KILGARLIN, Justice.
Once more we confront the tension between the constitutionally guaranteed right of trial by jury and the constitutionally bestowed grant to courts of appeals that their decisions shall be conclusive on questions of fact. Dorothy Herbert sued her former husband, Hansel Kay Herbert, to collect one-half of his military retirement benefits pursuant to a property settlement agreement contained in their divorce decree. Hansel answered that Dorothy was not entitled to specific performance because she had materially breached the agreement by refusing to turn over to him certain items of his personal property.
Trial was to a jury, and the case, without objection from Mrs. Herbert, was submitted on one issue, with the burden of persuasion being placed on Mrs. Herbert. In its answer to that issue, the jury failed to find from a preponderance of the evidence that Dorothy Herbert had substantially complied with the duties and obligations required of her under the property settlement agreement. Accordingly, the trial judge rendered a take nothing judgment against Mrs. Herbert. The court of appeals reversed that judgment. 699 S.W.2d 717. The basis of the court of appeals’ action was its conclusion that the jury’s answer was against the great weight and preponderance of the evidence. We reverse the judgment of the court of appeals and remand this cause to that court.
Hansel Kay Herbert argues that the court of appeals was not authorized to substitute its findings for the non-finding of the jury and because this was done he contends we are entitled to render judgment for him. We were presented but a little over two years ago with a similar contention in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), where complaint was made that the court of appeals in that case had impermissibly set aside a jury’s failure to find certain acts of contributory negligence. Even though we concluded that courts of appeals were empowered to reverse and remand on the basis that the jury’s non-findings were against the great weight and preponderance of the evidence, we pronounced certain guidelines to be followed by courts of appeals when reversing a trial court judgment on “factual insufficiency of the evidence” or “against the great weight and preponderance of the evidence” grounds.
At the outset, we observe that in writing its opinion in this case, the court of appeals did not have the benefit of our writing in Pool. We are confident that, upon remand, the court of appeals will follow the requirements for factual sufficiency review set forth in Pool. We are equally confident that the court of appeals likewise will ren[143]*143der its judgment with complete appreciation of the sanctity to which a jury verdict is entitled.
Courts of appeals have conclusive jurisdiction of fact questions on appeal under Tex.Const.Ann. art. V, § 6. The pertinent language in that section is brief. It merely says “[pjrovided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.” The quoted provision was added in 1891 at the time of the creation of then courts of civil appeals (courts of appeals since September 1, 1981). Conversely, article I, section 15, of the present Texas Constitution, as have all Texas constitutions previous to it, provides that “[t]he right of trial by jury shall remain inviolate.” It is quite obvious that while the right of trial by jury is absolute, juries’ verdicts are not unassailable. Whenever a court of appeals exercises its facts jurisdiction and holds there to be insufficient evidence to support a jury’s finding or, as in this case, that a jury’s failure to find was against the overwhelming weight of the evidence, the right of retrial by jury still exists even though the initial verdict does not.
As observed in Pool, we are not the first supreme court that has struggled in an effort to harmonize the two constitutional provisions. The landmark case of Choate v. San Antonio & A.P. Railway Co., 91 Tex. 406, 44 S.W. 69 (1898), authorized the reversal of a trial court judgment and a remand for a new trial if the evidence was insufficient to support the findings of the jury. However, that opinion contained certain caveats. For one, courts of (civil) appeals were not given the authority to determine facts.
After Choate, subsequent decisions of the Supreme Court of Texas established further refinements. Analogous to the case at bar is not only Pool but Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973), where the supreme court gave clear expression that a court of (civil) appeals could set aside a jury non-finding if that non-finding was against the great weight and preponderance of the evidence. However, the holding in Traylor was not novel. Before the creation of courts of (civil) appeals, the supreme court on occasion exercised fact jurisdiction to set aside a failure to find on a great weight basis. See Houston & T.C. R’y Co. v. Schmidt, 61 Tex. 282 (1884), and cases cited therein. In Schmidt, a railroad passenger alleged he was injured while attempting to board a train. There was testimony that the passenger, Schmidt, was intoxicated at the time. However, the jury refused to find contributory negligence. Justice Stayton, writing for this court, said:
While the verdict of a jury is entitled to great weight when rendered on evidence reasonably sufficient to sustain it, yet, when rendered contrary to evidence, or against the great preponderance of the evidence, and it is most likely that injustice has been done, trial courts should not hesitate to grant new trials.
This court does not exercise the same latitude of discretion in this respect as does the trial court, but when it is manifest that a verdict is clearly contrary to evidence, it has never felt wanting in power to reverse a judgment based on such a verdict.
Id. at 285-86.
