On Motion for Rehearing.
We conclude that we were not warranted in holding that the record shows, as a matter of law, that the premium receipt dated “10-1-30” was applied by appellant to the payment due in February, 1031. A careful scrutiny of the record brings grave doubt of the good faith and accuracy of appellant’s testimony upon that question. When appel-lee offered the receipt appellant strenuously objected to its introduction, upon trivial grounds. When it was admitted over those objections, appellant’s witnesses sought, by shifty and flimsy explanations to discredit the effect of the receipt, and render its application doubtful. It was explained, for instance, that appellant’s collecting agents had no consistent system about the method of indicating dates by figures, and that therefore “10-1-30” might mean October 1, or January 10, and yet the witness finally testified than that payment, although “made in October,” was applied to the payment of the premium due for February, 1931. Such ambidextrous shuffling apparently so disgusted the jury that they believed none of the testimony of those witnesses, and in consequence found that appellant failed to prove that the May, 1931, premium had not been paid.
This court has heretofore granted appellant’s motion to restore to the statement of facts the erased words “in October”- following the testimony of appellant’s manager that the February premium was paid (“in October”). In her motion for rehearing appellee strenuously renews her objection to that action of this court. We will not revise that ruling, for the particular reason, if no other, that it is immaterial to the decision whether the witness so testified, since the jury refused to believe him, whatever he may have actually testified upon the point.
■ But this conclusion cannot affect the original disposition of the case. It simply leaves the “10-1-30” payment unappropriated, ■ to ■be applied by the-company upon any unpaid month, of which there were three, October, 1930, and February and May, 1931, according *398to the receipt book put in evidence by appel-lee. Its application to either month would leave the other two unpaid. Had appellee not put the receipt book in evidence, and thereby assumed the laboring oar to show what premiums were in fact paid, she would be in a better position to say appellant has failed to meet the burden resting upon it to affirmatively show nonpayment.
In this case, as well as in nearly all like cases, the defending insurance company had every advantage over the plaintiff in knowing the true facts concerning the timely payment or nonpayment of premiums, and in proving or withholding proof of these facts. The insured is dead and therefore cannot “speak to the transaction” and say when and what payments were made and thereby explain, in a few words, that which is now enveloped in obscurity, largely through the shifty concealments and dodgings of appellant, who actually produced none of its records or books which, presumably, show the true facts.
In the original presentation and in her motion for rehearing appellee vigorously attacks the sufficiency of appellant’s brief upon the ground that appellant’s assignments of error are not brought forward into its brief. There is no merit in this contention. The errors complained of by appellant have been presented in this court through propositions of law, based on specific assignments of error, brought up in the transcript and identified in the propositions by appropriate record references. This is a sufficient presentation in this court.
In its Acts of 1931 (Vernon’s Ann. Oiv. St. art. 1757), the Legislature undertook to simplify the rules for briefing by amending article 1757, R. S. 1925, to read as follows:
“In all cases appealed to the Court of Civil Appeals and/or taken to the Supreme. Court, it shall be sufficient if said briefs contain the following:
“1. A statement as to the nature and result of the suit.
“2. The alleged error or errors upon which the appeal is predicated.
“3. The authorities relied upon.
“4. A statement and/or argument on the errors assigned. Provided, however, that the Supreme Court may adopt rules with reference to the form and time of filing of briefs generally, but not inconsistent with the provisions hereof. (As amended Acts 1931, 42nd Leg., p. 68, eh. 45, § 1.)”
This legislative effort to “simplify” court procedure seems to have been abortive, as usual, however, as evidenced by the resulting confusion and conflict among the decisions construing and applying the amendment. Heatley v. Ponder & Sons (Tex. Civ. App.) 40 S.W.(2d) 951; Security Union Ins. Co. v. Reed (Tex. Civ. App.) 42 S.W.(2d) 494; Lamar-Delta County Levee Imp. Dist. v. Dunn (Tex. Civ. App.) 42 S.W.(2d) 872; Harris v. Harris (Tex. Civ. App.) 44 S.W.(2d) 802; Commercial Standard Ins. Co. v. Noack (Tex. Civ. App.) 45 S.W.(2d) 798; Jennings-Progress Common School Dist. v. Marvin School Dist. (Tex. Civ. App.) 42 S.W.(2d) 805; Brown v. Gas. Co. (Tex. Civ. App.) 42 S.W.(2d) 869; Standard v. Coal Co. (Tex. Civ. App.) 47 S.W.(2d) 443; Johnson v. Huey (Tex. Civ. App.) 52 S.W.(2d) 278; Bustamante v. Haynes (Tex. Civ. App.) 55 S.W.(2d) 137, 141.
When analyzed and liberally construed, as it should be, the amendment substitutes the provision that the brief shall contain “the alleged error or errors upon which the appeal is predicated,” in lieu of the provision in the existing rulés that the brief shall contain “propositions or points upon which the appeal is predicated.” This substitution means nothing, of course, since a statement of the “alleged error” is best presented through a “proposition or point of law.”
Apparently, the only change actually effected by the amendment is to eliminate from existing rules the futile requirements that an appellant’s assignments of error and an alphabetical list of his authorities be grouped in his brief. Those requirements never served any useful purpose, but only incumbered the brief by adding to its bulk and cost. Bustamante v. Haynes, supra.
Certainly the amendment does not affect existing rules and statutes relating to the preservation of objections and exceptions required to be made in trial courts, or, as stated in Bustamante v. Haynes, supra: “Article 1757, as amended, in no manner lessens the obligation of the litigant to apprise the trial court of the complaints and contentions he expects to urge on appeal. The statutes relating to and requiring motions for new trial below and the preservation of the record thereon are not affected by article 1757, and are still in full force. So also is the requirement that the litigant may make nos complaint in this court, other than of fundamental error, that he did not make below, and no position taken below may be asserted here except through a specific designation of error in the complainant’s brief, whether such designation be called ‘assignment’ or something else. In short, article 1757 does not excuse the parties from standing in this court upon the same errors assigned below; it does restrict their complaints here to those made below.”
We conclude that justice will be better served by a remand than by rendition, and accordingly it is ordered that the judgment be reversed and the cause remanded for another trial, at the cost of appellee.