Summary
In 131 Tex. 537, 117 S.W.2d 56, this holding was commended, although the application was insufficient to give jurisdiction over the writ of error.
Summary of this case from Jennison v. DarnielleOpinion
No. 7077.
Decided June 1, 1938.
1. — Application for Writ of Error — Appeal and Error.
Where application for writ of error fails to state that a motion for rehearing was filed in the Court of Civil Appeals, and also fails to state that the particular decision or ruling sought to be reviewed was assigned in said motion for rehearing, it should be dismissed, as in violation of Rule 1 for the Supreme Court.
2. — Negligence — Proximate Cause — Charge of Court.
Where the only reasonable conclusion that can be drawn from the evidence shows that the negligence of the operator of a truck in driving it upon the public highway at night without lights was the proximate cause of the death of plaintiff's son, it was not necessary to submit the question of proximate cause.
Error to the Court of Civil Appeals for the Eleventh District, in an appeal from Zapata County.
Suit by Filemon Salinas and his wife against Leon J. Ramirez for damages because of the death of their minor son, who was fatally injured by the defendant when defendant negligently operated his automobile upon the public highway at night without lights, and ran over plaintiffs' child and killing him. The trial court rendered judgment for plaintiffs which judgment was affirmed by the Court of Civil Appeals ( 90 S.W.2d 891), and the defendant has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
The writ of error having been improvidently granted is dismissed.
Bismark Pope and Pope Pope, all of Laredo, for plaintiffs in error.
Kazen Kazen and Edward A. Mullally, all of Laredo, for defendant in error.
1 We find from examination of the application for writ of error, after submission of the cause, that the application was improvidently granted, because it fails to state, as required by Rule No. 1 for the Supreme Court, that the particular decision or ruling sought to be reviewed was assigned as error in motion for rehearing filed in the Court of Civil Appeals. The application for writ of error contains no reference to the motion for rehearing in the Court of Civil Appeals and does not state that a motion for rehearing was filed. It becomes necessary, therefore, to set aside the order granting the application and to dismiss it. Leonard Bros. v. Newton, 129 Tex. 1, 101 S.W.2d 223; Glenn v. McCarty, 130 Tex. 641, 107 S.W.2d 363, 110 S.W.2d 1148; Casualty Reciprocal Exchange v. Dawson, 130 Tex. 362, 107 S.W.2d 994.
2 We have, however, examined the transcript, the statement of facts and the briefs, and if jurisdiction of the cause were retained we would affirm the judgments of the trial court and the Court of Civil Appeals, on the ground that it was not necessary to submit to the jury the question of proximate cause, because the only reasonable conclusion that can be drawn from the evidence is that the negligence of the operator of the truck in driving it on the public highway at night without lights proximately caused the death of defendants in error's son. Texas Pacific Ry. Co. v. McCoy, 90 Tex. 264, 38 S.W. 36; St. Louis S.W. Ry. Co. of Texas v. Missildine, 157 S.W. 245 (application for writ of error refused); Crow v. Southwestern Transportation Co., 73 S.W.2d 607 (application for writ of error refused); International-Great Northern R. R. Co. v. Hawthorne, 131 Tex. 622, 116 S.W.2d 1056, decided May 25, 1938.
The order granting the application for writ of error is set aside and the application is dismissed.
Opinion adopted by the Supreme Court June 1, 1938.