The opinion
MARTIN, Justice
(dissenting).
The majority opinion .states, “It is admitted by all parties that the releases are *358 free of ambiguity.” This opinion concurs as to such statement but respectfully dissents from the majority opinion for the following reasons. The releases copied in the majority opinion constitute a full release from liability and were required to be reformed or. set aside upon proper pleading and proof of fraud, accident or mistake before a valid judgment could be awarded appellees against appellant. The further opinion is here expressed that the trial court permitted, over objection, improper testimony on the part of Mrs. Ro-den and that such testimony was of such prejudicial nature as to cause harm to appellant. These points will be discussed in their order.
Appellees seek to make much of the fact that appellant’s attorneys did not know about the loan receipts discussed in the majority opinion at the time of the settlement and did not rely thereon. Nothing is said, however, concerning the fact that such loan receipts were actually delivered to appellant’s attorneys as supporting data at the time of the delivery of the full releases as shown by the Statement of Facts on pages 195, 196, 198, 199 and 264. It is not assumed that appellees seriously contend that lack of knowledge on the part of appellant’s attorneys as to the loan receipts or as to the fact appellant was delivered a full release can change the character of either of said written instruments. It also appears to be pertinent that the delivery of the full releases is supported by the production of the loan receipts showing full authorization from Manning and Ro-den to their agents to deliver such full releases to the appellant. Even under appel-lees’ theory that the only requirement necessary to change a full release into a partial release is to show the intent of the parties, a theory refuted by all the authorities and the basis of this dissent, it would appear that the loan receipts giving authority to Manning and Roden’s agents to execute a full settlement and release of their claims would shed light on even the intention of -the parties at the time of the delivery of the full releases. At least such receipts evidence clearly that Manning and Roden’s agents were given the authority to execute' and deliver the full releases as delivered to appellant.
Appellees also make much of the use of the word or term “subrogation” as used in the preamble of the releases given appellant and their entire contention is that the releases were rendered partial releases merely by the use of the word “subrogation” in -the preamble of the instruments and that they were entitled to introduce evidence that the releases as delivered did not express their intention.
The term “subrogation” in itself, or the use thereof in the releases, connotes absolutely nothing in so far as determining whether the releases given appellant are partial releases or full releases. This proposition is clearly sustained by an examination of the cause now before us. Appellant- introduced pictures showing the front of Manning’s duplex house. Such pictures showed the front wall and the front of the roof intact and also gave an excellent view down one side of the house. In the face of these revealing pictures of the house, appellees sought to nullify the impression given by the same by testimony that the entire back part of the house was burned out and destroyed leaving only the front wall standing. “It was just a hull back of the front.” But, miraculously, Manning’s furniture and personal property on one side of the duplex suffered no major damage and the Insurance Company paid this claim on the personal property and this suit contains no pleadings or claim as to any damage to Manning’s personal property. It must, therefore, be assumed that Manning, at least, received a full and satisfactory insurance payment for his personal property and accepted the same as full payment of such damage. In fact, the record impels the thought that the $8,700 paid as insurance to Manning and Roden may have completely covered all damage suffered despite appellees’ contentions to the contrary as to the items other than Manning’s personal property. But, in this thought, had Manning and Roden accepted the $8,700 as their full damage, can any serious contention be made that the releases delivered under such circumstances by the Insurance Companies would have *359 differed in a single word or phrase from those actually delivered the appellant and here in issue. Nor can it be .seriously contended that such releases would have been rendered partial releases merely by. the use of the term “subrogation” therein.
