*1 PERALES, рarte Ex Relator. Juan OWENS-CORNING FIBERGLAS No. D-1063. Relator, CORP., Texas. Supreme Court of v. Sept. 1991. CALDWELL, Judge Neil Hon.
23rd District Court Brazoria
County, Respondent.
No. D-0882.
of Texas.
Court
ORDER
corpus of
petition for
On
writ
habeas
19, 1991.
June
Perales,
the Court has
relator Juan
relator
proceedings in which
viewed the
contempt
adjudged to be
erred
that the trial court
concluded
finding
contempt
Ex
relator
absentia.
Bean,
Risley,
Johnson,
F.
parte
Frank M.
Kevin
Thomas
Lawrence
Houston, respondent.
PER CURIAM. proceeding re-
In this mandamus imposed by lator seeks review of sanctions CAHILL, Appellant, respondents discovery. abuse of v. (Tex.App.1991). We believe al., LYDA, Appellees. oppor- et the trial court should D.M. rulings tunity to reconsider the of which No. 3-88-236-CV. complains proceeding light relator in this Texas, Appeals of Downey, opinion today in Braden Austin. (Tex.1991). Accordingly, staying proceedings vacate our order 23, 1991. Jan. petition for deny leave file this writ Rehearing Opinion Motion for mandamus, addressing its mer- without Aug. again prejudice without relator its and requesting relief from the has had this Court after thе rulings. its opportunity reconsider *2 persons for an unknown
time unknown general- corresponded purpose. fence ly description the metes and bounds tract, 177-acre but on the east side the adjacent fence enclosed an additional McGinnis,Lochridge Hughes, Kil- D.L. & interior 15.332 acres. No fence divided Austin, *3 gore, appellant. for tracts, and noth- 177-acre 15.332-acre and ing ground boundary a else marked Stump, Stump Stump, George- & W.R. between them. town, appellees. Marjorie Cahill in L.C. Cahill married POWERS, GAMMAGE and Before dwelling They in a 1943. lived thereafter
JONES, JJ. parcel situated on a five-acre within the 177-acre tract but outside the smaller tract ON REMAND 1975, in of 15.332 acres. L.C. Cahill died passed by acres and his interest POWERS, Justice. present Marjorie. will to She filed the suit Marjorie Cahill sued the record owners 1980, against in claiming numerous individ- of a 15.332-acre tract land establish prescriptive a uals and their unknown heirs in prescriptive herself a title under the ten- under the ten- title to the 15.332-acre tract 1, year art. statute. Tex.Rev.Civ.Stat. § shall, year statute.2 for convenience We 5510, repealed, now [since the “record only, refer to the defendants as codified as amended Tex.Civ.Prac. & owners.” (1986 Supp. 16.026 and Rem.Code Ann. § Trial was court without 1991) before j.1 The court concluded she did Only At jury. Marjorie adduced evidence. clаim, the elements of her and establish evidence, the trial the conclusion of In judgment accordingly. Cahill’s rendered Marjorie had declined to find that points (1) court appeal, brings two of error: she any court proven facts from which necessary elements she established she established the could conclude that had law; as matter of and that the trial ten-year elements of her claim under necessary failure find the ele- court’s Court, to this appealed statute. She great weight contrary ments was to the tending she established such elements and preponderance the evidence. We law, alternatively, as matter of judgment will affirm below. find the ele- the trial court’s refusal great her ments of claim THE CONTROVERSY weight preponderance of the evidence. 1933, purchased from L.C. Cahill M.W. Marjo- opinion, first Rutledge comprising land In our we sustained tract of because, point acres, set first of error in according description to a out rie’s adduced, she she had Rutledge’s conveyance. An old sur- view of evidence fence regarding her prima facie case pur- made a rounded the tract at time title; was, chase, prescriptive to a she there- having at an uncertain claim been erected 2. Tex.Rev.Civ.Stat. opposing nience, however, were [since represented appeared and answered by attorney, appear.” suit; served citation record owners and their unknown heirs repealed, others appointed by the after Some an were now codified as attorney engaged by being § as the "record owners." of the record owners were represented by declares shall refer to the by publication, art. "duly and court. that all at 1554 amended as legally For person them “parties” parties conve- cited or Tex.Civ.Prac. & Rem.Code Ann. & provided ward. therefor of action shall have Any person adverse aments recovery Supp.1991) enjoying ... in relevant possession [******] within ten ]. who lands, another has the same, statute part: thereof, years accrued, tenements shall having peaceable and right next after at the time of trial cultivating, institute his suit of action for the § 16.026 or heredit- not after- his cause (1986 using fore, ror, complexity entitled to matter of theory as a is not free opposed by practice. give should law when evidence was not our views in contrary impeached any evidence and not matter. Be- or contradicted her own evidence. find The trial declinеd to error, point cause we sustained her first from the evidence ultimate facts neces not necessary it was to decide her second sary Marjorie to sustain her to a claim point of error. words, prescriptive the trial title. error, On writ of Court of declined, all; no facts at it “found” holding judgment,
Texas reversed our
rather,
any
find
facts from
the evidence
Marjorie’s undisputed
did not
evidence
nevertheless,
practice,
adduced.
