Summary
In Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967), the Supreme Court held that legal sufficiency complaints can be made for the first time in a motion for new trial.
Summary of this case from French v. BrodskyOpinion
No. B-143.
May 24, 1967. Rehearing Denied June 21, 1967.
Appeal from the 38th District Court, Kerr County, Marvin Blackburn, Jr., J.
Jack M. Glover, Galveston, for petitioners.
Groce, Hebdon, Fahey Smith, Edward P. Fahey, San Antonio, Allison Wallace, Kerrville, for respondents.
Plaintiffs used for personal injuries arising out of a head-on collision. Judgment was for the defendants by reason of jury findings that (1) the defendant driver was not negligent in the manner in which he drove his car, (2) the plaintiff, Gilbert Rosas, was negligent in the manner in which he drove, and (3) plaintiffs, Gilbert and Evangalene Rosas, were on a joint enterprise at the time of the collision. Plaintiffs urged in the court of civil appeals that the findings had no support in the evidence. The intermediate court affirmed the judgment because the plaintiffs failed to preserve their points either by motion for instructed verdict, objections to the issues, or motion for judgment notwithstanding the verdict. Plaintiffs did, however, file a motion for new trial and distinctly complained that each of the findings had no support in the evidence. Since plaintiffs' contentions were made clear to the court in time for the court to correct any error, if any existed, there was a predicate for the 'no evidence' points on appeal. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 758 — 759, 81 A.L.R.2d 1180 (1960). The judgment of the court of civil appeals is correct, however, since there was evidence in the record which absolved the defendant driver of negligence.
The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.