In the original opinion rendered herein the judgment of the Court of Civil Appeals, reversing the judgment of the trial court and rendering judgment for respondent, was affirmed. Petitioner presents a vigorous motion for rehearing, contending that the judgments of the Court of Civil Appeals and of this Court should be set aside, and that the judgment of the trial court should be affirmed; or, in the alternative, that the judgment should be reversed and the case remanded to the trial court for a new trial. As a basis for his alternative contention petitioner presents the following:
"(1) It does not conclusively appear that the evidence was fully developed upon the question of authority;
"(2) Where the question of authority as a basis for the judgment is grounded on implied findings and it could not be said that it was conclusive that the evidence had been fully developed upon that point, the court will remand; and,
"(3) Where a litigant is led to believe by the ruling of the trial court that he has raised an issue of fact as to one material matter as a basis for recovery, and the case was fully developed upon any other theory as a basis for recovery, and the court concludes that as to the one upon which the case was fully developed was not raised by the evidence, and where as to the other it could not be conclusively said that it could not be more fully developed, it is the duty of the court to reverse and remand, rather than to render."
5 The trial court thought there was evidence to sustain petitioner's cause of action, and in response to issues submitted to *Page 405 them the jury made findings in favor of petitioner, and judgment was entered accordingly. Many witnesses testified in the case, and the question was raised as to whether or not Merrill Tatum and his father, Red Tatum, had either actual or express authority to hire trucks for transportation, or had theretofore hired trucks for transportation, for the men to ride to and from their work. It is shown that out of 125 witnesses only two interested witnesses testified upon the question of authority, and that the testimony along that line has not been so fully developed as to justify an appellate court, in the face of the record, in reversing and rendering the judgment in this case.
6 The rule is well established that when a Court of Civil Appeals reverses the judgment of a trial court because of the lack of evidence supporting same, it will not render judgment unless it appears that the case in that respect has been fully developed. When it does not appear that the facts have been fully developed, the Supreme Court when reversing the judgment of the Court of Civil Appeals will remand and not render the case. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; Taylor v. United States F. G. Co. (Com. App.), 283 S.W. 161; Turner v. The Texas Company, 138 Tex. 380, 159 S.W.2d 112; Jones Fine Bread Co. v. Smith, 136 S.W.2d 234; Waggoner v. Herring-Showers Lumber Co., 120 Tex. 605, 40 S.W.2d 1; Dunn v. Taylor, 102 Tex. 80,113 S.W. 265; Comet Motor Freight Lines v. Holmes,175 S.W.2d 464; Rule 505, Texas Rules of Civil Procedure.
Petitioner's motion for rehearing is granted, and the judgment of this Court heretofore entered in this case is set aside. That part of the judgment of the Court of Civil Appeals reversing the judgment of the trial court is affirmed, but that part of the judgment of the Court of Civil Appeals rendering judgment for respondent is reversed, and this cause is remanded to the trial court for a new trial.
Opinion delivered February 21, 1945.
Second motion for rehearing overruled March 21, 1945.