In the
appropriation
show actual and visible
as Marjorie’s point of error is
classified as
law,
considering
a matter
such evi-
all
insufficiency” point of
“factual
error.
dence. While the court
have con-
must
Marjorie carried the
burden
evidence,
only
all
sidered
referred
*4
proof.
obliged
She was
to adduce evidence
following
regarding
its determination
the
persuade
judge,
and
the trial
of
(1)
taxes,
as the trier
matters:
the
of
payment
Cahills’
instance, concerning
fact in this
the ulti
standing alone, was not
to estab-
sufficient
necessary
mate facts
claim;
sustain her claim
lish her
found
case had been
to a prescriptive title under
ten-year
the
“that establishes whether
modifi-
or when
statute.
assails on
She
the trial
‘designed
a
cation
fence to
make
a
[of
judge’s
necessary
choice
to infer the
requires
finding
a
of adverse
enclosure’]
ultimate
from her undisputed
facts
evi
law”;
possession as a matter
and
of
situation,
point
dence. In this
her
of error
though
even
the
evidence showed
Ca-
amounts to a contention that
the nature
hills had cleared and sold
trees from
cedar
evidence,
her
land,
quality of
absence
verify
could not
whether
evidence,
any contrary
impeaching
of
disputed
trees
been taken from the
justice compelled the trial
tract,
court to infer
could,
but even if she
isolated
one
action,
elements of
cause of
even
commercial sale and
clearing”
a “selective
though these were not
of
established “as
grazing purposes
land
is not suffi-
McDonald,
matter
4
of law.”
Texas
cient to show
Civil
possession
adverse
over a
18.14,
(rev.
1984).
at 318
period
Practice
ed.
ten-year
as a matter of
§
law. Rhodes
Cahill,
since The Appeal, Evidence on of Insufficient WHETHER THE TRIAL-COURT JUDG- (1962). We are indebt Tex.L.Rev. MENT IS AGAINST THE GREAT Judge analysis ed to Garwood for the we WEIGHT AND PREPONDERANCE employ. now THE OF EVIDENCE proper review, scope of appellate may appeals a court of How assess concerning Marjorie’s point fact, second er- judge whether the trier instance, by prejudice, sympathy actuated or other reached decision motive, and, so, why”? if incorrect ... We simultaneously a decision
facts that judge infer reach” cannot was actu- minds could “which reasonable by any kind. hold something ated motive yet “clеarly product accordingly Marjorie’s and overrule second acknowledging its than reason”? While point of error. imperfection, Judge suggested a Garwood ap- “subjective approach.” The court of AND THE COURT COSTS FEES OF place position peals itself in the should AD THE ATTORNEY LITEM finder, then ask itself the trial-court fact this, the same whether it would reached our second In connection evidence, decision, did the appeal, from the actu- the record owners sideration is regarding al finder in the case. If the answer court costs and complain fact anew “yes,” obviously the trial-court ad litem. the fees “no,” invоlved; If is the court of trust quite stands. the answer is we will matter itself the actu- forgiven should ask whether if refer to it some detail. contrary chronological al fact finder’s decision must so in order. We do by prejudice, sympa- “have been actuated In the Trial Court motive, and, if
thy ... or other incorrect assessment, so, making why”? its provisions of Tex.R.Civ.P.Ann. appeals might variety consider appoint an oblige trial court to factors, apparent character of such as: the represent attorney ad a defendant consistency of their witnesses and by publica- citation made when service of *5 any generally ac- testimony; inherent or appear the defendant does tion and improbabilities; cepted probabilities and prescribed present time. In the within the any history; of notorious facts life and record owners and their unknown the only the was direct whether evidence in man- with citation this heirs were served circumstantial; positive character of the the they appear failed to within ner. When exclusively the proof on one side versus time, prescribed appointed the trial court other; negative proof character attorney ad litem them. relevant consideration is and so on. One provision: 244 contains this also Rule appeals “probably this: the court of should attorney court shall allow such “The [ad reluctant to remand for a new trial” be less services, to a reasonable fee for his litem] originally by facts found the when the are final as of the costs.” The part be taxed appellate judge trial than the court “would attorney ad litem judgment orders that the jury if a verdict were involved.” Id. be pro- from unspecified sum the paid be 811-13. in the the from sale of tract ceeds obtained the in