I am in accord with the holding in the original opinion that the Court of Civil Appeals properly reversed the judgment of the trial court on the ground that the judgment was not supported *Page 406 by the evidence. I am opposed, however, to remanding the case for a new trial.
Rule 505 reads in part as follows:
"Decision. — In each case, the Supreme Court shall either affirm the judgment, or reverse and render such judgment as the Court of Civil Appeals should have rendered, or reverse thejudgment and remand the case to the lower court, if it shallappear that the justice of the case demands another trial, * * *." (Emphasis mine.)
The clear meaning of the above rule is that when a case is reversed for want of evidence it should be remanded only if it shall appear that the justice of the case demands another trial.
In the case at bar there was a fair, full, and complete development of the case upon the first trial. The parties are supposed to fully develop their case when it is tried, and, in the absence of a showing to the contrary, this will be presumed to have been done. The plaintiff does not contend that he was prevented from fully developing his case upon the former trial. He makes no reasonable showing that he will be able to produce other evidence upon another trial. There is therefore nothing to indicate that the justice of the case requires another trial.
If the case had been tried upon an erroneous theory, or if the plaintiff had been deprived of relevant testimony by some erroneous ruling of the trial court, there would be good reason for remanding the case for another trial. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178. But no such case is here presented.
There should be an end to litigation. When a case has been properly tried, and plaintiff, without any reasonable excuse, has failed to make out a case, the case should not be remanded for another trial merely to see if plaintiff can do better upon another trial. At least he should not be given that opportunity in the absence of reasonable assurance that he can produce other evidence upon another trial, and the showing of a reasonable excuse for having failed to produce same upon the former trial.
In my opinion the State should not be put to the expense nor the parties to the annoyance of trying this case again.
Opinion delivered February 21, 1945. *Page 407