On Motion for Rehearing
Appellees urge that our holding in the foregoing opinion is contrary to the provisions of Rule 434, Texas Rules of Civil Procedure and to decisions of the Supreme Court under said Rule. We cannot agree with that contention. The portion of Rule 434 to which appellees direct our attention reads as follows: “* * * no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * *.”
The quoted portion of Rule 434 is an exact reproduction of the proviso in Court of Civil Appeals Rule 62a, which was promulgated by the Supreme Court in 1912. 149 S.W. page x.
So, the provisions of this Rule have not introduced anything new into our procedure. For many years, at least since adoption of Rule 62a, our courts have passed on the matters in issue here, and have uniformly held as we have in this case. The holdings of authorities referred to in our original opinion are recognized as established law, and this decision is not in conflict with the cases cited by appellant. The opinion of this court is that the error pointed out in the original opinion “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment,” and this requires a reversal and remand of the cause. See also Texas & N. O. R. Co. v. Barham, Tex.Civ. App., 204 S.W.2d 205.
The motion for rehearing is overruled.