A-6665 | Tex. | Feb 26, 1958
J. J. MORREALE, Petitioner,
v.
Sam COHEN et ux., Respondents.
Supreme Court of Texas.
Phipps & Smith, Galveston, for petitioner.
Levy & Levy, Galveston, Jerry M. Hamovit, Houston, for respondents.
PER CURIAM.
Upon evidence which in all material respects is closely analogous to that shown by the record in the present case, it was held in Welch v. Ada Oil Co., Tex. Civ.App., 302 S.W.2d 175" date_filed="1957-04-04" court="Tex. App." case_name="Welch v. Ada Oil Company">302 S.W.2d 175 (wr. ref. n.r.e.) that the trial court properly refused to submit issues of discovered peril. We approve that holding and do not agree with the contrary conclusion reached by the Court of Civil Appeals in the present case. 308 S.W.2d 63" date_filed="1957-11-07" court="Tex. App." case_name="Cohen v. Morreale">308 S.W.2d 63. It appears, however, that respondents' points attacking the verdict as against the overwhelming preponderance of the evidence were also sustained. Since the latter ruling is not subject to review here and the case must be retried in any event, the application for writ of error is refused, no reversible error. We can express no opinion, of course, as to whether the discovered peril issues will be raised by the evidence on the second trial.