On Motion for Rehearing.
PER CURIAM.In its motion for rehearing respondent points out that in its brief in the . Court of Civil Appeals it presented by separate assignments both the point that there was no evidence warranting the submission of Special Issue No. 1 to the jury and the point that the finding of the jury in answer to that issue was against the overwhelming preponderance of the evidence. Since the latter point presents a question, of fact, • this court is without jurisdiction to decide • it. The finding by the Court of Civil Ap- ; peals that there was no evidence warrant- ,- ing the submission of Special Issue No. 1 -. includes the finding that the answer of the.,-*808jiiry thereto was against the overwhelming preponderance of the evidence, or, as frequently stated, that the evidence was insufficient to support the finding. The established rule of practice in such cases, when this court decides that the Court of Civil Appeals erred in reversing and rendering the case on the ground of no evidence, is to reverse the judgment of that court and remand the .case to the trial court for a new trial. Lowry v. Anderson-Berney Building Co., 139 Tex. 29, 161 S.W.2d 459; State v. Birdette, 139 Tex. 357, 162 S.W.2d 932; State v. Gray, 141 Tex. 604, 175 S.W.2d 224; Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352.
'The Court of Civil Appeals reversed and remanded this case on another point. Its júdgment should, therefore, be affirmed. It is accordingly ordered that the judgment heretofore rendered by this Court be set aside and the judgment of the Court of Civil Appeals, reversing the trial court’s judgment and remanding the case for a new trial, be affirmed.
Dissenting opinion by Associate Justice CALVERT, in which Associate Justices GRIFFIN and WILSON join.