223 S.W.2d 955 | Tex. App. | 1949
Joe Schmid brought this suit against F. A. Steinke in trespass to try title to a tract of land in Falls County. Defendant answered by plea of not guilty. Special Issue No. 1 of the court’s charge was: “Do you find from a preponderance of the evidence that defendant, F. A. Steinke, and Ed Schmid, in October of 1946, entered into a verbal contract whereby defendant, F. A. Steinke, was to lease the premises in question for a period of five years beginning on or about January 1, 1947”, to which the jury answered “No.” Since the jury answered the question “No” under the instructions of the court it was not required to answer any of the remaining issues. The judgment followed the verdict and defendant has appealed.
Appellant’s first point is: “Where the un-contradicted testimony showed that appellant leased the premises in question for five years beginning January 1, 1947 and went into possession and paid two year’s rent, the court should have enforced such agreement and rendered judgment for appellant.” We overrule this contention.
This point was not raised in appellant’s original motion, nor his amended motion for new trial. See Rule 324, Texas Rules of Civil Procedure. “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.” See Rule 374, T.R.C.P. See also Kendall v. Johnson, Tex.Civ.App., 212 S.W.2d 232, point 1; Glass v. Houston Singing Soc., Tex.Civ.App., 192 S.W.2d 300, point 4. We find that appellant made no motion for instructed verdict, nor did he file any exceptions or objections to the court’s charge, nor did he file motion for judgment non obstante veredicto. However, we have examined the testimony and it is without dispute that Ed Schmid died December 24, 1947 and appellee, the brother of deceased, inherited a share in the property and acquired the other shares by deeds from the other heirs. Appellee testified to the effect that he had a conversation with appellant in the early part of 1948, at which time appellant wanted to rent the place in question from him for the year 1949 and offered to pay appellee a cash rent for the place; that appellant did not say anything to him about having the property leased for a period of five years; that later on in the fall of 1948 appellant did claim that he had the place leased for a period of five years under an oral contract with appel-lee’s brother. This testimony alone was sufficient to tender Issue No. 1 to the jury. In 17 Tex.Jur., sec. 410, et seq., pp. 909,, 910 and 911, we find this statement: “If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict.” Moreover, if there is any evidence of probative value to support a jury verdict, it is the duty of the appellate court to uphold it. See Young v. Fitts, Tex.Civ.App., 183 S.W.2d 186; Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820. It is equally true that when the testimony is conflicting on a question of fact, the appellate court will not disturb the verdict of the jury when there is competent evidence to support the findings; and it is immaterial that the trial judge and the appellate court might have arrived at a different conclusion in passing upon the conflicting evidence. See 3 Tex. Jur. 1096, secs., 768 and 769 and authorities there collated. See also Vol. 4, Texas Digest Appeal and Error, ©=3999(1) and 1001 (2). See also Insurance Co. of North America v. Cangelosi, Tex.Civ.App., 217 S.W.2d 888, points 1-3.
But appellant contends that since Pete Steiger (who is a brother-in-law of
Appellant in his third point complains that the court erred in permitting the witness Sam Johns to testify to the effect that in 1947 he and Ed Schmid showed the land in question to prospective purchasers and that Schmid stated to each prospective purchaser that he would give possession for the year 1948 but that it was rented for the year 1947. Said complaint was based on the fact that objection was made on the ground that it was hearsay at the time the court admitted it. We have examined the testimony and find that it was cumulative of testimony to- the same effect tendered by the witnesses Raymond R. Lockett and Sam Restino, to which no objection was made. In Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104, our Supreme Court announced this rule: “Whether an appellate court should reverse a judgment because of the admission of improper testimony, when testimony to the same effect -is'permitted without objection, is another question. This court has repeatedly ruled that a reversal will not be ordered under such circumstances.” We think that the above ruling of the Supreme Court is in part.the effect of paragraph 2 of Rule 434, T.R.C.P. See also Averitt v. Warren; Tex.Civ.App., 125 S.W.2d 691, point 4. Accordingly, appellant’s third point is overruled.
We have considered appellant’s 2nd, 4th and 5th-points and each is overruled.
Finding no reversible error, the judgment of the trial court is affirmed.