Dissenting Opinion
NORVELL, Justice.The judgment in this case is not based upon the merits of the controversy. There is a genuine issue of fact as to whether the insurance policy sued upon had been procured by false representations as to the health of Mrs. Sherman. Although a jury had been impanelled, this issue was never submitted to it nor decided by the trial court. I realize that we must have procedural rules, and that upon occasion lawsuits will be determined by how lawyers use or fail to utilize these rules. However, the rendition of a judgment not based upon the merits of a controversy is a regrettable occurrence. Particularly is this true of suits upon insurance policies, considering the position the industry occupies in our economic system, its sales methods and the reliance placed upon its contracts by the buying *655public. Such an unfortunate occurrence or result should be avoided unless in such avoidance we raise greater evils by weakening or destroying our procedural system.
The majority cites Rule 90, Texas Rules of Civil Procedure, and takes the position that the plaintiff (petitioner) by failing to lodge proper exceptions to the defendant’s objectionable answer, has waived his right to have the true issue in the case submitted to the jury. I disagree with this position. To my mind, the answer of the defendant (respondent) constitutes an attempt by pleading to circumvent the provisions of Rule 94 and in effect reinstate the cumbersome, unjust and wholly unsatisfactory practice that existed in this state prior to the adoption of the 1941 Rules of Civil Procedure. It is the duty of this Court to promulgate and enforce rules of procedure and it follows that we should not permit such rules to be circumvented and defeated by the pleadings of litigants.
Instead of relying upon Rule 90 as a basis of affirmance, I would apply the rule applicable to sham pleadings and reverse the judgments of the courts below. We are not here dealing with an answer which is merely defective, vague or uncertain, but with one which had for its objective the raising of fictitious issues contrary to the aims and purposes sought to be accomplished by Rule 94.
The rule as to sham, vexatious or frivolous pleadings is stated in 41 Am.Jur. 527, Pleadings § 347, as follows:
“It has always been held that by virtue of its inherent power, a court has authority by summary means to prevent an abuse of its processes and peremptorily to dispose of causes of action or defenses that are sham, frivolous, or wholly vexatious. This power may be exercised, provided the vice clearly and indisputably appears, on the court’s own motion or on the motion of an adverse party to strike out the objectionable pleading. Not only is a court authorized to strike from the record a sham plea either with or without motion, but it may also disregard the plea without an express order striking it.”
In Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934), the Supreme Court of Florida said with a wealth of supporting authorities that:
“The power to eliminate sham pleadings is an indispensable power to the protection and maintenance of the character of the court, and the proper administration of justice.”
See also, Clark v. Life & Casualty Ins. Co., 245 Ky. 579, 53 S.W.2d 968, 84 A.L.R. 1420 (1932), Bank of America Nat. Trust & Sav. Ass’n v. Sunseri, 311 Pa. 114, 166 A. 573 (1933), Nieman v. Long, 31 F.Supp. 30 (E.D.Pa.1939), Nieman v. Soltis, 24 F.Supp. 1014 (E.D.Pa.1938), 71 C.J.S. Pleading § 460, p. 945.
I cannot construe Rule 90 as depriving this Court or any other Texas court of the power and duty to disregard a sham pleading upon its own motion.
The majority recognizes that “[m]any of the policy exceptions pleaded by respondent (defendant) and included in its motion as grounds for an instructed verdict were obviously sham defenses” and concedes that, “To seek in this manner to frustrate the intended purpose of Rule 94 violates both its spirit and its letter;” but then concludes that it is unable to do anything about it. I concede that the somewhat drastic and technical rule against sham pleading should be exercised with extreme caution, 71 C.J.S. Pleading § 460(c), p. 948, but the answer filed in this case cannot be classified as one creating a doubtful situation. The defendant pleaded all of the exceptions and limitations to the general liability stated in the policy. Mrs. Sherman was a 59 year old housewife and the motion for instructed verdict following *656the allegations of the answer contained such far-fetched grounds as these:
“There is no evidence that Mrs. Sherman’s hospitalization made the basis of this suit, was not due to childbirth, pregnancy or any complication resulting therefrom. * * * There is no evidence that Mrs. Sherman’s hospitalization, made the basis of this suit, did not result wholly or partly in or from military or naval service or war.”
The motion then continued with 37 additional specifications of like nature. Clearly, as the majority of the Court recognized, a case involving sham defenses was presented.
The petitioner here asserts that it was the burden of the insurance company to both plead and prove facts bringing the case within the exceptions and limitations to the general liability of the insurance policy. The greater weight of American authority seems to be in accord with this contention. Perhaps, in view of the result reached in this case, the rule that the burden of proof follows the burden of pleading should be adopted in Texas. However, we recently reviewed the history of Rule 94 in Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965), and concluded' that when an issue as to an exception or limitation to the general liability of the policy was raised by proper pleading, the plaintiff had the burden of proving that the risk to which the loss was attributable did not come within the pleaded exception or limitation. However, it does not follow from petitioner’s insistence upon an argument that has been rejected by this Court that he is before the appellate courts without a proper point of error. The action of the trial court, of which petitioner complains, was the giving of a peremptory instruction directing the jury to return a verdict for the defendant. This complaint has been preserved by points contained in petitioner’s brief and motion for rehearing in the Court of Civil Appeals and in his application for writ of error filed in this Court. It is not the office of a point to specify the reason why a court’s action is deemed erroneous. Clarendon v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100 (1893); Lang v. Harwood, 145 S.W.2d 945 (Tex.Civ.App.1940, no writ).1 The function of the point is simply to state the action of a court complained of, e. g. overruling an exception, granting a continuance, excluding proffered evidence, or granting a motion for an instructed verdict. In Warren v. Houston Oil Company, 6 S.W.2d 341 (Tex.Com.App.1948), it was said that an assignment of error was sufficient which merely stated that the trial court erred in giving a summary (peremptory) instruction. See also, Green v. Hall, 228 S.W. 183 (Tex.Com.App.1921).
The narrow issue in this case is whether Rule 90 or the rule against sham pleading should control. For the reasons stated, I submit that the pleading of all the exceptions and limitations to the general liability of the policy should be disregarded and this cause remanded for trial upon the issue of fraudulent representation. Certainly, the result so far achieved in this case can only be described as a procedural miscarriage. I respectfully dissent from the order of affirmance.
SMITH, J., joins in this dissent.. The opinioin in Lang v. Harwood was written by Mr. Justice James P. Alexander, a leader in procedural reform, while still a member of the Waco Court of Civil Appeals, but after he had been elected Chief Justice of this Court.