Atley SHERMAN et ux., Petitioners, v. PROVIDENT AMERICAN INSURANCE COMPANY, Respondent, 421 S.W.2d 652

GRIFFIN, Justice. In this cause petitioners, Sherman and wife, filed a suit in the County Court at law, Jefferson County, Texas, against respondent Insurance Company, as defendant, to recover hospital and clinical service benefits in the sum of $216.00 plus $100.00' attorney’s fee and 12% penalty. The defendant answered, pleading certain exclusions and limitations contained in the policy which relieved defendant of liability.

At the close of the plaintiffs’ testimony the trial court granted defendant’s motion for an instructed verdict, and upon the return of such verdict, the trial court rendered judgment for the defendant. On appeal to the Court of Civil Appeals the trial court’s judgment was affirmed. 404 S.W.2d 340.

In order to give this Court jurisdiction of this case a conflict is alleged to exist between the holding of the Court of Civil Appeals in the case at bar that under the record herein the burden of proof was on the plaintiffs to negate the pleaded exclusions and limitations and the contrary holding in the case of Old Line Mutual Life Insurance Company v. Tilger, 264 S.W.2d 557 (Tex.Civ.App., 1953), no writ history. We recognize that such a conflict does exist.

At the time this Court granted this application for writ of error, it was thought we would be able to pass upon the sufficiency of the defendant’s pleading of the exclusions and limitations contained in the policy. Various law professors have filed herein amicus curiae briefs in which it is asserted that the pleadings of defendant contained in his paragraph 4 were not sufficient under Rule 94, Texas Rules of Civil Procedure, to place the burden of proof upon plaintiffs to negate the exclusions and limitations of the policy.

Defendant specifically pleaded in defense to the plaintiffs’ suit, “the following provisions, exclusions and limitations contained in the said policy, to-wit: (

a) the provisions, limitations and exclusions contained in the insuring clause of said policy.” There are sub-heads (

b) through (

i) of similar pleadings in paragraph 4. Many of the policy exceptions pleaded by respondent and included in its motion as grounds for an instructed verdict were obviously sham defenses. To seek in this manner to frustrate the intended purpose of Rule 94 violates both its spirit and its letter; but we know of no authority, either of rule of procedure or of decided case, which authorizes this Court to reverse the judgment of the trial court because it failed in the absence of motion or exception, to strike or disregard the sham defenses, particularly since petitioners have made no complaint thereof on appeal.

Plaintiffs in their motion for rehearing, filed on our original action passing on their application for writ of error, adopted the attack made on defendant’s pleading and as contained in the amicus curiae briefs. Prior to the time plaintiffs filed their motion for rehearing they had made no attack on the pleadings contained in defendant’s answer either in the trial court or the two appellate courts.

An examination of the Statement of Facts shows that plaintiffs recognized that the pleadings of defendant in paragraph 4 were of a general nature, but plaintiffs made no complaint to the trial court nor filed any exception to such pleading as required by Rules 90 and 91, Texas Rules of Civil Procedure. Realizing all of this, the attorney did not file a single exception to the pleadings of defendant; he did not present to the trial court any request oral or written which in any manner questioned the sufficiency of defendant’s pleadings.

The plaintiffs’ attorney accepted the fact that the pleadings were sufficient to raise all defenses pleaded, and he never at any time during the trial presented his exceptions to, nor asked for a ruling by, the trial court on the sufficiency of defendant’s pleadings. See Rule 67, Texas Rules of Civil Procedure. In fact, both sides proceeded upon the premise that the pleadings of defendant raised the exceptions and exclusions of the policy.

Plaintiffs, while agreeing that defendant’s pleadings were sufficient to raise the exceptions and exclusions contained in the policy and consenting that the pleadings of defendant were sufficient to raise the issues in the policy limitations and exclusions, contended, relying on the Tilger case (264 S.W.2d 557) by the El Paso Court of Civil Appeals, that the defendant had the burden of proof in establishing the exceptions and exclusions and plaintiffs had no duty to put on any evidence.

In plaintiffs’ briefs filed in the Court of Civil Appeals and in this Court, plaintiffs have set out what in their opinion was the question to be decided. Appellants’ brief in the Court of Civil Appeals states: “The question to be resolved in this case is who had the burden of proof.

The plaintiffs contend that they have met their burden of proof to establish their case, and that the defendant who plead all of their exceptions and limitations in the policy, failed to go forward with their proof under their exceptions and limitations, and that it was error on the part of the trial court to grant judgment to the defendant on the ground that the plaintiffs did not negative all the exceptions and limitations plead by the defendant.” This was confirmed by plaintiffs’ counsel in his oral argument before this Court.

Rule 90, Vernon’s Texas Rules Ann., in plain and unambiguous language provides in part, “[e]very defect, omission or fault in a pleading either in form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account.” (Emphasis added.) Insufficiency of pleadings cannot be raised for the first time in the appellate courts. Bednarz v.

State, 142 Tex. 138, 176 S.W.2d 562 (1944); Texas Osage Co-Op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App., 1943), writ refused. This last case has been cited in many cases down through Olivares v. Service Trust Company (Tex.Civ.App., 1964), 385 S.W.2d 687, 688, no writ history, and its holding has never been questioned. Therefore, we do not have before us and cannot decide the question regarding the sufficiency of defendant’s allegations in the case at bar.

On the point of conflict as to the burden of proof, the Court of Civil Appeals in the case at bar has correctly decided that the burden of proof was on the plaintiffs to negative the exclusions and limitations contained in the policy and pleaded as a defense by defendant’s answer. International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938) and Travelers Ins. Co. v. Harris, 212 S.W. 933 (Tex. Com.App., 1919). The Supreme Court adopted the judgment and approved the holding of the Commission on the question discussed in that case.

Accordingly, we disapprove the contrary holding in Old Line Mutual Life Ins. Co. v. Tilger, 264 S.W.2d 557 (Tex.Civ.App.,1953), no writ history. The judgments of both courts below are affirmed.