
    Lester Earl Carter v. Texarkana Bus Company, Inc.
    No. A-5987.
    Decided October 31, 1956.
    Rehearing Overruled November 21, 1956.
    (295 S.W. 2d Series 653)
    
      
      Harkness and Friedman, of Texarkana, for petitioner.
    
      Brown & Brown, of Texarkana, for respondent.
   PER CURIAM ON APPLICATION FOR WRIT OF ERROR.

In this case the Court of Civil Appeals has reversed the judgment of the trial court and remanded the cause for retrial on the sole ground that the verdict in the amount of $10,000.00 awarded to the plaintiff in the trial court is excessive and contrary to the overwhelming weight of the evidence. 292 S.W. 2d 869.

Rule 440, T.R.C.P., formerly Article 1862, R.C.S. of 1925, provides:

“In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed.”

The Supreme Court has held this rule imposes a mandatory duty upon the Court of Civil Appeals. Wilson v. Freeman, 108 Texas 121, 185 S.W. 993; Texas Employers’ Ins. Ass’n. v. Lightfoot, 139 Texas 304, 162 S.W. 2d 929; Dallas Railway & Terminal Co. v. Farnsworth, 148 Texas 584, 227 S.W. 2d 1017.

The judgment of the Court of Civil Appeals in this case is in conflict with these opinions of the Supreme Court. By authority of Rule 483, T.R.C.P., the judgment of the Court of Civil Appeals is reversed on the application for writ of error, and the cause remanded to the Court of Civil Appeals for compliance with Rule 440.

Reversed and remanded.

Opinion delivered October 31, 1956.

Rehearing overruled November 21, 1956.  