On Motion for Rehearing.
We are asked by appellee to remand the cause for another trial in the event we adhere to our former conclusion to reverse the judgment for the insufficiency of the evidence.
We are quite thoroughly of the opinion the motion should be overruled on the merits of the case, but, as to whether the cause should be remanded or here rendered, we have had more difficulty. Article 1626, Revised Statutes 1911, provides: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.” It is the contention of appellant that the language of this article is mandatory, and that, since under the pleadings and evidence the trial court should have instructed a verdict for it, for a refusal to do which this court has reversed the judgment, it becomes the duty of this, court to render judgment in its favor. On the other hand, it is the contention of appellee that the cause should be remanded, to enable him to amend his pleadings and to seek a recovery upon the ground of the negligence of the appellant in *859.maintaining a defective coupler, in violation of the federal Employers’ Liability Act, a ground not relied on in the last trial. It has been often held, in a general way, that, where a ease has been fully developed in the trial court, and where, as matter of law, under the pleadings and evidence, one party is entitled to a judgment, it becomes the duty of the Court of Civil Appeals, on reversing a judgment in favor of the other, to render such judgment as the trial court should have rendered below. And in this connection some of the authorities have spoken of the article of the statute above quoted as being mandatory. H. & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Tillman v. Erp, 121 S. W. 547; Stevens v. Masterson, 90 Tex. 417, 39 S. W. 295, 921; M., K. & T. Ry. Co. v. Moses, 144 S. W. 1039. All of the authorities, however, and even the statute itself, require the cause to be remanded rather than rendered, when it is necessary that some matter of fact be ascertained, and the question of difficulty presented is whether or not a cause will be remanded to enable a plaintiff to amend his pleadings in order to ascertain such necessary fact. We have finally concluded that the proper practice is to remand.
It is to be observed that the statute, in authorizing or requiring the remanding of a case when it is necessary that some matter of fact be ascertained, does not necessarily convey the idea that the parties, on a remanding of the case, will be limited on another trial to the issues raised by the pleadings already filed. The ends of justice would call as loudly for the remanding of a cause to ascertain a necessary fact, where that fact, to be legally ascertained, would have to be pleaded for the first time, as though it could be ascertained without such amendment. We think the statute in spirit contemplates only that, where a case has been fully developed in the trial court, both in the pleadings and the evidence, and it is apparent, as matter of law, that only one judgment could be sustained, that the appellate court should proceed to render that judgment. But, where from the facts it reasonably appears that on another trial the plaintiff may make a case, or the defendant establish a defense, even though a new pleading should be required, the ends of justice require that such cause, on being reversed, should be remanded, and the party given an opportunity to develop his ease or present his defense. We are not at all without authority for this position.
In Wilkin v. Owens, 102 Tex. 197, 114 S. W. 104, 115 S. W. 1174, 117 S. W. 425, 132 Am. St. Rep. 867, the grantee of certain heirs owning land sued the purchaser at an irregular administrator’s sale, and recovered the land. The defendant in the action was denied the equity of subrogation as to the payments made to the administrator, because such right was not pleaded, and the Supreme Court, after reversing the judgment which he had recovered in the district court first rendered judgment against him, but later, on his motion for rehearing, remanded the cause, to enable him to amend his pleading so as to claim the money paid the administrator for the land as a condition to its recovery. In Houston, etc., Ry. Co. v. State, 24 Tex. Civ. App. 117, 56 S. W. 228, the practice in this court was indicated by Justice Stephens in the following language: “We would not reverse a judgment to enable a party to plead and prove a new issue, but, in reversing judgments, we have in several instances declined to exercise our power to proceed to render judgment, where it seemed probable that the ends of justice would be better subserved by remanding the cause for a new trial.” The cause was there remanded to afford one of the parties an opportunity to amend his pleadings. In K. C., M. & O. Ry. Co. v. Pope, 152 S. W. 185; Id., 153 S. W. 163, this court sustained an appellant’s assignment that a verdict should have been instructed in its favor, and reversed a judgment against it, yet we remanded the cause for the obvious purpose of enabling the plaintiff in the action to amend the cause of action. On rehearing of that cause, we said: “No judgment other than one for the defendant could have been rendered, since the case pleaded was not proved, and the case proved was not pleaded.” Bemanding the case, therefore, could have meant nothing less than that, in our opinion, the ends of justice required such course, and that the statute quoted above did not forbid.
Appellee’s motion for rehearing is therefore granted, to the extent that the cause is remanded for another trial, with instructions that, if on another trial the pleadings and evidence are the same as they were on the last trial, the court will instruct a verdict for the defendant