The opinion
On Motion for Rehearing
At one point in our opinion we stated that the Supreme Court, in refusing application for writ “no reversible error” in the Hickman v. Durham case, 213 S.W.2d 569 , either found the Eastland Court of Civil Appeals to have been correct in its holding that the error it believed to exist was not preserved or was found to have been correct because the instruction as given by the trial court to' the jury was sufficient and satisfactory.
We are well aware of the fact that there are many writs disposed of by the Supreme Court as “Refused, n. r. e.”, which the Supreme Court might have disposed of as straight “Writ refused” without qualification, but for the fact that the complaining party applying for the writ applied for the writ on a lesser number of points than the number ruled upon by the Court of Civil Appeals. In those instances, despite any opinion by the members of the' Supreme Court that the reasoning as well as the holdings of the Court of Civil Appeals merited their one hundred per cent approval, as by a “Writ refused”, it is powerless to express such an approval but must instead append the qualification “no reversible error” because it has jurisdiction of only the points upon which the writ has been applied for. When the Supreme Court is not empowered to consider all points that were before the Court of Civil Appeals, the best the Supreme Court can do for the intermediate court is to note its refusal of the application, “no reversible error.” Bowie v. City of Houston, Tex. Sup., 1953, 261 S.W.2d 450 .
What we perhaps should have said in our discussion of the Hickman v. Durham case, supra, was that since in that instance it was highly unlikely that the application for writ of error failed to carry forward the few grounds of error urged in the Court of Civil Appeals, our comments were predicated upon a presumption that all the points upon appeal were carried forward into the application for the writ of error.
The motion for rehearing is overruled.