I concur in the disposition of this case, but cannot assent to some of the conclusions announced in the opinion as to the effect of rule 31, on the admission filed by appellant in order to secure the right to open and close. Appellant's answer itself expressly admitted all the allegations in plaintiff's petition, except that the death of William Wilkes was accidental, and specifically stated as a fact, in defense of the plaintiff's claim, that the said William Wilkes "committed suicide by shooting himself through the body," etc. The admission filed is to the effect that the appellant "admits that the plaintiff has a good cause of action as set forth in her petition, except so far as the same may be defeated in whole or in part by the facts of defendant's second amended answer, filed herein on this the 27th day of May, 1919, *Page 598 constituting a good defense which may be established on the trial of this case." It cannot be reasonably asserted that the defendant intended to admit that the death of the said William Wilkes was accidental; it does appear that it did intend to admit all other facts alleged by the plaintiff except that in reference to the manner in which the insured met his death, and on this allegation alone it joined issue with the plaintiff. I agree that this admission did not give appellant the right to open and close, but I cannot agree that the mistaken attempt to bring itself within the terms of rule 31 would justify the court at any stage of the proceeding in construing the written admission to include a confession of a fact that it is clear from its terms was not meant to be included as admitted. The purpose of rules of procedure is to secure an expeditious trial on the merits of the controversy between the parties. Such rule should not, in my opinion, except where that is the necessary result of a liberal construction thereof, be so applied or construed as to become pitfalls to entrap the unwary litigant who may mistake his path. The defendant who makes a mistake, and over the objection of his adversary obtains the benefit of the rule and secures the right to open and close, gains no real advantage. Under such circumstances he has everything to lose and nothing to gain. If he loses in the trial court the judgment would not be disturbed on account of the error for which he was responsible. If he prevails, he has already furnished his opponent with the means of reversing the judgment. This consideration alone is it seems to me a sufficient safeguard against improper attempts to invoke the benefit of the rule. I think a reasonable application and construction of the rule should only result in turning back the litigant whenever it is found that he is on the wrong road. The rule does not, in my opinion, ever warrant the court as assuming as confessed facts which from the very terms of the admission it appears that the defendant did not intend to admit. These conclusions are supported by the decision of Frost v. Smith, 207 S.W. 392, and to a certain extent by some statements in the cases of Mutual Life Insurance Co. v. Simpson, 28 S.W. 837, and Wolnitzek v. Lewis, 183 S.W. 822. There is, as is shown by the opinion of Chief Justice Huff, considerable confusion in the decisions, and perhaps the weight of authority supports the opposite conclusion. This confusion will doubtless be cleared up by the opinion of the Supreme Court when it comes to decide the case of Frost v. Smith, supra, which is now pending on writ of error.