“As a general rule, evidence of fraud by either party to induce the other to enter a contract is admissible to prevent a party from perpetuating the fraud from profiting thereby.”
How later courts described this case
- “As a general rule, evidence of fraud by either party to induce the other to enter a contract is admissible to prevent a party from perpetuating the fraud from profiting thereby.”
Written by the judges who cited it.
The opinion
OP ALA, Justice,
with whom KAUGER, Justice, joins, concurring.
The issue tendered for our resolution by the petition for certiorari to review a certified in limine ruling is whether the defendant below, an insurer who was sued for bad-faith refusal to pay a fire loss alleged to have been covered by a homeowners’ policy, may assert at trial its pleaded defense of fraud in the insured’s application, although that application was not on a form approved by the State Insurance Board pursuant to the provisions of 36 O.S. 1981 § 3610.
While I concur in the court’s opinion and in its resolution of the question before us, I write separately to stress that the question certified to us in this cause does not deal solely with admissibility of evidence at trial. Rather, it is one that substantially affects the merits of the insurer’s pleaded defense of fraud. The in limine ruling in effect strikes that defense from the insurer’s answer. Issues dehors the merits are not properly certifiable in advance of trial for review of a trial court’s interlocutory order. 1 Because the issue presented here is properly one “on the merits” of the controversy, I join in the court’s order granting certiorari and in the pronouncement rendered today. 2
. The pertinent provisions of 12 O.S. 1981 § 952 are:
“(a) The Supreme Court may reverse, vacate or modify....
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(b) * * A
3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that, an immediate appeal may materially advance the ultimate termination of the litigation; * * * ” [Emphasis mine.]
Community National Bank of Warr Acres v. Beasler, Okl., 520 P.2d 813, 814 [1974]; Young v. Oklahoma City, Old., 524 P.2d 22, 23 [1974] and White v. Wensauer, Okl., 702 P.2d 15, 16 [1985].
. The word “merits” has a well-defined meaning in law. It signifies the real or substantial grounds of action or of defense. Practice, procedure and evidence are not embraced within the term. These are matters "dehors the merits.” Flick v. Crouch, Okl., 434 P.2d 256, 261 [1967], See also, Tidmore v. Fullman, Okl., 646 P.2d 1278, 1283 [1982] (Opala, J., dissenting.) But cf. Kimery v. Public Service Company of Oklahoma, Okl., 562 P.2d 858 [1977],