend the rule, rather we must follow it and the eases like Friedman which hold that a point in a motion for new trial is a prerequisite to a complaint on appeal that the jury finding is against the overwhelming weight of the evidence. I still believe “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.” Texas Employers’ Insurance Association v. Stodghill, 570 S.W.2d 398, 402 (Tex.Civ.App.— El Paso 1978), reversed, Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102 (Tex.1979). Points of Error Nos. One and Two are not based upon a *330valid assignment of error in the motion for new trial and should not be sustained.