OPINION ON MOTION FOR REHEARING.
BROWN, J.— This case has been pending in this court since February 17, 1909, and' much judicial energy has been expended in sundry efforts to dispose of it according to correct principles of law. It was first heard in Division One at. our October term, 1911; and an opinion written by Commissioner Bond, recommending that the cause be remanded for a new trial. That opinion was not adopted by a majority of the judges composing Division One; so the case was transferred to the Court in Banc.
It was heard in Banc at our April term, 1912; and in an opinion filed by Lamm, J., it was reversed and remanded, with directions to the circuit court to enter judgment for plaintiff on the verdict of the jury.
The cause now stands on a motion by respondent for a rehearing, in which motion we are strongly urged to affirm the judgment of the circuit court granting a new trial, on the ground that the verdict of the jury is excessive.
I am of opinion that the verdict is excessive; but not to the extent indicated in the opinion of my *653learned brother Graves, who figures the earning capacity of plaintiff’s deceased husband at only $1.25 per day. He has overlooked the evidence at pages 56 and 57 oí the abstract, which shows that deceased knew how to perform other kinds of work besides that of a section hand; that he had worked as a lumber-stacker, and received therefor from $1.50' to $2.40 per day.
I do not understand that the earning capacity of a man can be measured exclusively by the wages he is receiving when killed. If so, there could be no recovery for killing or injuring a man who was temporarily out of employment.
While the judgment may be, and I believe is, slightly excessive, I think the motion for rehearing should be overruled, for the reason that the issue of; excessiveness of the verdict was not called to our attention by either of the briefs filed by learned counsel for respondent.
It was certainly the duty of respondent to point out in its brief the excessiveness of the verdict, and cite us to the law which designated the correct measure of damages.
During the last fifteen years our rule number 15 has contained the following provision:
“All briefs shall be printed and shall contain separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief failing to comply with this rule may be disregarded by the court. ’ ’
It seems that the Kansas City Court of Appeals has a similar rule, which it enforces. [Schwald v. Brunjes, 139 Mo. App. 516.]
This rulé is simple, and reasonable. It is also necessary, because it compels litigants to marshal and bring forward in one brief all the points and authori*654ties upon which, they rely to secure favorable action of this court on their contentions. If we allow litigants who have urged many grounds against the validity of a verdict in the lower court to bring those grounds or issues forward one at a time, the business of this court will be needlessly congested and delayed.
It is the settled policy of this court to require litigants to try their appeals on the same theory they adopted in the trial court, and new issues cannot be raised for the first time on appeal. [Horgan v. Brady, 155 Mo. 659, l. c. 668; Brier v. Bank, 225 Mo. 684.]
In Horgan v. Brady, supra, we said: “The plaintiff is limited on appeal to the theory on which she tried her case in the lower court, for it would be manifestly unjust to convict that court of error in respect to matters upon which it never ruled, and upon claims or rights that were never called to its attention. This is axiomatic in appellate practice, and has been the accepted rule, certainly since 1868.”
It would only be a just, reasonable and necessary expansion of that doctrine to require litigants who secure more than one hearing o'f the same appeal to confine themselves to the issues they choose to present to us in the first hearing. If we are to refrain from “convicting” trial courts oí errors not called to their attention, why should we not as a court in banc also refrain from “convicting” one division of this court of overlooking assignments of error not called to its attention in the briefs of litigants'?
It is a well known fact that all lawyers incorporate in their motions for new trial and in arrest many points which upon mature reflection they abandon and do not present to the appellate courts at all.
Our rule before quoted requires each litigant to present to us in his brief all the points upon which he relies; and I fail to see why that rule is not just as binding as the rule which requires a litigant by his *655motion for a new trial to call the lower court’s attention to all the errors of which he complains.
The defendant (respondent) has had a fair trial in the circuit court and two hearings in this court. Several hundred other litigants who have never even been accorded one hearing have been patiently knocking at the door of this court for more than two years, humbly beseeching us to give them relief; therefore, as an act of justice to ourselves and other litigants, I think the motion for a rehearing in this cause should be overruled.