But the issue will be brought directly in line with the explicit situation here existing under appellees’ contention that the use of the term “subrogation” rendered the releases partial releases rather than full releases. When the appellant paid the sum of $8,000 to appellees’ Insurance Companies, it was reimbursing them for the sum they paid Manning for his personal property as well as the other items of damage. It is an inescapable conclusion that as to Manning’s personal property the sub-rogation claim appellant paid the Insurance Companies represented a full and final payment and that the releases given appellant in so far as they covered Manning’s personal property were a full, and final release. This is further affirmed by the fact that Manning makes no claim for this 'item of the damage in this suit. Therefore, we are faced in the cause itself with the unanswerable proposition that despite the use of the term “subrogation” as used in the preamble of the releases that the same were in truth and in fact a full and final release of Manning’s claim for his personal property damage. “Subrogation claim” in itself may therefore connote a full settlement as conclusively as a partial settlement and such term is meaningless in itself in construing the releases in issue as partial releases rather than full releases as drawn.
Attention is further called to paragraph five of the releases as to this language, “has asserted a claim against Anderson Furniture Company for payment of all loss and damage to said dwelling.” (Emphasis added). This language, in the preamble of the releases, does not support the contention that the releases were merely for the Companys’ subrogation claims respectively.
Since the term “subrogation” as used in the preamble of the releases is meaningless within itself in determining whether the releases are partial rather than full releases as drawn, the next step is to examine the specific terms of the releases. No discussion will be given on this phase of the releases as it is believed that the language of the releases is sufficient to clarify the issue, “Does hereby release the said Anderson Furniture Company of and from any and all claims, demands, causes of action, damages, suits or cost zvhatever by reason of said occurrence and any and all resulting loss or damage to the dwelling ozvned by Emory E. Manning and wife, Mary Oleta Manning, on the date of said loss." (Emphasis added).
These releases, drawn by an attorney of many years experience in this field of law, were full releases and were required to be reformed or set aside before judgment could be granted appellees as against appellant. Under the conclusion arrived at in the above paragraphs that the releases were full releases and were required to be reformed, appellant’s points 1, 3, 4, 6, 7 and 8 raise the issue on which this dissenting opinion is based, to wit: “It is too well settled to need citation of authorities that a court of equity, in the absence of fraud, accident, or mistake, cannot change the terms of a contract.” Davis v. Davis, 141 Tex. 613 , 175 S.W.2d 226, 230 .
Appellees, Roden and Manning, in their pleadings only charge the two Insurance Companies and appellant with acting in collusion and in fraud to deprive them of their claims. There is not one line of pleading by such- parties denying that the releases given appellant are full releases nor is there even any pleading by Roden and Manning that such releases did not evidence the intention of the parties thereto. Their pleadings in effect admit the giving of a full release. There is not one line of pleading that appellant exercised any fraud in procuring these full releases from the Insurance Companies that were acting as agents for Roden and Manning. Nor is there a scintilla of evidence in the record of any collusion between the Insurance Companies and - appellant and no evidence of probative force as to fraud in this record. In fact, it may safely be stated that appellees Roden and Manning in the trial of the cause, abandoned their plea of collusion and fraud existing be *360 tween appellant and their Insurance Companies. The issue stated herein is recognized by the fact that the trial court instructed a verdict for hoth Insurance Companies and for all like appellees in the cause and could have correctly instructed a verdict for appellant in so far as the element of fraud is concerned.
The case is utterly bare of any element of fraud and this is further admitted by the appellees taking no exception to the court’s action in instructing a verdict for all the Insurance Companies. This finding leaves only the element of “accident and mistake” in issue. Although all the appellees shun the very thought of alleging that any mistake was made in the drawing, execution and delivery of the releases in both their pleadings and in their proof seeking reformation, this element will be discussed since “accident” is not an issue in the cause or even hinted at in either the pleading or the proof presented by any appellee. •
“A mistake, in order to authorize the reformation of an instrument, should be pleaded clearly, specifically, with particularity, and with precision, and should be distinctly charged, the particular mistake being set forth, and how the mistake occurred, when the mistake occurred, and why it occurred.” 76 C.J.S., Reformation of Instruments, § 74-b, page 437. In this connection it is asserted that a painstaking examination of the pleadings of Roden and Manning will not reveal a single line of pleading asserting that the full releases were given by either mistake or accident.
It is too elementary for citation of authority that a judgment must be based on both pleading and evidence.
