*1 Atley ux., Petitioners, SHERMAN et
PROVIDENT AMERICAN INSURANCE COMPANY, Respondent.
No. A-11604.
Supreme Court of Texas.
June Daylee Wiggins, Wiggins
Alvin E. Beaumont, petitioners. for Kelsoe, Jr., and Stone, H. Kelsoe & G. King, Kennedy, Dallas, Sharf- Robert M. Beaumont, Dowell, Rienstra, Dale stein & respondent. GRIFFIN, Justice. petitioners, Sherman
In this cause County Court at wife, filed a suit law, Texas, re- County, against Jefferson defendant, spondent Company, as Insurance hospital and clinical service to recover plus sum of benefits $100.00' $216.00 The de- attorney’s penalty. fee 12% answered, exclu- pleading certain fendant sions *2 spirit and its 94 violates both pose of Rule liability. At of
which relieved defendant authority, letter; know of no its but we plaintiffs’ testimony the the close the of decided procedure or of rule of motion for either of defendant’s granted trial court to reverse case, this Court upon return which authorizes verdict, an instructed the it court because verdict, the trial judgment rendered the of of such the trial court excep- appeal absence of motion judgment failed in the for the defendant. On de- tion, sham trial the Appeals to the of the to strike Civil petitioners have fenses, judgment particularly since court’s was affirmed. S.W.2d appeal. complaint thereof on 340. made no rehearing, in their motion for juris give In order to this Court Plaintiffs their passing on original action to our alleged diction of this case a conflict is filed on error, adopted the application of for writ of exist between the of holding the pleading Civil that under made on defendant’s in the at bar attack case briefs. the curiae proof as in amicus the record herein of contained burden the mo- their plaintiffs Prior the time filed plaintiffs negate on ex the the they no attack had made rehearing the tion for clusions and limitations and pleadings in defendant’s Life on the contained in the case of Mutual holding Old Line the two trial Company either in the Tilger, Insurance 264 S.W.2d answer of the history. courts. An examination (Tex.Civ.App., 1953), no writ plaintiffs Facts shows that of recognize does Statement We that such a conflict pleadings the of defendant recognized that exist. nature, paragraph general in 4 were ap- granted At the time this Court complaint to plaintiffs the made no plication error, thought writ of exception filed any court nor suffi- pass upon the would be able to required Rules 90 and as pleading ciency of defendant’s of Realizing Texas of Procedure. Rules Civil exclusions limitations contained single attorney not file a this, all policy. defendant; pleadings present any he did not the trial court herein professors Various law have filed any manner request in oral or written which amicus which it is asserted curiae briefs in questioned sufficiency of defendant’s pleadings contained of defendant accepted attorney pleadings. plaintiffs’ paragraph in his 4 were not sufficient pleadings were sufficient the fact that the under Rule Texas Rules of Civil Proce- he pleaded, defenses never to raise all dure, proof place burden of presented his any during at the trial time plaintiffs negate the exclusions to, by, exceptions ruling nor asked for a specif- limitations policy. of the Defendant sufficiency of de- court on the ically pleaded plaintiffs’ in to the defense 67, Texas pleadings. fendant’s Rule suit, provisions, “the exclusions following Rules of Civil Procedure. policy, and limitations contained the said in (a) provisions, to-wit: fact, proceeded In sides exclusions insuring contained in the clause pleadings defendant premise that policy.” (b) said There sub-heads are exceptions raised the and exclusions para- through pleadings (i) similar Plaintiffs, that de- policy. graph agreeing while to raise pleadings were sufficient fendant’s Many policy exceptions and exclusions pleaded by respondent consenting and included its grounds for an instructed verdict to raise defendant were sufficient obviously were seek limitations and defenses. To exclu- issues pur- sions, contended, Tilger this manner to the intended on the relying frustrate (264 557) by the El Paso Court us and cannot question before decide the Appeals, had regarding sufficiency of defendant’s establishing allegations ex- in the case at bar. ceptions and and plaintiffs exclusions duty put any
no
evidence.
point
On the
of conflict
*3
Appeals
burden of
the
of Civil
proof,
Court
the Court of
plaintiffs’
In
filed in
briefs
in
correctly
the case at
has
decided that
bar
Court, plaintiffs
this
Appeals
Civil
and in
plaintiffs
proof
the
the
on
opinion was the
have set
what in their
out
negative
the
and limitations
exclusions
question
Appellants’ brief
to be decided.
a
contained in
and
the
“The
in the
of Civil
states:
Court
by
defense
Inter
defendant’s answer.
is
question
in
case who
to be resolved
Marshall, 131
national
Ass’n
Travelers
plaintiffs
had
The
proof.
the burden of
258,
(1938)
Tex.
114
851
and Trav
S.W.2d
met their burden
they
contend that
have
Harris,
(Tex.
elers Ins. Co. v.
