concurring and dissenting.
I dissent from that part of the court’s opinion that affirms the court of appeals’ judgment that plaintiff take nothing against her insurance agent because her action was barred by limitations. I would reverse the judgment of the court of appeals as to Mercer; however, I concur in the court’s decision to reverse the judgment of the court of appeals as to Glacier General Assurance Company and remand to the trial court for entry of judgment *520against Glacier in accordance with the jury’s verdict.
I disagree with the court’s holding that Woods’ claim was barred by the statute of limitations. While Woods had the burden to request a discovery rule issue and did not, Mercer raised no objection to the omission from the charge. See Tex.R.Civ.P. 274. Thus, two forms of waiver are involved-plaintiff Woods’ failure to submit issues, and defendant Mercer’s failure to object or otherwise complain of the omission.
I agree that limitations is an affirmative defense, and the defendant Mercer bore the initial burden of proving its limitations defense and securing the submission of appropriate special issues. Tex.R.Civ.P. 279. If no issues are submitted, Rule 279 provides that this independent ground of defense is waived unless established as a matter of law. If the plaintiff counters that the discovery rule excuses his failure to file within the appropriate period of limitations, proof of the discovery rule as an exception to limitations shifts to the plaintiff. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 (1962); National Resort Communities v. Short, 712 S.W.2d 200 (Tex.App.—Austin 1986, writ ref’d n.r.e.). As a party who benefits by the discovery rule, the plaintiff must seek jury findings on this fact issue of whether he discovered, or in the exercise of reasonable diligence should have discovered the cause of action.
Since proof of the discovery rule as an exception to limitations rests upon the party asserting the exception, it was Woods, not Mercer, who had the burden of proof and the burden of securing the submission of a jury issue on the discovery rule.
Woods’ failure to submit a discovery rule issue, however, was put to rest by Mercer’s failure to object to its omission. Because Mercer raised no objection and because the evidence does not conclusively establish that the cause is barred by limitations, I would hold the court of appeals erred in holding Woods’ claims were barred by limitations. Although both parties contributed to the submission of a faulty charge, the failure to object to the omission is the greater sin. Trials are costly and time-consuming to the litigants as well as to the taxpaying public. This court has the obligation to prevent all litigants from lying behind the log, and later seeking refuge in a faulty charge complaint. Since retrials are to be discouraged, we must strictly enforce the harsh stance taken by the Texas Rules of Procedure — that omissions not pointed out at trial cannot be complained of on appeal. Therefore, by Mercer’s failure at trial to point out the omission of Woods’ discovery rule issue, Mercer waived its right to complain that the suit was barred by limitations.
The court today confuses the role of the discovery rule. It concludes that the discovery rule constitutes an “independent ground of defense” under Tex.R.Civ.P. 279, and thus that Woods’ failure to submit a discovery rule issue constitutes waiver of that defense.
As recognized by the court, past opinions fraught with ambiguity have done little to clarify how the discovery rule is to be treated. Regrettably in Smith v. Knight, 608 S.W.2d 165, 166 (Tex.1980), this court labeled the discovery rule an affirmative defense. This would nonsensically make it an affirmative defense to an affirmative defense. Although Woods clearly had the burden of offering evidence and submitting issues on the discovery rule, the rule itself is not an independent ground of defense under Rule 279, as it was misstated to be in Smith v. Knight, 608 S.W.2d at 166.
The evidence did not conclusively establish that Woods’ cause was barred by limitations. The evidence at trial established that Woods did not learn of Mercer’s misrepresentations concerning Glacier’s procedures for application of tail coverage until sometime after the judgment in federal court, April 14, 1981. This contention is supported by the fact that Woods first assigned her cause of action against Glacier to the Bassham family in 1983 and did not assign her cause of action against Mercer until 1985. Furthermore, Woods testified she was aware Mercer had not obtained tail coverage for her sometime in October 1978. Woods further testified that *521she was not aware of the conversations Benefield had with Mercer’s representatives at the time they occurred.
Because Mercer raised no objection to Woods’ failure to request a discovery rule issue and because the evidence does not conclusively establish that the cause is barred under the discovery rule, I would hold the court of appeals erred in holding Woods’ DTPA claims were barred by limitations. I would reverse the court of appeals’ judgment as to both Mercer and Glacier.
RAY and ROBERTSON, JJ., join in this concurring and dissenting opinion.