The opinion
Mr. Justice Griffin,
dissenting.
“Remove not the ancient landmark, which thy fathers have set.” Proverbs, 22:28.
For more than forty years it has been the holding of this Court that before this Court would take jurisdiction of a complaint about the admission or rejection of evidence the evidence must be “controlling” or the case must “turn” upon the evidence point. The majority opinion herein sets aside and overrules this holding and seeks to substitute a holding that this Court has jurisdiction to correct an error relating to the admission or exclusion of testimony where it is made to appear that the action of the trial court (uncorrected by the Court of Civil Appeals), or the action of the Court of Civil Appeals with reference to such evidence amounted to a denial of the rights of a party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. With this rule I do not agree. I do agree, however, that if the evidence sought to be admitted or which was excluded was “controlling,” or the case “turns” on such evidence that this Court would have jurisdiction to grant a petition for writ of error, and I think such have been the decisions of this Court long previous to the case at bar.
In the case of Browder v. Memphis Independent School Dist., 1915, 107 Texas 535 , 180 S.W. 1077 (2), this Court said:
“The assignment of error relating to the action of the trial court in overruling the plaintiffs’ motion for a continuance does not present a question of substantive law, and we therefore have no jurisdiction to review that ruling. For the same reason we *459 are without authority, under the remaining assignment in the petition for writ of error, to review the action of the Court of Civil Appeals upon the assignments of error made in that court concerning the rulings of the trial court on the admission of certain testimony. The admissibility of this testimony cannot be said to constitute a question of substantive law in this case.”
In Allen v. Pollard, 1919, 109 Texas 536 , 212 S.W. 468 , this Court said:
“The Supreme Court’s jurisdiction of the case is governed by the Act of 1913. Allen’s right of recovery depends upon this testimony. Having this vital relation to the case, the question of the admissibility of the testimony is to be regarded as one of substantive law.”
In the case of Slaton v. Citizens’ Nat. Bank of Plainview, Texas Com. App., 1920, 221 S.W. 955 , Judge McLendon of Section B, said:
“The first of those rulings relates to the trial court’s action in excluding testimony as to the value of certain lots acquired by Slaton at the time he acquired the barn property. This testimony was offered as tending to impeach the testimony of Slaton as to the valuation placed by him upon the barn property at the time he acquired it, and circumstantially as tending to show that the barn property was not as valuable as claimed and testified to by Slaton. The question thus presented is, we think, clearly not one of substantive law, and the decision of the Court of Civil Appeals thereon is therefore final.”
In Panhandle & S. F. Ry. Co. v. Vaughn, Texas Com. App., 1920, 222 S.W. 206 , the Court said:
“The second ground of error sets out an assignment complaining of the admission of certain testimony relating to the extent of the damage of the cattle. As the ease does not turn upon the admission or rejection of such testimony, the assignment does not present a question of substantive law. The Supreme Court is therefore without jurisdiction to review it. Vernon’s Sayles’ Ann. Civ. 1914, art. 1521, subd. 6; Browder et al. v. Memphis Independent School District, 107 Texas 538 , 180 S.W. 1077 .” *
*460 The case of Smith v. Butcher, 1920, 110 Texas 617 , 223 S.W. 116 , was one in which a writ of error was sought on admissibility of certain testimony. In holding we had no jurisdiction we said:
“The Supreme Court is without jurisdiction of the case unless the ruling of the Court of Civil Appeals of which the plaintiff in error makes complaint, presents a question of substantive law. That ruling relates purely to the admissibility of certain testimony. The case cannot be said to turn upon this testimony. A question of substantive law is not presented. Browder v. Memphis Independent School District, 107 Texas 535 , 180 S.W. 1077 .”
The action of the Court in granting the writ of error was withdrawn and the cause dismissed, w.o.j.
In Texas City Transp. Co. v. Winters, Texas Com. App., 1920, 224 S.W. 1087 , on motion for rehearing, it was claimed that the ruling on admissibility of evidence was a question of substantive law. Judge McLendon, in overruling the motion for rehearing, said:
“The test laid down by the Supreme Court in Smith v. Butcher, 110 Texas 617 , 223 S.W. 166 , for determining whether a ruling upon the admission or exclusion of testimony is a question of substantive law is whether the case can ‘be said to turn upon this testimony.’ * * *.”
