On Motion for Rehearing
In her motion for rehearing, which is in substance a motion to modify our mandate, the plaintiff urges the court to remand the cause, representing that she can make a submissible case against the defendant upon another and different theory. In support of her motion plaintiff has cited us to Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 628[7] (Mo.1958); Skaggs v. City of Cape Girardeau, 472 S.W.2d 870, 875[4] (Mo.App.1971), and other cases in which an appellate court has applied the rule that a cause should not be reversed for failure of proof without remand unless the record indicates that available essential evidence has been fully presented and no recovery could be had in any event, or unless the failure of proof appears to be the result of deliberate legal strategy. See, generally, Grissom v. Handley, 410 S.W.2d 681, 690-691[14][15, 16][17][18] (Mo.App.1966). Defendant responds by quoting Rule 83.16, and by citing us to Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 480[12] (Mo.1963), which states the familiar principle that new propositions and complaints may not be presented for the first time on motion for rehearing.
*49The appeal was presented in this court upon stipulated facts in lieu of a transcript, and the record is so sparse that we cannot ascertain the merit of plaintiff’s contention that she could recover on another theory, but in any event we cannot grant the relief sought. When the judgment of the trial court cannot be affirmed because of prejudicial error committed against the appellant by the trial court and must be reversed, the appellate court has discretion to remand when the record indicates that a remand will serve the ends of justice. If, on the other hand, the respondent has obtained a judgment without error, we have no power to reverse and remand in order to allow the appellant to pursue a different theory, whether it be a theory of recovery or of defense. Owings v. White, 391 S.W.2d 195, 197[1-3] (Mo. banc 1965). The motion to modify the mandate, taken as a motion for rehearing, is therefore denied.
All concur.