the course of dispute, which occurred first, opinion, unpublished In our we being proceeds litigation, thе of the balance length ad at some the evidence reviewed according to paid to the record owners absence of by Marjorie, noting the duced in the respective ownership interests their any contrary impeaching evidence. in judg- these were determined tract as below, reach of the conclusion we view will be discussed For reasons that ment. can summary of the evidence serve another hereafter, attorney ad appears say in purpose. it to no useful Suffice directed, paid, judgment as the litem was strong very Marjorie established a our view judg- in trial court. The for his work concerning of her the elements case indeed ordering that the costs ment concluded prescriptive under the ten- claim a title proportion in parties “taxed year statute. Had been property, in the respective interests to their fact, would not have reached trier of suit.” subject this judge as the trial the decision reached provisions of Tex.R.Civ.P.Ann. The in this instance. We are the trier fact trial court clerk of the direct the the trial left then to ask ourselves whether final every in which a in case “tax the costs must “have been judge’s contrary decision points The judgment appel- has been rendered.” the unknown heirs.” The two present together. in the late record case includes were briefed include, bill of clerk’s costs. It does not argued in The record owners substance however, designated sum a fee any as upon imposed that Rule 244 trial attorney ad litem. mandatory attorney duty to allow the ad as been costs; So far we have able to determine fee, litem a to be taxed as reasonable record, from the the fee for the consequently, imposed upon this impliedly attorney a disputed ad litem was never appeals mandatory duty the court in the court. matter cause remand the on its own initiative to attorney the trial that the ad order Appeals the Court of might recover sum work appeal. done own- Marjorie appealed to this from him record acknowledged ers judgment awarding their brief “that there title to the prior pleadings invoking record owners exist no and a distribution them of designated jurisdiction regard pro- prospec- shares of the sales Court’s appeal payment attorney ceeds. record owners did not tive of the litem’s any aspect below; manner, judgment from fees.” In this there arose for rather, they prayed in their brief that it “be time thе case matter first things in all affirmed.” In our first opin- expenses ad li- fees ion, we reversed the trial-court tem. judgment awarding and rendered title to adjudging costs cause Marjorie, holding based on our that she had questioned never court. been prescriptive established her as a title mat- Any regard error in that “is inherent ter of law she prima when: adduced a assigned prop- must case; facie her evidence was not erly brought up any ' opposed by (the any evidence record own- alleged Reaugh error in the case.” trial) ers adduced no evidence at and not Co., Exploration McCollum 140 Tex. or impeached by contradicted her own evi- (1943). Because dence. record this had been owners conceded *6 Court, In this taxed we the costs the done, obliged we to view their motion were of against owners, pursu- the record rehearing for as that deter- request a we requirements ant to the Tex.R.App. of original mine the amount of as an matter 89 (Pamph.1990), provides P.Ann. which attorney fee for the ad litem’s reasonable that, on judgment, reversal of part appellate and that sum as work award the appellant shall be entitled to the “costs were, of appeal. of the on costs by appeal,” occasioned such provided that course, that for required reject to claim nothing in the Rule “shall be construed to thing request- authority want to do the of impair power limit or the of the court of Accordingly, ed. the motion we overruled appeals to otherwise tax good the costs for rehearing. for cause.” Supreme the Court In rehearing their motion for in this
