¶1On Relators’ Motion for Rehearing
¶2Relators say, in view of our opinion, it will behoove all trial judges who set aside a jury verdict to state no reasons therefor and thus avoid the possibility of being required to enter judgment on the verdict. This is not our holding.
¶3Such was the holding in Trevino v. Doughty, Tex.Civ.App., 311 S.W.2d 276. Contra: Woodmen of the World Life Ins. Co. v. Davenport, Tex.Civ.App., 159 S.W.2d 913.
¶4We are not called upon to choose between these diverse opinions.
¶5The reasons assigned by Judge Fuchs in his original order was that there was error in the charge. By his pleading herein Judge Fuchs has amplified this language, if it needed amplification, by stating that errors in the charge included the submission of issues not properly raised by the evidence. It is error to submit controlling issues not raised by the evidence. Rule 279, T.R.C.P. See Morton Salt Co. v. Lybrand, Tex.Civ.App. Dallas, 292 S.W. 264, writ dismissed, w. o. j. The same rule provides also that this error may be complained of for the first time after verdict.
¶6Judge Fuchs either on his own motion or being activated by motions filed by the parties has set aside the jury verdict for reasons which are ostensibly valid. Such action was in the exercise of judicial discretion not shown to be arbitrary.
¶7The motion is overruled.
¶8Motion overruled.