On Rehearing.
DIXON, Chief Justice.Both appellant Mayflower Investment Company and appellee Russell S. Stephens have filed motions for rehearing.
Appellant’s Motion.
In appellant’s motion its first point is that we erred in holding that appellant’s action in amending its answer constituted an abandonment of its right to have a common boundary specifically determined.
Appellant’s original answer is not copied into the record. But it evidently included a cross-action in trespass to try title, for it was upon appellant’s request that the trial court appointed a surveyor pursuant to Rule 796, Texas Rules of Civil Procedure. The Rule is applicable only in trespass to try title cases. That appellant’s original answer included a count in trespass to try title is also asserted by appellee in his brief, and the assertion is not challenged by appellants.
Though appellants in their amended answer did make allegations in regard to the boundary line, they omitted their cross-action in trespass to try title. The suit thus became simply a suit for damages for trespass. And under the circumstances it was not necessary to determine the boundary line, for as Justice Thomas points out in our original opinion, the undisputed evidence showed that there were trespasses on appellee’s land even if we accept appellants’ contention as to the location of the boundary line.
That this was simply a suit for damages and not a trespass to try title or a boundary suit, is further indicated by the fact that the present owners of the lots' abutting appellee’s property to the east were not made parties. Since tire trespasses were committed appellants have divided the property into lots and blocks and have sold the lots to various purchasers who have built houses on their ■ lots. If appellants or appellee were suing in trespass to try title, or to settle a boundary suit these various present owners of abutting lots, would in all reason, have to be made parties to the action. But no one has objected to their absence as parties.
In its fifth point on rehearing appellant Mayflower says that it was error to submit special issue No. 1A inquiring as to whether appellants committed one or more trespasses on appellee’s land, because (1) it involved a mixed question of law and fact; (2) the phrase “one or more” suggested to the jury that there was at least one trespass on appellee’s land; (3) it was a mere evidentiary issue and was not given or used in connection with any claim of actual damages sustained; and (4) it was without any guide to the jury whereby it could determine from facts in evidence whether there was in fact a trespass.
We see no merit in appellant’s fifth point on rehearing. As to appellant’s contention numbered (2) : the undisputed evidence shows that there was not only one, but there were several trespasses committed by Mayflower. As to appellant’s contentions numbered (1), (3) and (4) : if for the sake of argument we were to accept said contentions as correct we would have to hold that the submission of the issue was harmless error, since it was an immaterial superfluous special issue which neither helped nor hindered the jury in the discharge of its duties.
Appellant Mayflower’s other points on rehearing have been considered and are overruled.
*797Appellee’s Motion.
In his first point on rehearing appellee says that we erred in holding there was “no evidence” to justify the trial court’s judgment for exemplary damage against Mayflower because there (a) was evidence which required the submission of the issues relating to exemplary damages, (b) the evidence was not against the great weight and preponderance of the evidence and hence was not insufficient to support the verdict of the jury, (c) Mayflower’s points on appeal did not raise or present the question of “no evidence” on appeal, and (d) Mayflower’s points insofar as they relate to the evidence question complain only of the “insufficiency” of the evidence and the Court of Civil Appeals was not authorized to consider a point of “no evidence” because the same was not raised by appellant on appeal.
Appellee’s first point on rehearing refers to appellants’ tenth point on appeal in their original brief in which point appellant, Mayflower, asserts that the trial court erred in submitting special issues Nos. 11A, 11B and 11C pertaining to exemplary damages “because the evidence was wholly insufficient to raise any issue of evil intent, or the equivalent of evil intent, on the part of Mayflower Investment Company in doing the things inquired about in other issues submitted to the jury.” (Emphasis ours.)
The question then is: In sustaining appellants’ tenth point were we authorized to hold that there was “no evidence” to support submission of special issues Nos. 11 A, 11B and 11C?
