Even if it were sustainable, the appellant should have given the trial court an opportunity to correct the alleged error prior to a review by this Court. See Miller v. Gahagan, 316 S.W.2d 160 (Tex.Civ.App. Fort Worth 1958, no writ); Miller v. Long-Bell Lumber Co., 217 S.W.2d 867 (Tex.Civ.App. Amarillo 1949) aff'd 148 Tex. 160, 222 S.W.2d 244 (1949); Daniel v. Fry, 195 S.W.2d 155 (Tex.Civ.App. San Antonio 1946, writ ref'd n. r. e.). Since Wise failed to perfect this point of error, the point must be overruled.
The purpose of a motion for new trial as a prerequisite to an appeal is to insure that the grounds of error to be made the basis for a reversal shall first be called to the attention of the trial court, in order that such errors may be corrected without the expense and delay of an appeal. Rule 324, T.R.C.P.; City of Fort Worth v. Hill, Tex.Civ.App., 306 S.W.2d 817; Daniel v. Fry, Tex.Civ.App., 195 S.W.2d 155. Believing that the trial court correctly held that the two-year statute of limitation did not preclude recovery by appellees, and that there is no other point which we may properly consider, the judgment is affirmed.
"* * * provided that it shall not be so prerequisite where a peremptory instruction is given, a case is withdrawn from the jury and judgment is rendered by the court without a jury, a judgment is rendered, or denied, non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, * * *." Daniel v. Fry, Tex.Civ.App., 195 S.W.2d 155, er. ref., N.R.E.; Traders General Ins. Co. v. Scott, Tex.Civ.App., 189 S.W.2d 633, er ref., N.R.E. The jury found that there was a 5% total incapacity to the body generally in its answer to special issue No. 5.
Points one to seven inclusive complain of the court's refusing to sustain appellant's motion for an instructed verdict and its motion for judgment non obstante veredicto. It filed such motions but it does not appear from the record that either was ever called to the attention of the court and there was no ruling made on either. These points cannot be considered. Wheeler v. Wallace, Tex.Civ.App., 167 S.W.2d 1043; Daniel v. Fry, Tex.Civ.App., 195 S.W.2d 155, writ refused, n. r. e.; Greathouse v. Texas Public Utilities Corporation, Tex.Civ.App., 217 S.W.2d 190, writ refused, n. r. e. Other points complain of a failure to sustain exceptions to parts of appellee's answer wherein she plead representations by the agent of the seller which were not embraced in the written contract, the admission of testimony in support thereof, and the submission of same to they jury and findings thereon.
The motion must be granted. Rule 324, Texas Rules of Civil Procedure; Daniel v. Fry, San Antonio, Tex.Civ.App., 195 S.W.2d 155 (Writ Ref.N.R.E.). See Miller v. Long-Bell Lbr. Co., Tex.Sup., 222 S.W.2d 244, and Traders & General Ins. Co. v. Scott, Ft. Worth, Tex.Civ.App., 189 S.W.2d 633 (Writ Ref.W.O.M.).
In other words, if there was an error in this respect, it was waived, since the trial court had no opportunity, by the failure to present such an objection there, to correct it. Rule 374, Texas Rules of Civil Procedure; Daniel v. Fry, Tex. Civ. App. 195 S.W.2d 155 (error ref., n.r.e.). At much length, however, the appellant's brief contends that the issue of "control," as given by the court, was the ultimate issue-of-fact in the cause, and that the issues of "speed" and "lookout" were merely subsidiary and evidentiary, hence as such should not have been submitted below, and should now be disregarded upon appeal.
The appellees' first counter point is sustained and the judgment of the trial court must, therefore, be affirmed. Traders General Ins. Co. v. Scott, Tex. Civ. App. 189 S.W.2d 633, 635, writ of error refused for want of merit; Daniel v. Fry, Tex. Civ. App. 195 S.W.2d 155, 156, writ of error refused, no reversible error.