In St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 5 Tex. Sup. Ct. J. 376 (Tex. 1962), the issue before the supreme court was whether the trial court's entry of judgment on conflicting findings constituted fundamental error; if the trial court's action constituted fundamental error, then the issue could not have been waived. Id. at 748-49. Although in its discussion the court noted that the appellant "admits that it did not assign in its motion for new trial any error as to conflict," the court did not consider whether assigning error in a motion for new trial would be sufficient to preserve error. Id. at 748. Instead, the issue before the court was whether entry of judgment on conflicting findings amounted to fundamental error. Id. In considering that issue, the supreme court held that entry of judgment on conflicting findings was not fundamental error; as such, error could be waived. Id.