It is apparent that the 1891 constitutional amendment was designed to remove fact jurisdiction from the supreme court and place it in the newly created courts of (civil) appeals. It was not intended to change the standard of review from “clearly contrary to the evidence.” No case before or after has ever authorized an appellate court to substitute its findings for those of a jury. In twice doing so in this case, the court of appeals erred. This is what the court of appeals said:
While there clearly was some evidence that appellant [Dorothy] did not substantially comply with the duties and responsibilities incumbent upon her under the divorce decree, sufficient to warrant the submission of the issue to the jury, we find that the evidence does not establish that appellant failed to substantially comply with the duties and obligations required of her under the property settlement agreement/judgment. Although [144]*144reasonable minds could differ about the conclusion to be drawn from the evidence, we find that the elements of substantial compliance — performance of all important particulars, and any omissions or deviations from the agreement must be inadvertent and unknowing and not due to bad faith — were established by the evidence.
699 S.W.2d at 724 (emphasis added).
Free access — add to your briefcase to read the full text and ask questions with AI
KILGARLIN, Justice.
Once more we confront the tension between the constitutionally guaranteed right of trial by jury and the constitutionally bestowed grant to courts of appeals that their decisions shall be conclusive on questions of fact. Dorothy Herbert sued her former husband, Hansel Kay Herbert, to collect one-half of his military retirement benefits pursuant to a property settlement agreement contained in their divorce decree. Hansel answered that Dorothy was not entitled to specific performance because she had materially breached the agreement by refusing to turn over to him certain items of his personal property.
Trial was to a jury, and the case, without objection from Mrs. Herbert, was submitted on one issue, with the burden of persuasion being placed on Mrs. Herbert. In its answer to that issue, the jury failed to find from a preponderance of the evidence that Dorothy Herbert had substantially complied with the duties and obligations required of her under the property settlement agreement. Accordingly, the trial judge rendered a take nothing judgment against Mrs. Herbert. The court of appeals reversed that judgment. 699 S.W.2d 717. The basis of the court of appeals’ action was its conclusion that the jury’s answer was against the great weight and preponderance of the evidence. We reverse the judgment of the court of appeals and remand this cause to that court.
Hansel Kay Herbert argues that the court of appeals was not authorized to substitute its findings for the non-finding of the jury and because this was done he contends we are entitled to render judgment for him. We were presented but a little over two years ago with a similar contention in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), where complaint was made that the court of appeals in that case had impermissibly set aside a jury’s failure to find certain acts of contributory negligence. Even though we concluded that courts of appeals were empowered to reverse and remand on the basis that the jury’s non-findings were against the great weight and preponderance of the evidence, we pronounced certain guidelines to be followed by courts of appeals when reversing a trial court judgment on “factual insufficiency of the evidence” or “against the great weight and preponderance of the evidence” grounds.
At the outset, we observe that in writing its opinion in this case, the court of appeals did not have the benefit of our writing in Pool. We are confident that, upon remand, the court of appeals will follow the requirements for factual sufficiency review set forth in Pool. We are equally confident that the court of appeals likewise will ren[143]*143der its judgment with complete appreciation of the sanctity to which a jury verdict is entitled.
Courts of appeals have conclusive jurisdiction of fact questions on appeal under Tex.Const.Ann. art. V, § 6. The pertinent language in that section is brief. It merely says “[pjrovided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.” The quoted provision was added in 1891 at the time of the creation of then courts of civil appeals (courts of appeals since September 1, 1981). Conversely, article I, section 15, of the present Texas Constitution, as have all Texas constitutions previous to it, provides that “[t]he right of trial by jury shall remain inviolate.” It is quite obvious that while the right of trial by jury is absolute, juries’ verdicts are not unassailable. Whenever a court of appeals exercises its facts jurisdiction and holds there to be insufficient evidence to support a jury’s finding or, as in this case, that a jury’s failure to find was against the overwhelming weight of the evidence, the right of retrial by jury still exists even though the initial verdict does not.
As observed in Pool, we are not the first supreme court that has struggled in an effort to harmonize the two constitutional provisions. The landmark case of Choate v. San Antonio & A.P. Railway Co., 91 Tex. 406, 44 S.W. 69 (1898), authorized the reversal of a trial court judgment and a remand for a new trial if the evidence was insufficient to support the findings of the jury. However, that opinion contained certain caveats. For one, courts of (civil) appeals were not given the authority to determine facts.