Court, assigned the record applied owners Su- five The to the record owners points error, pertained They of of which in- preme two to of error. for writ Court attorney points court costs and the fees of the apрlication ad two cluded in their They complained litem. stated first that “erred our decision error. The first assessing against merits, Marjo- costs the unknown on held that the which we heirs, personal judgment no as can be ren- as prescriptive rie title had established dered heirs complained unknown law. The second matter of costs”; they assessing stated second that we had costs that we “erred “erred declining by publica- remand the case to the Defendants cited unknown court li- attorney attorney for assessment of tion.” matter of ad The attorney fees representation appellate ad litem’s tem’s wоrk and his fee for regard stated, expenses in in the that raised For reasons we reverse the appeals Supreme point under this and Court second remand cause that error. sideration Mrs. Cahill’s factual suffi- argument In their under their second points. ciency error, point of again record owners added). (Emphasis The Supreme Court’s previous pleading conceded mandate to this Court orders as follows: case had invoked their claim for a fee for the court of work; attorney appellate ad litem’s reversed; argued they again theory that their The cause is remanded the Court of cоurt, mandatory duty imposed upon trial Appeals for the Third District for a con- implied duty imposed upon Rule sideration of Mrs. Cahill’s factual suffi- cause, appellate to remand the ciency points; initiative, its own to the trial court for the et shall Elisha Rhodes al. recover from calculation, award, taxing such a fee Cahill, pay, who shall the costs They prayed Supreme costs. in this Court. Court remand the “to the trial court cause costs, including any in order that the fu- opinion Supreme of the Court omit- litem, ture fees incurred the ad can be why ted to refer to the reasons we declined way comport аssessed as to such requested attorney the relief for the ad 244.” Rule litem: we could not remand cause the trial court for the award of an addition- rejected Apparently, Supreme Court sum, attorney appel- al for the ad litem’s part least a of the record owners’ re- expenses, late work and related when these quest theory. did re- That court had not been awarded in trial court and mand the cause to the trial court for the point subject of a made error determination of a reasonable fee and its power appeal; and we lacked the Instead, Supreme award. Court fee ex- ascertain and award such a Court, manded the cause to this after re- matter, penses power as an versing our judgment on record own- being exclusively in vested court. point ers’ first of error. opinion, however, In its Following Remand to the attorney the matter of the discussed Appeals Court of ad expenses litem’s fee and under the head- adjudi to us for cause returned ing Litem,” saying: “Ad by the cation under the mandate issued remanding this cause to the court of Supreme The record owners have Court.
appeals,
disapproval
note our
again
attorney
ad
claimed a feе for
appellate
court’s refusal
award the
litem for his
work and
*7
his
litem
fees....
The court refused to
They
by
do
a motion entitled
expenses.
so
Attorney
ad
deposit
from the
in
Ad
award
fees
to Allow
“Motion
Fees
court,
registry
of the
which
attor-
Costs Advanced.”
Litem
argues
ney
contrary
ad litem
is
to Rule
motion,
state
the record owners
In their
244 of
Texas
Rules
Civil Proce-
motion “to recover reason-
they submit the
dure.
rendered and to allow
able fees for services
attorney ad litem would not
Litem and
law firm
Attorney
Ad
[Because
contingent-
pursue
accept
appointment
advanced to
recоver Court costs
basis,
Continuing,
practical
appeal.”
the motion avers
is the
result
this
fee
which
“in
paid
firm
court-of-appeals decision,] “good
the law
has
$155.00
that
costs,
reimbursed
sum should be
assessing
such costs
... which
cause” for
[sic]
Cahill”;
appellant,
by
firm
parties
successful
under Texas
said
attorney
“expend-
firm had
141 and
that an
Rule of Civil Procedure
Texas
in connection
ed in excess of 132 hours”
Appellate
Procedure 89
ordi-
Rule
error;
that
narily
in
circumstances.
with the
and writ
shown
such
.00017857,
parties
expenses
amounted
to of
which
wish us to
miscellaneous
$174.96;
firm
change
that
had received
to .000168642. The letter statеs
$3,827.18
“should
credited
which
that the “corrections”:
owed”;
the amount
and that the law firm
necessary as the evidence showed
are
judgment,
therefore entitled to
Byrom
children of James
one of the
Jen-
in
prayed,
which the firm
the amount of
kins,
Benjamin Gray Jenkins had nine
$3,897.18.
$10,675.56less the credit of
children,
whom,
one of
Meda Jenkins
prayer that the net
motion concludes with a
Quisenberry.
married Emmitt
Meda Jen-
$6,848.38
paid out of
sum of
“be ordered
in
Quisenberry
kins
died intestate
and deducted from the shares of those un-
leaving her husband
no children sur-
but
represented by the At-
known defendants
viving. Under the
of descent and
laws
torney
prior
Ad Litem
of the
to distribution
distribution thе husband would have in-
same.”