In the sole thought of completeness in discussing the issue, a unique point is here observed and should be adjudicated by the courts. The rule is recognized that permits omissions in the pleadings of one party to be supplied by the pleadings of the opposite party. The rule has also gone so far as to permit omissions in one party’s pleadings to be supplied by pleadings of other parties to the cause. But, the point here discussed is whether a party having wholly failed to plead a particular defense can rely upon pleadings of other parties in the cause. Sound principle dictates that only “omissions” can be supplied by other pleadings in the cause and not pleadings in their entirety. To rule otherwise than here stated would permit a party to enter a lawsuit and without any pleadings recover on another party’s petition or answer.
Although it is believed that we can go no further than supplying “omissions” in appellees’ pleadings from other pleadings in the cause and that appellee cannot recover on the other appellees’ pleadings in this cause without, at least, adopting same, Roden and Manning could have gained nothing even had they adopted the pleadings of the other appellees in their entirety as such pleadings likewise wholly fail to plead either accident or mistake. Let us briefly observe the pleadings of all other appellees on this point although they can, under the principle hereinabove discussed, avail Roden and Manning nothing.
It is recognized that the word “mistake” need not be used but certainly the pleadings must allege in some fashion that a mistake was made and how it was made and that thereby a full release was delivered appellant rather than a partial release. On behalf of brevity, paragraph XI of the pleadings of the Fireman’s Fund Insurance Company best summarizes the pleadings of both Insurance Companies, and all appellees other than Manning and Roden, to wit: “XI. This defendant would show .that if the release which it made and delivered to Anderson Furniture Company should be' construed to constitute a release of any claim of the plaintiffs, Manning and wife, same did not evidence the intention of the parties and did not evidence the intention of this defendant, constituted a mistake in verbage which should be reformed in order that the true intent of a release of this defendant, of its claim against the Anderson Furniture Company on account of its said $5200.00 payment be carried into force and effect. Said release should be reformed to reach the true intent." (Emphasis added). It merely must be brought to mind that such pleadings were drawn by an attorney with years of experience in the field of insur- *361 anee law, as were the releases in issue likewise so drawn, and it is not believed that such attorney lacked the ability to allege clearly, specifically and with particularity the mistake and how it occurred, when the mistake occurred and why it occurred, if a mistake occurred, and if the parties sought to plead “mistake.” “The allegations made in the petition as grounds for reformation amount to nothing more than an averment that the intention of the parties was different from that which the [releases] expressed. * * *” There is no pleading in the cause to serve as a basis for reformation. Davis v. Davis, supra.
Let us next concede there was proper pleading of accident and mistake for the purpose of examining the cause as to whether there is any evidence in the record to support such pleading. There is not a single word of testimony in the entire statement of facts alleging that a mistake was made in either the drawing, the execution, or in the delivery of the full releases. In fact, the evidence affirmatively supports the proposition that there was no mistake made in the drawing, execution and delivery of a full release. Even Manning and Roden’s pleading develop this last proposition.
Only one person was qualified to testify on the element of mistake or accident in the drawing of the releases, J. Alex Blake-ley. It is undisputed that he drew the releases out of the presence of the attorneys for appellant and without any information or suggestion from them. In fact, the record reveals that appellant’s attorneys knew nothing of the full release until Blakeley apprised young attorney Bane of such fact. It is here conceded that Blakeley testified at length as to the “intent” of the parties but a careful examination of his testimony reveals that he not only does not admit by express words or statement that he erred or made a mistake or accidentally drew a full release instead of a partial release but there is not even an intimation that he made a mistake in drawing the releases in issue or that by accident he drew a full release instead of a partial, release. The pleadings, as stated, “amount to nothing more than an averment that the intention of the parties was different from that which the deeds (releases) expressed and the parol evidence went no further. There was, therefore, neither pleading nor proof that could serve as the basis for reformation.” Davis v. Davis, supra.
