Herbert v. Herbert’s Empirical Analysis

Citation profile

206 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 206 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Appellate courts have the authority to review the sufficiency of evidence in support of the fact finder’s determinations for one reason: to undo the effect of an unjust trial. See generally, Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex. L.Rev. 803, 809 (1952). This traditional judicial function, now exercised only by our intermediate appellate courts, neither conflicts with nor infringes upon the right of trial by jury. No appeals court in Texas has ever been given, or has ever exercised, the authority to find any fact. The extent of an appellate court’s power is, as it has always been, to remand for new trial if more than a scintilla of probative evidence exists to support the result reached by the jury. This authority exists regardless of whether the court of appeals is reviewing a jury’s finding or its “non-finding,” that is, the failure of a jury to find a fact. In either case, the court is not substituting its own finding for the jury’s; it is merely ordering a new trial before another jury for a new determination. The court of appeals must have this authority in order to do justice. Trials may be just as unfair when the party with the burden of proof unjustly loses as when the party with the burden of proof unjustly wins. To fulfill its constitutional responsibilities, the court of appeals must have authority to review both findings and non-findings. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973).”

   2 later decisions quote this exact passage · from the concurrence
   e.g. Jacob Matthew Kiffe v. State · Russell Reed Johnson v. State

2. “The jury’s failure to find that the railroad permitted growth of grass and weeds of more than fifteen inches proximately causing the collision was against the great weight and preponderance of the evidence, and the trial court erred in not granting a new trial.”

   2 later decisions quote this exact passage
   e.g. Mitchell v. Southern Pacific Transportation Co. · Risinger v. Shuemaker

3. “In reviewing a challenge that the jury finding is against the great weight and preponderance of the evidence, the court of appeals must first examine the record to determine if there is some evidence to support the finding; if such is the case, then the court of appeals must determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or whether the great preponderance of the evidence supports its nonexistence. Whether the great weight challenge is to a finding or a nonfinding, a court of appeals may reverse and remand a case for a new trial only when it concludes that the finding or nonfinding is against the great weight and preponderance of the evidence.”

   1 later decision quote this exact passage · from the dissent
   e.g. Horton v. Denny's Inc.