On Motion for Rehearing. Appellant has filed a motion for rehearing, in which it insists that we were in error in holding that the trial court properly *Page 551 refused to give a peremptory instruction in its favor; this is the only point involved in the appeal.
It is earnestly insisted that we have only referred to certain testimony which we considered sufficient, if believed by the jury, to support the verdict returned. It is further argued that we have ignored parts of the witness Jones' testimony, which contradicted those parts referred to by us, and have not mentioned nor considered testimony given by its witness, Mr. Bacon, which is in direct conflict with that part of Jones' testimony mentioned. Bearing in mind that the only question before us was whether or not the court erred in refusing the peremptory instruction, it was only necessary for us to determine whether or not there was a dispute of fact in the evidence, for a jury determination. We only referred to certain of the evidence to disclose that there was sufficient evidence before the jury to support its findings. It matters not, in such cases as this, how much evidence there is to the contrary, it was the function of the jury to weigh the evidence and to give credence to that part believed to have the greater weight. When this has been done, the Appellate Court may not set aside such a verdict, when there is any evidence of probative force to support it, and substitute its own opinion for that of the jury. Choate v. San Antonio A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824. Many other cases to the same effect could be cited.
Appellant contends that Jones' testimony referred to by us in the opinion, would not support the jury's verdict, because, they say, he gave contradictory evidence on cross-examination; that by so testifying, neither of his statements is entitled to credit; citing us to In re Gustav Schaefer Co., 6 Cir., 103 F.2d 237. We do not believe that case announces the correct rule in Texas. We think that under such circumstances a jury question is raised, and the jury may reconcile the conflict, if it can, and determine which, if either, statement is true. New St. Anthony Hotel Co. v. Pryor, Tex. Civ. App. 132 S.W.2d 620, writ refused; Foster v. Woodward, Tex. Civ. App. 134 S.W.2d 417, writ refused; Hyde v. Marks, Tex. Civ. App. 138 S.W.2d 619, writ dismissed, correct judgment; Heckert v. American Casualty Co., Tex. Civ. App.129 S.W.2d 424.
We believe we have properly disposed of the question involved, and have added these additional remarks and authorities because of the insistence of counsel for appellant, in their motion for rehearing.
The motion is overruled.
McDONALD, C. J., not sitting.