Only two issues were involved in this suit, liability and the amount of damages. Plaintiff won in the court below, but on review we *Page 902 held that, while the issue of liability was correctly determined, the court erred in measuring the damages; hence, we agreed that the case would have to be reversed and remanded, but my insistence is that, as these issues are severable, the paramount issue, that of liability, having been legally determined, no good reason exists for the retrial of that issue, but that the case should have been remanded with directions that further proceedings be confined to the ascertainment, under correct rules, of the quantum of relief. I dissent, therefore, from the feature of the judgment requiring a retrial of the whole case.
I respectfully submit that my position is sustained, not only by an applicable rule, but by repeated decisions of our appellate courts. Rule 62a for Courts of Civil Appeals reads in part as follows: "* * * And if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error. * * *" Texas Jurisprudence, vol. 3, p. 1242, § 869 announces the following doctrine on the subject: "As stated in an earlier section, the appellate court has power to treat issues as distinct for the purpose of reversal as to particular issues. A remand only for the purpose of ascertaining the damage or other relief that plaintiff is entitled to is a particular application of this general rule. Furthermore, as already noticed, the fact that insufficient data is before the appellate court as to damages or other relief is a reason for remanding the cause. Accordingly, if the contest as to the amount of the relief is separable from other issues, the appellate court, on ordering the remand, may direct that the further proceedings in the trial court be confined to an inquiry as to the quantum of relief that should be granted. * * *" This text is supported by the following adjudicated cases: Cooper v. Austin,58 Tex. 494; Shirley v. Waco Ry. Co., 78 Tex. 150, 10 S.W. 543; Marshall v. City of San Antonio (Tex.Civ.App.) 63 S.W. 138, 148; Southern Irr. Co. v. Wharton Nat. Bank (Tex.Civ.App.) 144 S.W. 701, 704; Nona Mills Co. v. Jackson (Tex.Civ.App.) 159 S.W. 932, 933; Diffie v. White (Tex.Civ.App.) 184 S.W. 1065, 1070; Fielder v. Houston Oil Co. (Tex.Com.App.) 210 S.W. 797; Merryman v. First Nat. Bank (Tex.Civ.App.)288 S.W. 840, 841.
We have heard and read much in recent years regarding the necessity for judicial reform. At our annual bar associations and association of judges, consideration of this subject consumes more time than any other. The reforms sought are, on final analysis, to simplify procedure, expedite litigation, and lessen expense; hence I submit that wherever, under authorized procedure, one or all of these ends may be attained, as can be in the case at bar, such procedure should be employed. The issue of liability having been properly determined, and as it is in no sense dependent upon the subsidiary issue of damages, a retrial of the case, confined alone to the question of damages, would unquestionably simplify and tend to expedite further proceedings, and, in accomplishing these results, would also obviate the necessity for creating costs, which otherwise would have to be incurred.
For these reasons, I think the case should have been remanded with the instructions above indicated.