The terms “no evidence” and “insufficient evidence” have been the subject of much discussion in judicial opinions and law review articles. The latest expression on the subject to come to our attention is contained in an article by Chief Justice Robert W. Calvert of our Supreme Court in Texas Law Review Vol. 38, No. 4, for April 1960. We quote from that article:
“It was thought that the per curiam opinion of the Supreme Court in In re King’s Estate [150 Tex. 662, 244 S.W.2d 660] and the publication of former Associate Justice Garwood’s excellent article, The Question of Insufficient Evidence on Appeal, would resolve, both for lawyers and judges of Courts of Civil Appeals, most of the problems growing out of points of error challenging a verdict or judgment because of a lack of evidence or lack of sufficient evidence to support it, or because it is contrary to the great weight and preponderance of the evidence, but a growing number of recent decisions indicate a continuing misunderstanding in some quarters of the nature and office of points of error of that type, justifying, it seems to the writer, a somewhat more analytical discussion of the subject. * * *
“Under the injunction of Rule 1 that the Rules of Civil Procedure be given a liberal interpretation ‘to obtain a just, fair, equitable and impartial adjudication of the rights of litigants,’ magic in words in points of error should be as extinct as the dodo bird. In his article Justice Garwood referred to two types of points, i.e., ‘no evidence’ points and ‘insufficient evidence’ points. Expressions in points of error such as ‘no evidence,’ ‘insufficient evidence,’ ‘no sufficient evidence,’ ‘no legally sufficient evidence,’ ‘against the great weight of the evidence,’ ‘contrary to the preponderance of the evidence,’ ad infinitum have definite connotations in the mind of an appellate judge, but, except in a very limited way, they are not, or at least should not be, controlling. The controlling consideration with an appellate court in passing on a point of error directed at the state of the evidence is not whether the point uses the preferable, or even the proper, terminology, but is whether the point is based upon and related to a particular procedural step in the trial and appellate process and is a proper predicate for the relief sought. * * *.
*798“No Evidence Points
“1. Procedural Basis for Points.
“ ‘No evidence’ points of error are inherently and fundamentally points which call for reversal of a trial court’s judgment and rendition of judgment for the appellant. They must, therefore, be based upon and related to one or more of the following procedural steps in the trial Court: (a) motion for instructed verdict; (b) objection to the submission to the jury of a vital fact issue; (c) motion for judgment notwithstanding the jury’s verdict; (d) motion to disregard the jury’s answer to a vital fact issue. All are steps which must be taken before the rendition of judgment.
“If a point is based upon or related to one or more of those steps it is a ‘no evidence’ point, and the fact that the point may speak of ‘insufficient evidence’ or ‘no sufficient evidence’ cannot make it otherwise. In whatever language the point may be couched, its essence is that there is an absence of proof of a vital fact, and that the trial court erred in not rendering judgment for the appellant. On the other hand, a point of error not based upon or related to one or more of the enumerated procedural steps simply cannot be a ‘no evidence’ point, irrespective of how it is worded.”
It is only when there is no evidence to raise an issue about a vital fact that the court may refuse to submit a special issue inquiring about it. If there is some evidence raising the issue of fact it is the duty of the court to submit a special issue about it, though later it may become the duty of the court to set aside the jury’s answer on the ground that the answer is so contrary to the overwhelming weight and preponderance of the evidence as to be obviously unjust. Therefore, there would be no point in objecting to the submission of an issue on the latter ground.
Applying the test laid down by Chief Justice Calvert we must hold that since appellant’s point is directed at the submission to the jury of a vital fact issue, it is a “no evidence” point, and the fact that the point asserts that the evidence was wholly “insufficient” cannot make it otherwise. In other words, when appellant attacked the submission of the three special issues on exemplary damages the essence of its point was that there was no evidence to support the submission of the issues notwithstanding the way it worded its point. That being so it was not error to apply the “no evidence” rule in passing on the point.
Appellee insists that there is evidence in the record to support the jury’s findings of exemplary damages against Mayflower Investment Company. Two of the corporation officials, Carr P. Collins, President, and Lee Brady, Vice-President, were on the scene nearly every day during the construction of the ditch in controversy. Certainly they saw it being dug. But we find no testimony to support a finding that they knew, and through them the corporation knew, that their operations trespassed on ap-pellee’s land. And in the absence of some testimony that the two officers or the corporation either knew and authorized the trespasses, or ratified them, or showed a reckless disregard of whether or not they trespassed on appellee’s land, the corporation cannot be held liable for exemplary damages.
Appellee calls our attention that the costs in the trial court in this case amount to $389.65. This includes an item of $310 for the fee paid to the surveyor appointed by the court over appellant’s objection, pursuant to Rule 796, T.R.C.P. at a time when appellants had on file a cross-action in trespass to try title. Later appellants amended their pleadings and eliminated their cross-action in trespass to try title.
We agree that appellee ought not to be required to pay one-half of the trial court’s expenses. The costs will therefore be retaxed as follows: all costs incurred in the trial of the case in the District Court will be taxed against appellants; costs in*799curred in connection with the appeal will be taxed one-half against appellants and one-half against appellee.
All of appellee’s points on rehearing have received our consideration.
Appellant’s motion for rehearing is overruled. With the exception of the retaxing of costs as above stated, appellee’s motion for rehearing is overruled.
WILLIAMS, J., not sitting.