On Appellant’s Motion for Rehearing.
The right of appellate courts to reverse a judgment as to some issues and remand for new trial as to those issues only, does not arise solely or for the first time by reason of Rule 434, Rules of Practice & Procedure in Civil Cases, effective September 1, 1941. That rule is but declaratory of a rule or policy which has long been in force in this State. Old Rule 62a, 149 S.W.X; 3 Tex.Jur. §§ 808, 809, 810, 867. Upon many authorities there cited, it is said in 3 Tex.Jur. § 810:
“In a proper case, if error is found as to one or more issues only, the judgment being in other respects free from error, the cause may be reversed and remanded for retrial of the erroneously decided issues alone. As is remarked in an opinion in one of the cases, it would indeed be unfortunate if, after a fair and impartial trial has been had of one of the issues involved, the rules of procedure were such that, without any apparent reason therefor, the trial court should be again required to determine this same issue upon reversal for error affecting only another and separate issue.”
Appellant’s motion for rehearing is denied.