Brockman v. J. Weingarten , 115 S.W.2d 753 ( 1938 )

On Motion for Rehearing. It is wholly immaterial in the present case that appellants' propositions 1 and 2, as formerly quoted, were stated in an abstract form, since their real complaint in that behalf was against the trial court's having granted a peremptory instruction against them at the close of their own evidence only — they having duly excepted to that action when granted, having further brought up a formal bill against it, together with assignments further challenging it in their brief; the record thus indisputably showing, as recited in our original opinion, that the motion therefor had been so presented and granted at the close of appellants' evidence and before any had been tendered by the appellee, it amounted to a demurrer to the sufficiency of the appellants' evidence to raise any material issue of fact in the cause; wherefore, if any such issues were raised thereby, the court's ruling was obvious error. Donaldson v. Oak Park Cemetery, Tex.Civ.App. 110 S.W.2d 119; Pilz v. Steinberger, Tex.Civ.App. 113 S.W.2d 573, 576.

That the particular issues of fact pointed out in this court's original opinion were so raised is even plainer to it now, after painstaking re-examination of the record and statement of facts herein, in the light of the appellee's typewritten motion for rehearing of 39 pages, and of appellants' like answer thereto of 23 pages; not only so, but these extended arguments upon, citations to, and quotations from, such records have enabled this court, upon this reconsideration, to authoritatively verify — and to reiterate the correctness of — all its stated findings in the first instance, except as to these two inconsequential details: (1) The citation to Young v. Seaboard Air Line Ry. Co., given as 75 S.W. 190, 55 S.W. 225, should have been 75 S.C. 190, 55 S.E. 225; (2) the statement that Mrs. Brockman testified on cross-examination that she did not know how or why she fell should have been that she so testified on direct-examination.

The repeated assertions of appellee's counsel in his motion for rehearing that this court went out of the record to determine this appeal upon matters and evidence not appearing therein is inept, to say the least of it, as is unmistakably demonstrated by the question and answer citation of the evidence supporting each and all of its criticized findings in the reply to his motion so filed herein by the appellants; it therefore becomes unnecessary to do more here than to advert to such detailed record.

Appellee's counsel, in inveighing so earnestly against these findings, appears to have been under the impression that it was still necessary, under the procedural requirements obtaining for the appellants to have brought up separately formal bills of exception to the exclusion and striking out of much of the supporting evidence for our former findings, to entitle them to a review of the trial court's action in that respect; that procedure, however, is now obsolete as a compulsion under R.S. Art. 2237, subd. 2a, as added by Acts 1931, 1st Called Sess., c. 34, § 1, and article 2239, as amended by Acts 1931, 1st Called Sess., c. 34, § 3, Vernon's Ann.Civ.St. art. 2237, subd. 2a and article 2239, which changed requirements were fully met by the appellants in this instance; in other words, the testimony this court based its original findings upon was fully detailed by the witnesses on the stand in question and answer form, with the objections and arguments of counsel thereon, as well as the judge's rulings, followed by the appellee's exceptions in the same way; further, all these proceedings were brought here in a stenographic question and answer statement of facts, which bore the signed approval of appellee's counsel herein, following the overruling below of a motion for new trial that specifically assigned as error the trial court's action in each instance.

Being unconvinced of error in the original disposition of the cause, the motion for rehearing will be refused.

Refused.

PLEASANTS, C. J., absent.