On Motion for Rehearing.
The complaint of plaintiff in error on this appeal, and upon which he relies for reversal of the judgment rendered against him, is that the judge who tried this cause, without a jury, failed to file his findings of fact and conclusions of law after he had in due time and manner made request therefor.
This court in a former opinion overruled the assignment and affirmed the judgment.
In his motion for rehearing plaintiff in error has called our attention to the fact that we had erroneously stated in our original opinion that the failure of th.e trial judge to file his findings and conclusions was brought about by fault of counsel for plaintiff in error.
Upon review of the record we find this complaint correct. This error on the part of the court was brought about in this way: The trial court qualified the bill of exceptions, taken by plaintiff in error to his failure to file findings of fact and conclusions of law, stating that counsel for the “plaintiff” told the court that he would prepare and submit to the court for approval the findings and conclusions requested, and that such counsel failed so to do, and that the court, depending upon counsel’s promise, and not having his attention again called to the matter by any one, overlooked the same until too late to file such findings and conclusions. In passing on the assignment, we confused the party “plaintiff” mentioned in the court’s qualification with the “plaintiff in error” and therefore reached the erroneous conclusion that the promise to prepare such findings and conclusions was made by counsel for plaintiff in error, and so concluding we held that plaintiff in error was estopped to complain of the failure of the judge to file such findings and conclusions.
By the decisions of all of our appellate courts the rule that the failure of a trial judge to file findings and conclusions as required by the statute will be reversible error, unless the record shows affirmatively that such failure resulted in no harm to the party complaining, seems to be well established. Poulter v. Smith, 149 S. W. 279, and authorities there cited.
The record in this case is accompanied by a statement of facts. From this statement it appears that the testimony is conflicting on the material issues involved. There was much testimony to sustain the defense pleaded by plaintiff in error. In the absence of written conclusions by the trial judge, we are unable to determine whether dr not he found that the defenses were sustained by the evidence. He may have found that the evidence supports the plea of contributory negligence made by the plaintiff in error, and so far as we know may have concluded that the plea, though supported by evidence, constituted no defense to the plaintiff’s demand. Therefore it cannot be said the failure of the judge to file conclusions of law was a harmless error.
For the reasons pointed out, the motion for rehearing is granted, and the judgment heretofore rendered by this court is set aside, and the judgment of the trial court is reversed, and the cause remanded.