212
933
S.W.
case,
that
proof
their
and
the
to establish
Com.App.,
Supreme
1919). The
exceptions
plead
all of their
who
adopted
judgment
approved
the
policy,
go
in
failed to
limitations
question
of the
holding
Commission on the
their ex-
forward with their
under
discussed in that case.
limitations,
ceptions
it
and that
part
grant
error on the
court
Accordingly,
disapprove the
we
judgment
ground
defendant on the
in
Life
holding
Old Line Mutual
Ins. Co.
plaintiffs
all the
negative
did not
v. Tilger,
(Tex.Civ.App.,
Rule Texas in Vernon’s Rules plain provides unambiguous language Dissenting Opinion part, defect, in fault in “[e]very omission or NORVELL, substance, a either in Justice. form pointed specifically by out is not not based judgment in this case is brought writing controversy. upon the merits Judge the attention of the fact genuine There is a issue charge before instruction or upon whether the insurance sued or, case, jury non-jury a before the representa- procured by false been judgment, rendition of shall deemed to of Mrs. Sherman. as to the health tions by seeking party
have
waived
been
impanelled,
jury
had been
Although
reversal
(Emphasis
account.”
such
to it nor
was never submitted
issue
added.)
I realize
by the trial court.
decided
rules,
procedural
we must have
Insufficiency
cannot
determined
will be
occasion lawsuits
for the
raised
first time in
utilize these
by
lawyers
or fail to
how
use
State,
138,
courts. Bednarz v.
142 Tex.
However,
judg-
the rendition
rules.
(1944);
Osage Co-Op.
S.W.2d 562
Texas
merits of
Royalty
ment not based
Kemper,
Pool v.
controversy
regrettable
is a
occurrence.
(Tex.Civ.App., 1943), writ refused. This
upon in-
Particularly is
true
last
of suits
many
case has been
cited
cases down
position
policies, considering the
through
surance
Company
Olivares v. Service Trust
688,
industry occupies
our economic
(Tex.Civ.App., 1964),
687,
385 S.W.2d
system,
no writ
the reliance
history,
its sales methods and
and its
never
holding has
buying
questioned. Therefore,
placed upon
by
been
its contracts
do not have
public.
party
objectionable
occurrence
Such
to strike out
unfortunate
pleading.
only
avoided unless
is
or result should be
Not
a court authorized
by
plea
evils
greater
a sham
we raise
strike from
record
avoidance
procedural
motion,
destroying
either with
without
weakening or
our
plea without an
system.
may also
express
striking
order
it.”
Rules
majority
Texas
cites Rule
Hackney,
In Rhea v.
117 Fla.
157 So.
position
Procedure,
and takes
Supreme
of Florida
190 (1934),
failing
plaintiff
(petitioner)
supporting
said with a
author-
wealth
defend-
proper exceptions
lodge
ities that:
answer,
waived
objectionable
ant’s
has
right
his
issue
to have
true
*4
plead-
power
sham
“The
to eliminate
jury.
disagree with
case submitted to the
I
indispensable power
an
to
ings is
position.
mind,
of
my
To
the answer
this
protection
the char-
maintenance of
and
(respondent) constitutes an
the defendant
court,
proper ad-
of
and the
acter
attempt
pro-
by pleading
circumvent
justice.”
ministration of
visions
94 and in effect reinstate
of Rule
cumbersome,
wholly
unjust and
unsat-
also,
Ins.
Casualty
Clark v.
&Life
this
practice
isfactory
that existed
state Co.,
968, 84
Ky. 579,
245
53 S.W.2d
prior
adoption
of
1941 Rules
to the
Nat.
America
(1932),
1420
Bank of
A.L.R.
this
duty of
Civil Procedure.
It
is the
Sunseri,
Pa.
Ass’n v.
311
Trust & Sav.
promulgate
and enforce rules of
Long,
114,
(1933),
v.
tary or naval service deemed erroneous. Clarendon v. Mc Clelland, ad- continued with 37 Tex. S.W. motion then (1893); Harwood, Lang nature. specifications of like ditional 945 (Tex.Civ.App.1940, writ).1 The majority of the Court no Clearly, point simply function involving de- is state the recognized, of, complained g. action of a e. over presented. fenses was continuance, ruling an exception, granting a asserts that was petitioner here evidence, excluding grant- proffered *5 company to insurance burden of the ing a motion for an instructed verdict. prove bringing facts plead Company, In Warren v. Houston Oil case within the (Tex.Com.App.1948), S.W.2d 341 of the insurance liability general said that assignment an of error was suf- weight of American policy. greater merely ficient stated that in accord with authority to be seems summary (peremp- erred giving re- Perhaps, in view contention. Hall, tory) also, instruction. Green v. case, the that sult in this rule reached (Tex.Com.App.1921). S.W. 183 the burden follows adopted in Texas. should be pleading case is The narrow issue whether history However, recently reviewed plead- against Rule 90 or the rule Mutual Hardware Dealers Rule 94 in stated, ing should For the reasons control. Berglund, 393 S.W.2d Insurance Co. v. I submit of all the ex- (Tex.Sup.1965), ceptions general lia- limitations to the concluded' limi- when an issue as to an bility disregarded should liability general tation and this remanded cause pleading, plain- by proper raised representation. of fraudulent Cer- issue tiff proving the burden of tainly, in this far achieved result so risk loss was attributable to which the procedural can only described as exception or not come within the miscarriage. respectfully dissent from I However, it does not follow limitation. the order of affirmance. argu- petitioner’s from insistence rejected by ment that has been this Court SMITH, dissent. J., joins with- he is before courts opinioin Lang Court of still a member of the Waco v. Harwood was Appeals, had been after he written Mr. Justice James P. Alexan der, procedural reform, of this Court. elected Chief Justice a leader while