In the case of Dallas Waste Mills v. Texas Cake & Linter Co., Texas Com. App., 1921, 228 S.W. 118 , it was said:
“Several assignments of error complaining of the admission or rejection of testimony are urged; but, as these assignments do not present questions of substantive law, their disposition by the Court of Civil Appeals is final. Smith v. Butcher, 110 Texas 617 , 223 S.W. 166 .”
The Supreme Court approved the holding of the Commission on the question discussed.
In the case of Hartt v. Yturia Cattle Co., Texas Com. App., 1921, 228 S.W. 551 , Judge Powell for Section B discusses the matter of jurisdiction of the Supreme Court to take a case wherein the only points of error were confined to an attack upon the action of the trial court in admitting certain testimony. He says that while the case did turn upon whether certain represen *461 tations and guaranties had been made by the seller (appellee) to the purchaser (Hartt) it did not turn upon the evidence of custom tendered by seller, and excluded by trial court. The Court said, “no rights were asserted by reason of the alleged custom; and the only purpose of the evidence of such custom was to discredit and cast a doubt upon the evidence that the agreement declared upon was made, and to corroborate the evidence that no such agreement was made.” This case was dismissed, w.o.j.
In Kansas City, M. & O. Ry. Co. of Texas v. Estes, Texas Com. App., 1921, 228 S.W. 1087 (6), it was said:
“The assignments of error, complaining of the exclusion of certain testimony of Chambers giving his opinion upon the manner in which plaintiff received his injuries, do not present questions of substantive law, and are not within the jurisdiction of the Supreme Court.”
C. J. Phillips, in Holland v. Nimitz, 1922, 111 Texas 419 , 239 S.W. 185 , discusses the jurisdiction of the Supreme Court under the. various statutory provisions of the Constitutional amendment of 1891 (redefining the jurisdiction of the Supreme Court and establishing the Courts of Civil Appeals) beginning with the Act of April 13, 1892 and down through the Act of March 15,1917. Particularly was it held that where the Supreme Court had jurisdiction of a cause under one of the first five subdivisions of the statute (now Art. 1728, Vernon’s Annotated Texas Civil Statutes) and where the judgment of the Court of Civil Appeals was not made final by statute (now Art. 1821, Vernon’s Annotated Texas Civil Statutes), and other assignments raised the question of admissibility of evidence only, the Court would decide the whole case including the evidence assignments. In a series of cases reported in 114 Texas 375 , 269 S.W. 1024 (1925), this Court, speaking through Justice Greenwood, discusses at great length the jurisdiction of this Court on applications for writ of error. The opinion states that “the questions presented by these applications, [writs of error] however, are typical of so great a number which are constantly brought here for review that we have deemed it important to state the questions and the grounds for the conclusions that they are without or within the court’s jurisdiction.”
In disposing of the application in the case of L. B. Price Mercantile Co. v. Moore, [ 114 Texas 375 , 269 S.W. 1024 , 1026], the Court said:
*462 “* * * The principal contention in this petition is that the court should review the exclusion of evidence tending to show that defendant in error, her husband, and her daughter had maintained two suits within two years for alleged personal injuries, of which no objective symptoms were found. Plaintiff in error nowise challenges the finding of the Court of Civil Appeals that the record contains ample evidence of an unjustifiable assault on defendant in error by plaintiff in error’s agents, resulting in her injury substantially as alleged, and as found by the jury. Thus it appears that the case could not possibly be held to turn on the excluded testimony. We had no jurisdiction of a complaint about the exclusion of such testimony under the ‘substantive law rule,’ and we have none under the present statute. Browder v. Independent School District, 107 Texas 538 , 180 S.W. 1077 ; Smith v. Butcher, 110 Texas 618 , 223 S.W. 166 ; Kirksey v. Traction Co., 110 Texas 193 , 217 S.W. 139 ; Hartt v. Yturia Cattle Co. (Texas Com. App.) 228 S.W. 551 .”