After Choate, subsequent decisions of the Supreme Court of Texas established further refinements. Analogous to the case at bar is not only Pool but Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973), where the supreme court gave clear expression that a court of (civil) appeals could set aside a jury non-finding if that non-finding was against the great weight and preponderance of the evidence. However, the holding in Traylor was not novel. Before the creation of courts of (civil) appeals, the supreme court on occasion exercised fact jurisdiction to set aside a failure to find on a great weight basis. See Houston & T.C. R’y Co. v. Schmidt, 61 Tex. 282 (1884), and cases cited therein. In Schmidt, a railroad passenger alleged he was injured while attempting to board a train. There was testimony that the passenger, Schmidt, was intoxicated at the time. However, the jury refused to find contributory negligence. Justice Stayton, writing for this court, said:
While the verdict of a jury is entitled to great weight when rendered on evidence reasonably sufficient to sustain it, yet, when rendered contrary to evidence, or against the great preponderance of the evidence, and it is most likely that injustice has been done, trial courts should not hesitate to grant new trials.
This court does not exercise the same latitude of discretion in this respect as does the trial court, but when it is manifest that a verdict is clearly contrary to evidence, it has never felt wanting in power to reverse a judgment based on such a verdict.
Id. at 285-86.
It is apparent that the 1891 constitutional amendment was designed to remove fact jurisdiction from the supreme court and place it in the newly created courts of (civil) appeals. It was not intended to change the standard of review from “clearly contrary to the evidence.” No case before or after has ever authorized an appellate court to substitute its findings for those of a jury. In twice doing so in this case, the court of appeals erred. This is what the court of appeals said:
While there clearly was some evidence that appellant [Dorothy] did not substantially comply with the duties and responsibilities incumbent upon her under the divorce decree, sufficient to warrant the submission of the issue to the jury, we find that the evidence does not establish that appellant failed to substantially comply with the duties and obligations required of her under the property settlement agreement/judgment. Although [144]*144reasonable minds could differ about the conclusion to be drawn from the evidence, we find that the elements of substantial compliance — performance of all important particulars, and any omissions or deviations from the agreement must be inadvertent and unknowing and not due to bad faith — were established by the evidence.
699 S.W.2d at 724 (emphasis added).
The admission by the court of appeals that reasonable minds could differ about the conclusion to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred. This was clearly error. In addition to the pronouncement of Chief Justice Gaines in Choate, 91 Tex. at 410, 44 S.W. at 70, that appellate courts are not authorized to substitute their findings for those of the jury, more recent authority is likewise in accord. See Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950) (courts of appeals are not authorized to find facts); Wisdom v. Smith, 146 Tex. 420, 425, 209 S.W.2d 164, 166 (1948) (a court of appeals has no authority to make its own findings of fact).
When a court of appeals utilizes an incorrect test in reviewing factual insufficiency or great weight points, in spite of that court’s constitutional grant of conclusiveness on questions of fact, this court is empowered to reverse the judgment of the court of appeals. See Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689 (1954); and, In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We recognize the division of powers between our court and the courts of appeals. So long as courts of appeals apply the correct test in evidentiary review, their determination of factual sufficiency points is conclusive. However, courts of appeals, and prior to 1891, this court, have ever been diligent in exercising restraint in the use of their power of conclusiveness over facts. That is so because the long-established precedents in this state demonstrate respect for jury verdicts. E.g., Briscoe v. Bronaugh, 1 Tex. 326 (1846) (before court may set aside verdict, “it must clearly appear that it is wrong”); Carter v. Carter, 5 Tex. 93 (1849) (court will not set aside verdict “merely because they might, upon an examination of the evidence have arrived at a result different from that attained by the jury, or because the verdict is against the mere preponderance of testimony or the weight of evidence; nor merely because it might appear to them to be founded upon slight evidence”); Branch v. Dever, 18 Tex. 612 (1857) (“it is not enough that their verdict may appear to be contrary to the weight of evidence”); and, Jones v. Williams, 41 Tex. 390 (1874) (recognizing duty of jury “to reconcile the conflicting or contradictory evidence of the witnesses, or to give a greater degree of credit to one or more witnesses than to others”).
We reverse the judgment of the court of appeals and remand to that court for a reconsideration of its ruling in accordance with this opinion and Pool v. Ford Motor Co., observing that appellate courts are not free to substitute their judgment for that of the jury simply because they may disagree with the jury’s verdict. We additionally would remind that in considering great weight points complaining of a jury’s failure to find a fact, courts of appeals should be mindful that a jury was not convinced by a preponderance of evidence. Therefore, in such instances, courts of appeals are not entitled to reverse merely because they conclude that the evidence preponderates toward an affirmative answer. Reversal would be warranted only after a detailing of evidence under the Pool criteria indicates that the great weight of that evidence supports an affirmative answer.
Concurring opinion by PHILLIPS, C.J., joined by GONZALEZ, J.
Dissenting opinion by ROBERTSON, J.
[145]*145Dissenting opinion by MAUZY, J., joined by RAY, J.
Dissenting opinion by CULVER, J.