(dissenting on rehearing).
I find myself unable to agree with the-majority on rehearing, being still of- the opinion that our original disposition of the appeal, by reversing the judgment below and remanding the cause for new trial, was. proper. It should not have been dismissed summarily without leave to amend, as the court did in this instance. The purpose of the new rules is well stated by Circuit Judge Sibley Fifth Circuit, in De Loach et al. v. Crowley’s Inc., 1 F.2d 378, at page 380, as-follows: “Under he Rules of Civil Procedure a case consists not in the pleadings but the evidence, for which the pleadings furnish the basis. C. ;es are generally to be tried on the proofs rather than the pleadings. Demurrers are abolished. A petition may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law.to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim. But the principle is no longer of force that pleadings will be construed strictly against the pleader. Rule 8(f) [Federal Rules of Civil Procedure, 28 U.S.C.A.] says that ‘all pleadings shall be so construed as to do substantial justice/ Just what this means is not clear, but it excludes requiring technical exactness, or the making of refined inferences against the pleader, and requires an effort fairly to understand what he attempts to set forth. Expensive trials of meritless claims are'sought to be avoided in the main by pretrial and summary judgment procedures. We think this petition ought not to have been dismissed on motion.”
The same reasoning should, and in my opinion does, apply to our Texas Rules, and to this case.
Too, under our Texas practice it is error to dismiss a cause without leave to amend, after the sustaining of a motion to dismiss, or a demurrer. Smith v. Hood, Tex.Civ.App., 143 S.W.2d 646, and cases there cited. The judgment below should have been reversed and remanded.