Mcnutt Oil & Refining Co. v. Brooks Et Al‪.‬

Appellants and appellees have filed motions for a rehearing. Appellees urge that we erred in viewing the evidence in the light most favorable to appellants. Certainly, in determining whether any fact issues were raised, where the Court withdrew the case from consideration of the jury and rendered judgment for appellees, the evidence must be so viewed. Appellants contend that we erred in remanding the cause and that we should have rendered judgment dissolving the injunction. We have carefully considered this question on original hearing. It was the writers first impression that such judgment should be rendered. However, after consultation and mature reflection, we decided to remand the cause, thinking that probably it had not been fully developed and that a remand was required in the interest of justice. We still adhere to this view. Appellants rely strongly on City of Dallas v. Lively, Tex.Civ.App., 161 S.W.2d 895, 898, wr.ref. There the cause was submitted to the jury, which among other findings found that (3) it was not necessary to the peace, health, safety or general welfare of the public to prohibit the use of appellees property for purposes of a gasoline filling station (a use prohibited by the ordinance in question there). In the course of the opinion Associate Justice Young said: