Hanover Fire Ins. Co. v. D. W. Ray & Son , 26 S.W.2d 295 ( 1930 )

On Motion for Rehearing.

The appellees insist that we erred in sustaining the assignment of error addressed to the action of the court in sustaining appel-lees’ exception to that portion of defendant’s answer copied in the opinion on original hearing; since, as contended by appellees, allegations in substance to the same effect in the same answer were not stricken out, and therefore the defense of fraudulent collusion between defendant’s agent Joe Sheppard and the assured was still available to the defendant notwithstanding the exclusion of other portions of the answer. The point made is that in view of what has just been stated, the error, if any, ’in the' ruling of the court just pointed out was harmless, at all events.

We cannot concur with appellees in the view so taken. It is manifest, from the ruling of the court in striking out the allegations in appellant’s answer just referred to, that the trial court intended to hold, and did in effect rule, that the pleading of the defendant failed to present facts sufficient to show a fraudulent collusion between Joe Sheppard, the agent of the defendant, and the assured; and it would be unreasonable to hold that notwithstanding such ruling, counsel for defendant should believe that he would have the right to insist upon the same defense, introduce evidence in support thereof, and request the submission of that issue merely because similar allegations still remained in the pleading. And it is to be noted further that the allegations -so remaining were not so specific as those stricken out and apparently were more nearly subject to the exceptions addressed to the stricken pleading on the ground that it presented mere conclusions of law, rather than facts upon which the defense of fraudulent collusion was predicated. See Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765, and decisions there cited.

The motion for rehearing is overruled.