concurring.
I concur in the result of the plurality opinion. Our decision to remand this case to the court below is an unequivocal rejection of petitioner’s argument that the fact jurisdiction of the courts of appeals is limited to a review of affirmatively answered jury issues. Because the suggestion to the contrary in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), was not expressly disapproved, I write separately to emphasize that the courts of appeals possess equal power to review the sufficiency of evidence to support both “yes” and “no” answers.
Appellate courts have the authority to review the sufficiency of evidence in support of the fact finder’s determinations for one reason: to undo the effect of an unjust trial. See generally, Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803, 809 (1952). This traditional judicial function, now exercised only by our intermediate appellate courts, neither conflicts with nor infringes upon the right of trial by jury. No appeals court in Texas has ever been given, or has ever exercised, the authority to find any fact. The extent of an appellate court's power is, as it has always been, to remand for new trial if more than a scintilla of probative evidence exists to support the result reached by the jury.
This authority exists regardless of whether the court of appeals is reviewing a jury’s finding or its “non-finding,” that is, the failure of a jury to find a fact. In either case, the court is not substituting its own finding for the jury’s; it is merely ordering a new trial before another jury for a new determination.
The court of appeals must have this authority in order to do justice. Trials may be just as unfair when the party with the burden of proof unjustly loses as when the party with the burden of proof unjustly wins. To fulfill its constitutional responsibilities, the court of appeals must have authority to review both findings and non-findings. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973).
Petitioner’s attempted distinction is not only novel, it is impractical. In an earlier era of granulated issues, it might have been possible for an appellate court to confine its review to affirmative answers, while scrupulously ignoring negative ones. Such an artificial distinction, however, is impossible under the broad submission now mandated by our court. TEX.R.CIV.P. 279. When a defensive issue is submitted only by instruction, for example, the reason for a jury’s negative answer cannot be known. See generally, Island Recreational Development Corp. v. Republic of Texas Savings Assn., 710 S.W.2d 551, 557 (Tex.1986) (Spears, J., dissenting). Did the jury answer “No” because plaintiff failed to carry its burden by a preponderance of the evidence or because the jury found by a preponderance of the evidence that defendant established its defense? Under petitioner’s argument, the answer to this inso-luable and currently irrelevant query would assume constitutional dimensions.
I agree with the plurality opinion that the judgment should be remanded so that courts of appeals will have an opportunity to comply with the standards set down in our holding in Pool v. Ford Motor Co., supra. I disagree, however, with the suggestion that the court below has substituted its own findings for that of the jury. At most, the court of appeals employed a poor choice of words in summarizing the results of its review of the evidence. The court, writing without the benefit of Pool, did all that was then required of it to explain its decision to reverse and remand for a new trial. The inference that it exceeded its constitutional authority is unwarranted, and the lecture delivered by the plurality is undeserved. A simple remand to comply with our new requirements would suffice. Cf. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 594-95 (Tex.1986).
I believe that the court’s opinion today in Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 more accurately reflects both past and current Texas law in this area. Hence, I concur only in the result.
GONZALEZ, J., joins in this concurring opinion.