On Motion for Rehearing. Appellee requests us to file additional findings. We find nothing in the record showing that appellant, at any stage of the trial, including the time when the trial court sustained the motion to recall the jury and instruct a finding for appellee, made request to be permitted to amend its pleadings or withdraw its admission. Up until the instruction was given there was no necessity for the permission. At the time of giving the instruction it was too late, and would have been a useless and vain thing; the trial was over, and, whatever the effect of the admission, its force was fully expended. The original opinion is assailed vigorously in the holding that the petition substantially declared on two policies. It is asserted in the motion the allegations as to the first policy were matters of inducement. This may have been its purpose, but we think the petition subject to the interpretation given it. The appellant, in the answer filed, treated it as a separate cause, setting up the suicide clause contained in the first policy as defeating the action. If appellee had not established death by accident, but death had been shown, we doubt not appellee would have asserted and maintained a recovery upon the first policy for $5,000. If under the two policies recovery may be had, either on one or the other, the admission defeating one and not the other, under the rule defendant did not secure the right to open and close. Steed v. Petty, 65 Tex. 490; Sanders v. Bridges, 67 Tex. 93, 2 S.W. 663; Insurance Co. v. Simpson, 28 S.W. 837. It appears to be appellee's view that the state of the pleadings under the rule does not affect the admission, and that the pleadings only affect the question under the statute. Article 1953. By the wording of the rule necessarily the pleadings must be looked to in connection with the admission in order to determine the right, as there is nothing else to determine it, for the rule provides that this must be determined before the trial commences. One of the first cases, if not the first, construing this rule after its adoption, shows this to be true. It is there said, "If these issues are properly admitted by the defendant, and he, in reply, in the nature of a plea in confession and avoidance," takes the burden of proof, then he should have the right to open and conclude. Alstin's Ex'r v. Cundiff, 52 Tex. 460. It may be of interest to note that case also suggests the admission, couched in the general terms of the rule, will not be sufficient, but should be specific, so the jury will fully understand the facts admitted.
The rule is simply one of practice, and for the purpose, evidently, to expedite the trial and relieve the plaintiff of the necessity of proving his case upon consideration that the defendant take the burden. If the admission does not do this, the trial court should proceed in the usual course. In the instant case the court proceeded to try out the issue of suicide, receiving evidence pro and con, under the evident construction that *Page 599 the allegation of suicide did not admit the accident under the rule. Under the majority view, the court was in error in that particular, but as both the court and appellant made the same mistake, appellant ought not to be defeated in a legal right by the action of the court, made too late to remedy an error in a mere rule of practice; the minority opinion holding the course followed in this case should not have been taken because the admission was qualified by the answer referred to in the admission. In either event, the appellant, by its motion for new trial, and the appeal to this court, shows ground for equitable relief against a mistake in practice, in which in the trial of the case the trial court participated. Appellant's rights were fixed by the contract of insurance and the facts, and should be adjudicated accordingly; and, while if there was error by it in following, or attempting to follow, a rule of practice, it is not estopped under the peculiar circumstances of this case from having the real merits passed on by a jury. The trial court and counsel in this case evidently earnestly and sincerely desired to follow the proper rule of practice, but, owing to the condition of the decisions in this state, found great difficulty in ascertaining the correct thing to be done. Though the courts may be jangled on a rule of practice, we would not follow our particular views, where to do so would be to defeat a party in a substantial right. In reversing this case we have done so in order that the merits of the case may be tried, and the cause determined thereon, and not on a mere quibble in construing a rule of practice.
The motion is overruled.