Shaw v. Universal Life & Accident Ins. Co. , 123 S.W.2d 738 ( 1938 )

Upon further consideration of this record and briefs of the parties, I have concluded the judgment of the court below should have been reformed to recite a dismissal without prejudice rather than as entered that plaintiff "go hence without day"; the latter form implying a trial on the merits. 33 Tex.Jur. (Pleading Sec. 155 p. 598). Feeling that the effect of the original opinion is to distinctly abridge the wide discretion uniformly accorded the trial court relative to its passing on sufficiency of pleading prior to a trial, as well as to matters generally pertaining to conduct of trials, I believe this judgment as above reformed should be affirmed. My grounds of dissent will be stated briefly:

It must be admitted of course that when exceptions to parts of pleadings are sustained, such parts, for purposes of trial, are entirely eliminated. Further, as the majority opinion points out, the party against whom such orders are made waives no rights in amending to conform to the "law of the case" as determined by the court; his rights being fully preserved by exception shown in appropriate court order. Dist. Ct. Rules 53-55; Willis v. Graf, Tex. Civ. App. 257 S.W. 664. It is only in case of a voluntary amendment, without excepting, that the matters here under discussion are waived. Pleadings in which changes are required to meet the action of the court on exceptions are held to be involuntary amendments, or pleading reformed by the court. Wiley, Adm'r, v. Harrison et al., 105 Okla. 280, 232 P. 816, 38 A.L.R. 1408, whose rulings thereon are always properly reviewable.

In an appeal of this character, brought about wholly by the refusal of plaintiff to amend after the sustaining of many exceptions to defects in her petition, we must assume the correctness of the court's action on the numerous exceptions involved, and that a sound discretion was exercised; and thereafter the burden or affirmative duty rests upon appellant to show, after such special exceptions are sustained, and objectionable parts entirely eliminated, that sufficient facts remain pleaded, in the court's opinion, to justify a recovery in event of proof to support the same. 33 Tex.Jur. supra, Sec. 153. Until appellant has discharged this duty, we are not called upon to decide, as does the original opinion, whether the trial court ruled properly or incorrectly on the exceptions in question; and in so doing we are assuming the prerogatives of the trial court, and infringing upon functions which, for the time being, are solely within the discretion of such court pertaining to interlocutory matters. It seems to me that we are giving premature and undue assistance to a party who is before us by reason of her own willful conduct (through her attorney) in ignoring usual and customary orders with reference to amendment of pleadings. The personal opinion of the litigant is thereby permitted to override court orders made in the progress of trial; and such practice, on the other hand, should be condemned in the interest of orderly procedure. At least upon this appeal, the action of the trial court being presumably correct, I repeat, the primary burden is upon appellant to show that, after all exceptions have been sustained and the matters and pleadings stricken by reason thereof, a cause of action remains properly pleaded to authorize the introduction of evidence based thereon. This burden plaintiff has completely failed to meet. For instance, numerous exceptions were sustained by Judge Hughes, requiring the petition to be made more definite and certain in fact allegations. Many others eliminated conclusions of the pleader until supported by issuable facts. To visualize the exact condition of such petition after these rulings on exceptions, and to determine what character of action remained for the reception of evidence (the majority opinion conceding that paragraphs 9 and 10 should be stricken), to my mind, must be answered by one with a far better legal perspective than the writer. The situation just referred to presents no abuse of discretion in dismissing the petition without prejudice upon refusal to amend and it is not our province, or within our jurisdiction, to hold otherwise until an orderly trial is had, after due amendment, with the saving of all necessary exceptions to the court's action in event of a later appeal.

The remedy suggested by the majority, of contempt proceedings against the offending party, might not prove efficacious; could reasonably work a distinct hardship upon opposing counsel and abridges the power of the particular court to enforce its orders, judgments and decrees.

However, if it be permissible to investigate the sustained exceptions, I think the same were correctly disposed of by the trial court, except possibly as to defendant's exceptions 12a and 12e to paragraph 5 of plaintiff's pleadings, and 14a as to paragraph 7; but these were relatively unimportant, and the sustaining or even overruling of same would have resulted in no hardship or prejudice to either party. The original opinion holds the trial court's rulings were proper only as to paragraphs 9 and 10 of the petition, involving misjoinder of a tort action (exemplary damages) with the primary suit on contract. It follows, therefore, that paragraph 3 of the petition to which defendant's exception No. 10 was leveled, was likewise properly sustained by the court, appellant admitting in her brief that paragraph 3, in its entirety, was with reference to facts in support of her claim for exemplary damages.

But if I be mistaken in the above observations, any other disposition of this case than an affirmance thereof is directly in conflict with Overstreet et ux. v. Donnell, Tex. Civ. App. 75 S.W.2d 937, writ dismissed, holding that where special exceptions, designed to require a better and more complete statement of facts in the petition, are sustained, the court is not required to proceed with the objectionable matter in the pleading; and such petition was properly dismissed after plaintiff had been granted full opportunity to amend but refused to do so. Judge Funderburk, speaking for the Eastland Court, there said [page 938]: "The trial court overruled the general demurrer, and, therefore, the judgment of dismissal should upon this appeal be tested by the validity of the grounds upon which the judgment was predicated. Plaintiffs' petition was so defective that we can scarcely determine from a reading of it the nature of the cause of action sought to be alleged, even as against the defendant Donnell. It was undoubtedly subject to special exceptions. The court sustained a number of special exceptions. It is not material to the present inquiry whether all of such special exceptions were properly sustained. The material inquiry is: Were any of them properly sustained? It is our conclusion that a number of exceptions designed to require a better and more complete statement of the facts upon which the plaintiffs relied for recovery were properly sustained. The action of the court in sustaining such special exceptions was an expression of the court's judgment that they should not appear in their then existing form in the plaintiffs' trial pleadings. Plaintiffs had the right, and were granted full opportunity, to file an amended petition to meet the court's ruling. The court was not required to proceed to trial with the objectionable matter in the trial pleadings. Plaintiffs having refused to amend, the court properly, we think, dismissed the suit."