( n )
herited one-half of her
in-
one-ninth
reiterate: The
We
record does
question
in the land in
and his
terest
that
the trial court deter-
show:
advertently
in
name and interest were
evidence,
upon
upon
mined
some
omitted from the fractional shares.
[sic]
basis,
what sum constitutes a “rea-
Quisenberry
The omission of Emmitt
led
attorney’s
any
sonable”
fee for
additional
miscalculation, in
evidently to the
a similar
required by
attorney
work
ad litem on
interests,
way, concerning
percentage
appeal,
expenses might
and what
he
the let-
of all 18 individuals. We consider
connection;
incurred in that
joint
parties
ter to
motion
party
appeal assigning
either
took an
as
requesting a reformation of the trial-court
any
error
trial-court determination relative
judgment.
attorney’s
expenses.
to such
fees and
McKrell,
Bennett v.
135 Tex.
question.
We overrule the
motion
(1940),
Supreme
do
Court con-
requested
so
the basis that the relief
judgment awarding party
sidered
a one-
scope
the motion is not
within the
taking
mandate
third interest in
lots
unambiguously
directed us to
certain
without
Marjorie’s
insufficiency”
consider
“factual
into account the fact that there had been a
point of error
prop-
and did not mention thаt we
reservation of the minerals under the
should consider the
requested
erty.
parties agreed
relief
in the
motion.
v. East
Wall
Texas Teachers Court that the
was erroneous
Union,
(Tex.Civ.
Credit
agreed attorneys in” the *8 substituting by reformed the fol- by signatures indicated their on the letter. subparagraphs “a” lowing in lieu of percentage The “corrections” alter the through “d”: assigned figures to the 1. The Court finds the heirs of James ownership interests of some individuals Jenkins, respective Byrom and their Byrom who are the heirs of James Jenkins. ownership pro- example, judgment assigned Joyce percentage said For Manning ownership interest of sale are as follows: Jenkins an ceeds Manning .000168642 a. Jenkins Joyсe Garwood, suggested by Judge ner .000168642 Julia Dean Price “manifestly unjust” point of error she Montgomery .000168642 Jenkins Shirley brought to this Court. She avers that the Ruth Jenkins Cox .000168642 .000168642 Jenkins Ballard Patsy method, Judge part second Garwood’s .000168642 June Jenkins Robinson i.e., inquiry whether the fact finder .000168642 Jenkins Jimmy by “prejudice, must have been actuated subject to the The above interests are mother, sympathy or other incorrect motive” to of the life estate of their value did, (Vs) as it is inconsistent with the clude Jenkins for life in one-third Thelma requirement in v. Ford Motor Com- Pool .0011111 interest of Marion Jenkins’ pany, 715 S.W.2d remainder to said said land with the requires appeals, Pool decision of said dе- persons, children above-named factual-sufficiency reversing when cedent. grounds, to: .0003935 b. William E. Hood .0003935 Charles Hood to the issue detail the evidence relevant McCullough .0003935 Lois Irene Hood Faught why .0011805 clearly Alma Jenkins state consideration McWright Dannar .00059025 Kathy finding factually insufficient jury’s McWright .00059025 Barbara Danel against great weight or is so Emmitt .0005555 Quisenberry manifestly as to un- preponderance be two named The interests above conscience; or just; why it shocks the subject to the McWright children are val- ( n ) clearly demonstrates bias. life estate interest ue of one-third mother, McWright Nancy Burson their Pool, at 635. ancestor, interest оf their on the .0011111 Marjorie, According to the second McWright, in the above Nina Jenkins suggested inquiries Judge two Garwood to said property with the remainder over greater places appellant burden two children. requires although Pool does than Pool — .0011805 Jenkins e. Wilburn Henry require a court of to find bias not Ford .0011805 Herma Jenkins .0011805 d. Thomas Jenkins Gray (as finding may of fact overturn before .0011805 Thelma J. Mary Kanetzky preceding “or” by disjunctive indicated judgment as reformed. We affirm the “clearly demonstrates expression bias”), required allegedly that bias we have GAMMAGE, J., participating. opinion above no see be shown. We for this contentiоn. basis FOR REHEARING ON MOTION article, Evidence on In his showing Insufficient required We have Judge endeavored Appeal, supra, Garwood Rather, may we have stated that bias. practical courts of supply trial court’s determination not reverse a cases, the applying, in concrete method for reached the not have unless we would appellant’s presented abstractions conclude the and we same determination failure to that a trier-of-fact’s contention by some im was