But, let us pursue further the allegation made hereinabove that Blakeley’s testimony not only does not reveal any accident or mistake but goes even further and reveals that no accident or mistake occurred in the drawing, execution and delivery of the full releases. In this examination let us still bear in mind that Blakeley was an attorney experienced in the field of insurance law and attendant details. The astuteness of his ability is fully attested by the fact that he compromised and settled an insurance subrogation claim in the amount of $8,700 for the sum of $8,000 cash.
“Q. Is it, or not, a fact that you told Mr. Bane (young attorney for appellant) ‘If you want to give these-folks (meaning Roden and Manning) some trouble, why don’t you plead those releases.’ ? A. I might have said something similar to that.”
A further examination of his final statement on this phase of the testimony reveals :
“Q. Didn’t you tell Lee Bane, ‘If you want to give them some trouble, why don’t you plead those releases’? A. I might have.”
It should be further observed that the party who actually executed the releases for the Insurance Companies found no fault with them. No discussion of the above testimony is required as it is revealing enough in itself, but it is worthy of note that counsel for Fireman’s Fund Insurance Company, recognizing the deadly potency of this -admission, asked:
“Q. (By Mr. Coe) At the time you made the settlement, did you have in mind that it might give the plaintiff trouble?” (S. F, 269)
Although this question and the answer thereto were , erroneously admitted over proper objection- of appellant, it, is also noted that Blakeley’s answer was not. re *362 sponsive, as conceded by the trial court,- in that he testified, “We did not anticipate * * What he had in his mind and anticipated at the time is still unanswered, other than by the testimony in the paragraph above shown. This phase of the case impels attention to the fact that the entire statement of facts is filled with the secret thoughts, intentions, discussions of compromise and the beliefs of all appellees theoretically admitted as a basis for the setting aside of the written releases, which all parties concede are wholly unambiguous.
Summarizing to this point, it is submitted that an examination of all the pleadings in the cause as well as the evidence in the record reveals that the cause is clearly and concisely within the ruling of Davis v. Davis, supra, and the cause reflects error in granting judgment to Ro-den and Manning against the Anderson Furniture Company, there being neither sufficient pleadings nor evidence to reform or set aside the full release held by Anderson Furniture Company. Appellant’s points 1, 3, 4, 6, 7 and 8 should have been sustained. Davis v. Davis, supra; Rogers v. Rogers, Tex.Com.App., 15 S.W.2d 1037 .
A further ground for reversal of the judgment of the trial court is raised by appellant’s points 10 and 11. Mrs. Homer Anderson Roden executed an instrument to her Insurance Company entitled “Loan Receipt.” The fact that she was a married woman at the time will not be discussed here for this issue was not brought forward in the briefs nor is it material to the issue here discussed. The “Loan Receipt” appointed the Company “agent and attorney-in-fact with irrevocable power to collect any claim or claims, and to begin, prosecute, compromise or withdraw in his, its or their name, but at the expense of the said Company, any and all legal proceedings that the said Company may deem necessary to enforce such claim or claims, and to execute in the name of the undersigned, any documents that may be necessary to carry the same into effect for the purposes of this agreement.” Following the above language was a short paragraph as follows; “Any legal proceedings are to be under the exclusive direction and control of said Company.”. This paragraph was stricken out by - Mrs. Roden. Such loan receipt will not be discussed further than stating that it is a clear and unambiguous instrument and the act of Mrs. Roden in striking out the clause was one easily interpreted by the court from the written agreement itself and the line stricken therefrom.
The court permitted, over numerous and valid objections of the appellees, the following interrogation and response by Mrs. Roden in regard to the “Loan Receipt” and ■the line stricken therefrom:
“Q. (By Mr. Hauer) Was it not your intention in having an ink line drawn through that sentence to keep the Mercury Insurance Company from having exclusive control, of the lawsuit which you had at the time this loan receipt was executed against Anderson Furniture Company? A. It was my intention that I was going to sue for the -balance of it. And I did not intend for the Mercury Insurance Company to take any part—
“Q. I believe you said it was your intention to let the insurance company prosecute the claim for the insured loss and that you, yourself, would prosecute your claim for that amount over and above the $2,000 insurance which had been paid to you? A. It was my intention to let my attorneys act in behalf of collecting the balance that was due me over this $2000 when I marked through there. I wasn’t giving Mercury Insurance Company authority to collect anything but the $2000.”
