Travelers' Ins. Co. v. Peters , 18 S.W.2d 590 ( 1929 )

LEDDY, J.

We are satisfied with the correctness of our former opinion holding against plaintiff in error on the questions raised by it.

In the motion for rehearing a question is presented for the first time as fundamental error. It is complained that the verdict in favor of defendant in error is without pleading to support it, in that it was not alleged that the claimant was employed more than a year in his employment, or that his employment was for less than one year, the only allegation in this particular being as follows: “Plaintiff alleges and shows to the court that the average weekly wage earnings of the deceased were and are the sum of $30.00 per week.”

This alleged error was not raised in the Court of Civil Appeals, nor did plaintiff in error include the same in its petition for writ of error to the Supreme Court. The rule is established that the Supreme Court will refuse to consider an error urged by a plaintiff in error as fundamental, if not presented in his petition for writ of error, unless he is the prevailing party in the Court of Civil Appeals. Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185; Link v. City of Houston, 94 Tex. 382, 59 S. W. 566, 60 S. W. 664; Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

Plaintiff in error was not the prevailing party in the Court of Civil Appeals; hence we are without authority to consider the alleged error, even though it be a fundamental one.

We recommend that the motion for rehearing be overruled.