actuated determination great weight is so find a fact bias, might sym motive, proper which as to preponderance оf the evidence any other ex prejudice, or pathy, passion, Following sugges- manifestly unjust. In improper consideration. traneous and that, tion, although we would we concluded improper motive is not proof of dependent the same determination reached not have course; appeals may a court of required, of trier-of-fact, reached as that de motive from the factual improper infer deter- impute to the trier-of-fact’s could not in the trial court sim reached terminations sympathy or other any “prejudice, mination in the case. light of all the evidence ply therefore overruled motive.” We incorrect Bright, 156 S.W. T. C. R. Co. Houston & Garwood, assignment of error. Marjorie’s ref’d) (Tex.Civ.App.1913, writ supra, at 812. aside a (“This authority to set court has great preponder rehearing, Marjorie verdict motion for [as] preponder- testimony unless ance of the resolving, in the man- contends we erred
399 remit- reviewing to order a pas- prejudice, enable as to indicate anee is such motive.”). titur.1 improper or other sion is a Judge supplied The method Garwood any necessi next that Marjorie contends designed prevent to practical one elimi showing improper motive was
ty for trial-court intruding into the appeals from analysis sufficiency” from a “factual nated a factual in an effort to correct domain Moore, 711 Pope v. by the decision might have led to that determination remittitur In that S.W.2d 622 and Pool noth- Pope see injustice. We the Pool supreme applied method that the Garwood ing to indicate instructions, above, stating that quoted accordingly and over- hold erroneous. We prej passion, find courts need not “P]ower rehearing. Marjorie’s motion rule udice, improper or other motive Id. a remittitur.” jury’s part to order owners, in motion for record languagе, con do not 624. We believe opinion “de- hearing, part of our assail the Pool conjunction in sidered in recov- clining permit attorney ad litem to structions, practical method nullified the representation er his fees for Pool Firstly, Judge suggested. Garwood of court.” We heirs as costs unknown requirement eliminate the that purports to understanding our best have set out above or a passion, prejudice, court find previous opinion supreme court’s ordering a improper motive other before attorney’s concerning matter of such remittitur, speak purport it does not adhere to costs in this cause. We fees and appellate court’s review of the evidence holding our that reasoning above and determi supporting a trial court’s factual scope such relief “is not within Pope language Secondly, nations. unambiguously directed us mandate light understood in of the decisions must be insufficiency’ Marjorie’s ‘factual consider proposition therein for the that a trial cited that we did not mention point of error and judge improper need not find an motive requested in the the relief should consider ordering These deci before a remittitur. attorney’s fees and regarding motion” Carswell, Flanigаn sions are 159 Tex. rehearing does not costs. The motion 598, 835, (1959), 324 841 later “over S.W.2d holding. Over six months speak to this ruled to the extent it advocates a holding publish- passed since varying standard for remittiturs from that 23, January 1991. opinion filed ed in an in Pope,” Larson v. Cactus enunciated changed the supreme court has not Co., (Tex.1987), Utility 640 has been mandate so far as this Court Ry. Farns Dallas & Terminal Co. v. provid- informed, although ample time was worth, 584, 1017, Tex. 227 S.W.2d overrule the therefore ed therefor. We (1950). rehearing. motion record owners’ Flanigan simply states there need
not be extraneous evidence passion, J., GAMMAGE, participating. prejudice, improper or other motive before appeals may
a court of sustain relying on the Farns- remittitur,
order of
worth holding that the amount of the ver-
dict, light evidence in the of all the
record, may supply sufficient evidence of improper motive to
passion, prejudice, Farnsworth, damages clearly appears are supreme that the Flanigan where it 1. Before 297, Hicks, excessive, may regarded to grossly Co. v. 129 Tex. that fact court in World Oil (1937), had stated: reflecting the failure some extent as affirmatively testimony passion apply [P]rejudice jury appreciate must be shown; of the verdict in itself liability, excessiveness question and a new it, flagrantly it is so does not establish unless C.J. may granted a condition. 446 without it cannot be accounted for excessive that any p. § that, ground; held but it has been