Moore v. Davis, Texas Com. App., 1930, 27 S.W. 2d 153, 157 , again sets forth the rule that once the Supreme Court takes jurisdiction under one of the first five subdivisions of Art. 1728, it will also decide questions involving admission or exclusion of evidence. The Court said:
“It is quite true, * * * that ordinarily a question of the admissibility of evidence is not one of substantive law, and the Supreme Court might not grant a writ of error where such a question alone is presented; but once the court examines an application and concludes an error of substantive law has been committed, then it follows, under the very language of the statute, its jurisdiction then extends “to all questions of law arising” in the case. The case of Holland v. Nimitz, 111 Texas 419 , 232 S.W. 298 , 239 S.W. 185 , shows the difference between the statute as it now exists and the act of 1913.” (Court’s emphasis).
In Compton v. Dannenbauer, 1931, 120 Texas 14 , 35 S.W. 2d 682 , 79 A.L.R. 1488 , this Court reiterated the rule that the Supreme Court will not grant a writ of error under subd. 6 of Art. 1728 to review a cause where the bare issue of the admissibility of evidence is the only question presented unless the evidence is decisive of the case. The Supreme Court held, however, that if the Court takes jurisdiction under assignments raising one of the first five subdivisions of Art. 1728. it will decide questions of evidence. Kansas City, M. & O. Ry. Co. v. Torres, Texas Com. App., 1933, 57 S.W. 2d 1099, 1100 , hold that “since the evidence excluded by the trial court and held admissible by the Court of Civil Appeals does not necessarily control the case nor *463 present a question of substantive law or any other question which the statute gives the Supreme Court the power to review, the writ of error must be dismissed. Merchants’ Cotton Oil Co. v. Acme Gin Co., 121 Texas 91 , 42 S.W. 2d 777 ; Smith v. Butcher, 110 Texas 617 , 223 S.W. 166 ; Hartt v. Yturia Cattle Co. (Texas Com. App.) 228 S.W. 551 .”
In the course of the opinion the Court said the case turned on the question of whether ejection of plaintiff, a trespasser, by defendant’s railroad brakeman was within the brakeman’s course of employment. The writ was dismissed by the Supreme Court as recommended by the Commission.
We now come to the case of Hanks v. Gulf C. & S. F. Ry. Co., 1959, 159 Texas 311 , 320 S.W. 2d 333 . That case had only one point of error and that point involved the action of the trial court in excluding certain testimony tendered by the condemnor as to values placed by condemnee on the remainder of his land not taken by condemnation proceedings. This Court recognized that the proffered evidence must be “controlling” or that the case “turns” on such evidence, when we said, “the respondent invokes the well settled rule that where a complaint is made as to the admission or exclusion of evidence, it will not be said to concern a matter of substantive law unless the evidence ‘controls’ the case, or the case ‘turns’ on the evidence in question. The contention is made that it is only in situations where, because of the ruling of the trial court, the party is prevented from making out a case that the question concerning the admissibility of evidence becomes a matter of substantive law, citing the case of Allen v. Pollard, 109 Texas 536 , 212 S.W. 468 , in support of such contention.”
The Court further says:
“We do not agree with the position thus taken by the respondent. It is true that respondent, who was the appellant in the Court of Civil Appeals, presented only three points of error. Each of these point complained that the trial court erred in refusing to permit appellant-respondent to introduce certain testimony. The Court of Civil Appeals sustained such contention and reversed and remanded the cause for a new trial. Unquestionably, the court made the evidence controlling of the case, and the judgment of the court ‘turned’ on the evidence in question. It reversed and remanded the cause for a new trial. Thus, that court by its action made the evidence controlling of the case, and the judgment of that court ‘turned’ on the evidence *464 in question. It is well settled by the decisions of this Court that if the evidence necessarily controls the case, or if the case turns on the evidence in question, this Court has jurisdiction. See Merchants’ Cotton Oil Company, Inc. v. Acme Gin Company, 121 Texas 91 , 42 S.W. 2d 777 ; Smith v. Butcher, 110 Texas 617 , 223 S.W. 166 ; Kansas City, M. & O. Railway Company v. Torres, Texas Com. App., 57 S.W. 2d 1099 . In the Acme Gin Company case, supra, the court, after stating that the only question presented by the application for writ of error was one of admissibility of evidence, disposed of the jurisdictional question by holding that * * Since the evidence excluded does not necessarily control the case * * *, we are compelled to dismiss the application for want of jurisdiction. * * *’ In the instant case, we have held that the evidence is controlling and that the judgement of the Court of Civil Appeals turned on the evidence in question. In all of these cases, including the instant case, this Court had and has jurisdiction to determine the question of whether or not the excluded evidence was controlling, or whether the case ‘turned’ on the evidence. We hold that this Court has jurisdiction to consider the question presented in the petition for writ of error.”
