City of Austin v. Cook , 1961 Tex. App. LEXIS 1734 ( 1961 )

On Appellant’s Motion for Rehearing

In view of the opinion of our Supreme Court in Matthews v. General Accident Fire and Life Assurance Corp., Ltd., 343 S.W.2d 251, we have reviewed our holding regarding the Trial Court’s definition of, “injury” in the charge to the jury. We stated (333 S.W.2d 398, at page 403) that appellant objected to this definition 'because there was no pleading to support certain elements of the definition.

We further discussed this point in our original 'opinion herein. In addition to what we have previously stated and held, we add the following: Appellant did file written objection to the definition of “injury” contained in the Court’s charge prior to its submission. to the jury. There is, however, no indication or showing that such objection was “presented” to the trial judge as required by Rule 272, T.R.C.P.

It is our opinion, therefore, that appellant has waived any objection which he may have had to the insufficiency of ap-pellee’s pleading. Rule 90, T.R.C.P., Ellis Drilling Corp. v. McGuire, Tex.Civ.App., Eastland, 321 S.W.2d 911, writ ref., N.R.E.

The motion is overruled.