Respondent asks no rehearing, but moves that the cause be remanded instead of reversed outright, in order that it may be tried again on the theory of negligence under the humanitarian doctrine. She stresses Byrne v. Prudential Ins. Co. of America (Mo. Div. 1), 88 S.W.2d 344, 347(4), which says (italics ours): "It is the settled practice of appellate procedure that a case should not be reversed for failure of proof, without remanding unless the appellate court is convinced that the available essential evidence has been fully presented and that no recovery can be had in any event." Fifteen other recent cases are cited, in a few of which the stumbling block was a mistakenlegal theory as in Ducoulombier v. Thompson, 343 Mo. 991, 999(2), 124 S.W.2d 1105, 1109 and Gibbs v. Gen. Motors Corp. (Div. 1), 350 Mo. 431, 166 *Page 251 251 S.W.2d 575, 581(9). But most of them are like the Byrne case where the disappointed litigant failed in his proof. One case, White v. Kentling, 345 Mo. 526, 535, 134 S.W.2d 39, 45, states the converse, that (italics ours): "Ordinarily a cause is not reversed without remand for a new trial except when the factshave been fully developed."
But there is no contention in the present motion that the facts were not fully developed below. Such a contention could not be made when it is remembered this is the second of three companion cases for the wrongful death of a mother, child and father, arising out of the same casualty and tried by the same counsel. Each of them was brought on the same assignments of negligence including both primary and humanitarian negligence. In each instance plaintiff presented evidence on all the assignments, and at the close of the evidence abandoned all except failure to sound the statutory warning signals. The hazard of meeting the defense of contributory negligence was obviously greater in this[850] case for the death of the father because he was the driver of the truck, whereas in the two others the mother was a guest and the child too young to be accountable for contributory negligence. But the risk of proceeding under the humanitarian doctrine alone was considerable in all the cases because of the high hill which obstructed the engine crew's view of the approaching truck until it was close to the railroad track. In view of these facts respondent's counsel deliberately chose the primary negligence theory — and we mean no criticism of him in saying that.
But these facts blunt the force of respondent's authorities. In general it can be said they dealt with cases in which the moving party had met with misadventure, perhaps through oversight, misunderstanding or error in legal judgment, but nevertheless misadventure unlike that here where counsel weighed the consequences and committed himself to a particular theory. We have been able to find only a few cases in point on that question. But it is obvious a party should not always be granted a remanding of a cause for successive trials in order that he may experiment with different theories of his adversary's liability. The latter has some rights.
Of the cases decided by this court, the one most nearly in respondent's favor is Yoakum v. Lusk (Mo. Div. 1), 223 S.W. 54, 56(5) where it was held (in a wrongful death case) that if the plaintiff has pleaded a substantial ground of negligence, and there is evidence tending to support it, the Supreme Court can on its own motion remand the cause for retrial upon that theory, and has sometimes done so. The opinion stated that "at the trial the plaintiff specifically abandoned all charges of negligence except two." It further discussed a third assignment on which she sought another trial, and held it had no merit.
On the other hand in St. J. Hay Feed Co. v. Brewster (Mo. App.), 195 S.W. 71, 73(6) it was declared that the ruling of the *Page 252 lower court awarding plaintiff a new trial will not be upheld on the defendant's appeal, and the cause remanded in order that plaintiff may have an opportunity to meet defendant's successful defense nisi, when neither the defendant nor the trial court had done anything to prevent plaintiff from joining issue on that defense at the first trial, but plaintiff chose to stick to another theory. Conversely, in Robinson v. Unit Iron Co. (Mo. App.), 31 S.W.2d 232, where the trial court induced the plaintiff to try his case on a wrong theory, to which a demurrer was sustained on appeal, it was held the cause should be remanded.
Outcault Adv. Co. v. Schierbaum (Mo. App.), 209 S.W. 982, 985(9), was an action for the price of advertising novelties. The defendant urged as a complete contractural defense of non-performance that part of the advertising matter furnished was defective, thereby waiving any theory of partial defense and recoupment. Held: the case should not be remanded for new trial to permit the defendant to make the latter defense. And Williams v. St. J. G.I. Ry. Co. (Mo. App.), 122 S.W.2d 118, 124(6) was a suit for personal injuries under the Federal Employers' Liability Act, sustained while plaintiff was installing a grate in a locomotive. Plaintiff recovered judgment which was reversed on appeal on the ground that he had assumed the risk. The appellate court said: "As the fatal facts appear in plaintiff's own evidence we will not remand the cause."
Ritzheimer v. Marshall, 168 S.W.2d 159, 166(11, 12) recently decided by the St. Louis Court of Appeals should be noticed. The suit was for personal injuries sustained in an automobile collision. Plaintiff's petition made eight assignments of primary negligence and one under the humanitarian doctrine, but submitted only one assignment — of primary negligence — to the jury. They found for the defendant. The circuit court sustained appellant's motion for new trial on the ground that the verdict was against the weight of the evidence. The defendant appealed, contending the plaintiff was guilty of contributory negligence as a matter of law. The Court of Appeals refused to interfere.
But in so ruling the opinion stated that the plaintiff-respondent had mistakenly construed one of the defendant-appellant's assignments on appeal to contend that on a retrial plaintiff could not submit any assignment of negligence she had abandoned at the first trial. Nevertheless the Court of Appeals proceeded to discuss that question for the guidance of the parties in the new trial, and held that on a new trial the plaintiff would be free to submit any assignment of negligence — as much as if the case had never been tried before. Then further, by way of illustration, the opinion referred to the doctrine invoked by respondent here — that a cause will not be reversed [851] without remanding "unless the record clearly shows that the facts have *Page 253 been fully developed and that plaintiff cannot recover in any event." Following that the opinion specifically ruled the plaintiff on retrial could submit her case under the humanitarian doctrine although she had abandoned it at the first trial.
It is obvious much of this was at least qualified obiter; also that the Court of Appeals did not hold or mean to hold the process of remanding a cause for retrial of separate abandoned issues severally could go on indefinitely. As this decision and others indicate, the practice is indulged in the interest ofjustice. And undoubtedly it recognizes that where a party has got the benefit of presenting his evidence on all his pleaded assignments to the jury, and of thereby impressing their minds with the magnitude of his adversary's dereliction; and then deliberately chooses to restrict the submission to one issue because he believes that is to his advantage — such a course is more a matter of legal strategy than of misadventure. As an illustration, if a party permits incompetent evidence to go to the jury without objection or similarly allows an unqualified juror to serve, gambling on the result, he will not thereafter be heard to complain.
We do not say this is always true of the moral right to a remand for new trial. The foregoing decisions show the situation will vary with the facts. The plaintiff may not know on which assignment he can make the strongest showing — although he can go to the jury on all of them if he has made a substantial showing on each. But the instant case was the second of the three cases the respondent had tried. The verdict in the first was returned on October 24, 1940; in this case on November 22, 1940, and in the infant's case on December 13, 1940, the same course being followed in all of them. Aside from these authorities, respondent's theory of liability in this case, as stated in her brief, was that the deceased father was driving the truck at such speed that he could either have beat the train across the track, or have stopped, if the statutory signals had been sounded, thereby warning him of its approach. She has got two verdicts on that theory. If the cause were tried under the humanitarian doctrine this primary negligence would have to be disregarded; and the recovery would have to be based on the theory that the train crew could or should have seen the deceased in peril in time to have allowed him to cross the track or stop without the help of the statutory signals — or she would have to reverse her position and say they were sounded. Either of these theories would be directly contrary to her theory in this case. In the circumstances of the case we think it would be unjust to remand the cause. *Page 254