From this Court’s opinion we agreed with respondents’ “well settled rule”, but we did not agree with that portion which states “that it is only in situations where, because of the ruling of the trial court, the party is prevented from making out a case that the question concerning the admissibility of evidence becomes a matter of substantive law.” This is our latest expression on the question under search, and in my opinion, it recognizes that the evidence under consideration must “control” the case, or the case must “turn” on the evidence in auestion. The Hanks case also recognizes that the action of the Court of Civil Appeals can make the evidence controlling by its action and thus give this Court jurisdiction. There is nothing illogical or surprising about such a rule as far as I can see. Unless the evidence “controls” the case, or the case “turns” on the evidence in question we have only a fact question which must be decided on the weight and preponderance. It requires no citation of authorities for the proposition that our State Constitution, Art. 5, Sec. 3, limits our jurisdiction to “questions of law” only; or that Art. 5, Sec. 6 makes the decisions of Courts of Civil Appeals conclusive on all questions of fact brought before them on appeal.
The writer became a member of this Court on April 1, 1949. At that time the present chief justice and five associate justices *465 had many years of service on this Court. Some of those justices were members of the Court or the Commission of Appeals at the time this matter of jurisdiction was being discussed, “threshed out” and settled. Without any argument, the Court as then constituted, believed that the law was settled, and had been settled for at least thirty or more years, that this Court had jurisdiction of admissibility or exclusion of evidence only where such evidence was “controlling” or the case “turned” on such evidence; or where the Court of Civil Appeals, by its decision on the evidence question, had made it control the case. This is the rule which we recognized and approved in the Hanks case.
For other cases decided by the Supreme Court or the Commission recognizing the rule above, but which cases have not been discussed in this dissent, see Langford v. Newman, Texas Com. App., 1920, 220 S.W. 544 (9) ; Kansas City, M. & O. Ry. Co. of Texas v. Estes, Texas Com. App., 1921, 228 S.W. 1087 (6) ; Merchants’ Cotton Oil Co. v. Acme Gin Co., 1931, 121 Texas 91 , 42 S.W. 2d 777 ; Davis v. Williams, 1941, 136 Texas 27 , 146 S.W. 2d 982 ; Ginn v. City of Tyler, 1950, 148 Texas 604 , 227 S.W. 2d 1022 ; 7 Texas Law Rev. 119; 29 Texas Law Rev. 296-301.
When the admitted or excluded evidence is cumulative, impeaching or other than the sole evidence on the point, we have the question of determining the weight and preponderance of such evidence. Unquestionably, that presents a fact issue over which this Court has no jurisdiction.
Rules 434 and 503, T.R.C.P., apply to instances where “an error of law” has been committed and they do not attempt to determine our jurisdiction. If I am correct in my view as to our jurisdiction, it must follow that on those assignments regarding admission or exclusion of evidence which are not “controlling” or on which the case does not “turn” present only fact questions and are not within the purview of either rule.
I cannot bring myself to agree with the majority which destroys “the ancient landmarks” defining this court’s jurisdiction, and I respectfully dissent therefrom. I am of the opinion that this Court had and has jurisdiction to grant the application for writ of error in this case for the reason that the Court of Civil Appeals’ judgment reversing and remanding the trial court’s judgment solely on this evidence point made the case “turn” on the point of evidence and also made the point of *466 evidence “controlling” of its judgment. Also, by our opinion affirming the Court of Civil Appeals we have made our judgment turn solely upon that point of evidence. Since a final judgment has been rendered by the Court of Civil Appeals, and this Court disposed of this litigation on this evidence point, it follows that the evidence point has become one of law. Had the jurisdiction of this Court been placed on that ground, I would not have dissented.
Emphasis mine unless otherwise indicated in this citation and those following.