On Rehearing
PER CURIAM.Plaintiff’s motion for rehearing consists largely of a reargument of the issues discussed and decided in our opinion. Counsel assert that we misconstrued the opinion in Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105, in stating that the case was actually submitted to the jury upon the theory that both defendants were driving. A close examination of the opinion will show that Instruction No. 2 submitted that issue (loc. cit. 109) and the Court (at loc. cit. 110) obviously regarded that submission as a necessary element of plaintiff’s case. Thus, we believe that our interpretation of the opinion was correct, but we further note that it is not binding upon us in any event insofar as it may be contrary to our opinion. Counsel for plaintiff also assert that if the case is to be reversed and remanded, it should be retried only on the issue of liability because “no one has contested” the amount of the verdict. Defendant Green raised an issue of ex-cessiveness in his motion for a new trial, but when judgment was entered in his favor and plaintiff appealed, the amount of the verdict was in nowise an issue; the matter was not briefed or considered on appeal. Under these circumstances, we should not foreclose the defendant on that issue. Plaintiff’s motion for the adoption of the concurring opinion of Judge Seiler or for a rehearing is overruled.
Defendant-Respondent Green has filed a motion for rehearing, basically upon the *734contention that we have violated § 512.160 (2), RSMo 1959, V.A.M.S. and Rule 83.13, providing that no appellate court shall reverse a judgment unless it believes that material error was committed by the trial court against the appellant; also, that without a proper reversal there can be no remand for a new trial. More specifically, it is thus argued that we have actually affirmed on the merits the action of the trial court in entering judgment for defendant Green on this record, but have remanded for possible amendment and retrial upon a different theory.
Our courts have frequently declared the principle that: “ ‘ “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.” ’ East v. McMenamy, supra at page 732, of 266 S.W.2d 728.” Yarrington v. Lininger, Mo., 327 S.W.2d 104, loc. cit. 111. Defendant Green apparently recognizes this principle, but insists that we did not rightly reach that point in the present case. It is true that in substantially all of the cases in which that principle has been declared the appellate court did find some error, usually in the failure of the plaintiff to make a sub-missible case. Reece v. Reed, Mo., 326 S.W.2d 67; Smith v. St. Louis Public Service Co., Banc, 364 Mo. 104, 259 S.W.2d 692; Houfburg v. Kansas City Stock Yards of Maine, Mo., 283 S.W.2d 539; Snyder v. Jensen, Mo., 281 S.W.2d 819; McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704. These cases illustrate the liberality exercised in remanding for a new trial where there has been a reversal.
In essence, defendant’s counsel say here that we had no right to reverse. Our action in doing so, and in remanding, was motivated by the particular circumstances of this case, in that plaintiff’s counsel had relied upon a theory discussed in the case of Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105, which case had not been overruled or disapproved. The theory (more fully discussed in our opinion) was that the driver might be considered as the “instrument” of the minor defendant so as to make the latter liable for the driver’s negligence. We have now disapproved that theory, but for the first time. We have held that plaintiff’s theory of submission was erroneous. The trial court, it is true, corrected that by the entry of judgment for defendant Green.
In Aiken v. Clary, Mo., 396 S.W.2d 668, this Court held upon plaintiff’s appeal from an adverse verdict and judgment, that his evidence in a malpractice case was insufficient because it did not include the necessary expert testimony; it further found, however, that plaintiff and his counsel had relied upon a prior decision of this Court holding, under rather similar circumstances, that such testimony was not necessary. Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017. It thus appeared that plaintiff’s evidence was not in fact insufficient under the law as it stood at the time of trial. The Court nevertheless reversed, but remanded the case for a new trial because plaintiff had been misled by the prior state of the law. The further finding of error on the voir dire is immaterial in any consideration of our present point, for it was of no importance in view of the finding that no submissible case was made; that matter was obviously included merely as a guide for another trial. The Aiken case, supra, is authority for a reversal without a finding of specific error, under such unusual circum*735stances as are present here. We do not consider that the spirit of either the statute or the rule has been violated. For a further analogy, see also Cudney v. Midcontinent Airlines, Banc, 363 Mo. 922, 254 S.W.2d 662; there the cause was remanded upon a determination (for the first time) that the res ipsa doctrine was inapplicable in suits for injuries to airline passengers.
Defendant also complains of our order dividing the costs; we adhere to that ruling. The motion of Defendant-Respondent Green for a rehearing is overruled.