Appellant saved his exception to the ruling of the trial court in admitting the above testimony and brings forward his points of error 10 and 11 asserting this testimony was improperly admitted over its objection. An examination of the entire cause discloses that all written instruments were discarded and the appellees allowed to testify over objections as to their secret intentions as to the subjects in such *363 written instruments and that the above testimony is an inflammatory and condensed presentation of the theory of the appellees as presented in the cause.
The instrument quoted above as to its material portions was one executed between appellee and her Insurance Company and is clear, concise and without any ambiguity and is subject only to interpretation by the trial court. The admission of this testimony, a summary of the appellees’ theory presented over objection throughout the trial was particularly damaging to the appellant in that the pleadings of Ro-den and Manning allege that they had been defrauded of their claims by collusion and fraud practiced by their two Insurance Companies and the appellant. The objectionable testimony of Mrs. Roden was meant to, and it is believed did impress the jury that an inexperienced woman had Been overreached by her own insurance company in the execution of the written “Loan Receipt” authorizing her insurance company to proceed with a full settlement. Appellant bore the entire brunt of the damaging effect of this testimony though not present at the time of the execution of this “Loan Receipt” or having any part iri the creation of the issue on which Mrs. Roden testified. Manning by his pleadings sought $6,750 actual damage and the further sum of $2,500 exemplary damage. The jury awarded Manning $6,720 actual damage and ■ $2,500 exemplary damage. The appellee, Roden, sought $6,281.32 actual damage and recovered $6,130.32 actual damage. He sought the further sum of $2,500 exemplary damage and recovered the sum of $2,500 exemplary damage. It is apparent that appellant was prejudiced by the testimony of Mrs. Roden in the light of the award by the jury of the item of $5,000 exemplary damage, alone.
The entire record was erroneously packed with this exact type of testimony admitted by the trial court over the proper objections of appellant under the appellees’ theory that they could take the clear, -unambiguous full releases and by the introduction of testimony merely as to their “intent” transform the full releases into partial releases and that without either pleading or proof of fraud, accident or mistake.
Appellees’, Insurance Companies, motion for an instructed verdict as against ap-pellees, Roden and Manning, on the basis that there was no evidence in the record of any fraud or collusion is well taken. Likewise well taken is their contention, .asserted by trial amendment and also in their motions for instructed verdict against Manning and Roden, "that the Insurance Companies in giving full releases to appellant did no more than they were expressly authorized to do by the written authority given 'them by Roden and Manning and that such parties were estopped .to claim any damage arising thereby. Ap-pellees’, Insurance Companies, further motion for instructed verdict as against appellant based on the proposition that -there was no pleading by appellant over and against' the appellees, Insurance Companies, is also well taken. The correctness of the Companies’ contentions is within the principles herein discussed and is recognized by the -trial court’s judgment and also by the fact that appellees, Roden and Manning, assign nó error as to the instructed verdict given as against them.
This d;ssent is filed in the opinion that appellees’ -theory as adopted by the court in this cause violates the fundamental rules governing the rights of parties to contract in writing and that if such theory be finally recognized as a correct rule of law, will permit - parties to execute their solemn written agreement and then reform 'the' same by court decree merely by introduction of proof of their intention at the time the contract was executed and delivered— all without either pleading or proof of fraud, accident or mistake.
The cause should be reversed and the cause remanded as between appellees, 'Ro-den and Manning, and the appellant. The cause should be affirmed wherein'the judgment denies all relief to both appellees, Roden and Manning, and to appellant as against the Fireman’s Fund Insurance Company, Mercury Insurance Company and all appellees ■ other than Roden and Manning.