The opinion
' MARTIN, Justice
(dissenting).
It is elementary that if the trial court correctly ruled that appellant was not entitled to production of the policy of insurance on which the suit was based, that, likewise, secondary evidence was not admissible as to the policy and appellant failed to make out a case as ruled by the trial court in taking the case from the jury. But, this dissent is based on the proposition that the trial court erred in ruling that the appellant was not entitled to production of the policy at issue upon notice to produce being given in open court. This is the sole issue governing the appeal although the writer of this dissent does not agree with the majority as to either their summary of the issues in the cause or as to their statement of the facts disclosed by the record.
It is correct that two policies were mentioned by the agent of the appellee — one dated September 14, 1949 and one dated October 10, 1949. It is likewise correct that the inquiry made by counsel for appellant as to an insurance policy with the Fire Association of .Philadelphia was only in relation to policy No. F-5397 dated October 10, 1949. But, counsel for appellant testified that he was given'the number of the policy by the insurance agent of the appellee company. The agent for the company also testified, in regard to the policy under date of October 10, 1949, that the premium for same was paid from the return premium on the former policy. From the dates given, it is obvious that the former policy was the policy dated September 10, 1949. And áppellees never at any time objected to production in evidence of this policy on the ground that, there was a variance between the pleading and the policy sought to be introduced in evidence.
The undisputed evidence in the cause reveals that the building as insured was a total loss by fire and liability in the cause as to such building as destroyed is fixed by Article 6.13, Insurance Code,-Vernon’s Texas Civil Statutes, formerly Article 4929. “A fire insurance policy, in case of a total loss by fire of property insured, shall be held- and considered to be. a liquidated demand against the company, for the full amount of such policy. The provisions of this article shall not apply to personal property.” From the testimony in the cause, it is evident that this same clause had been incorporated in the policy here in issue as required by the provision of Article 6.13, supra..
It is not here conceded that the evidence in the cause reveals that policy No. F-5397, the policy dated October 10, 1949, or any other policy, had been cancelled, notice of such cancellation given to appellant and the premium as paid for the same returned to appellant. It is likewise observed ■ that counsel for appellees, in denying that he held policy of insurance No. F-5397 qualified such denial by his allegation that he held no such described policy payable to Raymond McClendon. (Emphasis added.) It is also readily recognized that this is a mere subterfuge and play on words in that counsel failed to recognize that a policy of insurance payable to Raymond- McClendon and Tom Long, as partners, would be a policy issued to. each of. the partners. Further, it is undisputed that appellant, McClendon,- purchased his partner’s- interest in the property prior to the fire loss and requested that *452 the insurance policy be changed to' his name as insured.
However, this appeal does not come here for a determination of the same on the merits of the cause of action but solely upon a ruling made by the trial court as to appellant’s demand for production of the policy in issue. It is not here conceded that the record reveals that counsel for appellant did not give notice in open court to appellees to produce the policy in issue. It is shown by the undisputed evidence in the cause that counsel for appellees had in his possession in court the policy in issue in the cause of action. ■ This 'fact was admitted in open court by counsel. It is likewise revealed by -the undisputed evidence that appellant’s counsel, in open court, duly made a demand on áppellees -to produce the'policy in issue. Appellant’s-notice to produce was sufficient in that it specifically described policy No. F-5397. It cannot be reasonably contended that the notice to produce as given by appellant’s counsel was not sufficient to place appellees’ counsel on notice as to the policy requested. 32 C.J.S., Evidence, § 845, p. 780. But, sufficiency of the notice to produce- cannot be an issue 'on this appeal for, upon demand being made on appellees’ counsel to produce the policy in issue, such notice to produce being by notice in open court and also by subpoena duces tecum, counsel for appellee made the following admission: “I will assume that the subpoena is served properly .and specifically and does describe the policy that they want”.
The above undisputed facts as taken from the record bring the appeal to the sole issue before this Court. Appellant’s counsel duly made a demand in open court for production of the policy in issue. Counsel for appellees presented only two objections in the trial court as to why he should not produce the policy. ■ Upon these two objections alone appellees’ counsel must rely for his refusal to produce the policy as demanded by counsel for appellant. One of counsels’ objections was that said counsel for appellees, who held the policy in issue, “has a confidential relation” and counsel’s second objection was that such counsel was immune from a subpoena and from testifying to those confidential relations. The trial court, at the time counsel for appellees made these two objections, stated:' “I will defer a ruling on'it until I see what the play is”. Following considerable maneuvering and discussion, the court sustained the two objections stated above as made by counsel for appellees. Under such ruling, the policy of insurance was not required to be produced in open court by counsel'fot appellees. .The court’s ruling that appellaht was not entitled to production of the policy in issue likewise ruled secondary evidence thereof inadmissible. The above ruling by the trial court was not only error but a substantial error of law as to the major issue in the cause.
It is worthy of note that, on oral argument being presented in the Court of Civil Appeals, counsel for appellee was asked by the Court whether he was submitting to the Court as a correct legal principle, the proposition that notice to produce an instrument as given in open court, where the instrument was in the. possession of the opposite party in court, was insufficient to require production of the instrument. To this query on the law,' counsel merely replied that he would admit thát he had been given notice in open court to produce the policy if that was sufficient. This admission made before the Court of Civil Appeals was in addition to counsel’s further admission in the trial of the cause that he had the specific policy in issue in his possession in court. It is further noted that counsel even went so far as to make the following admission in open court during the trial of the cause: “If we turn out to be incorrect we will produce it.” Upon the above facts and admissions in the record, the trial court made the following ruling: “If it proves to be correct that the plaintiff is entitled to the production of this policy under this procedure then it will be produced and used in evidence and, if not, your efforts have failed. If you want an on the spot, off the cuff ruling, I will sustain the defendant’s objection to it, and we will proceed from here.” , The court’s ruling likewise rendered secondary evidence of the policy inadmissible as revealed by' the record. To this *453 ruling of the court-, appellant noted an exception. In the face of this record and counsel’s admissions, the policy was never produced under either appellant’s demand for production of the policy as made in open court or under the subpoena duces tecum as served on appellees’ counsel.
The record has been discussed in more detail than the issue before this Court warrants as the sole issue here is whether appellees’ counsel should have been required to produce the appellant’s policy of insurance, as held by appellees’ counsel in court, upon said counsel being given notice in open court to produce the same. The fact that notice to produce was given counsel in open court is further strengthened by the fact that appellant’s counsel had issued a subpoena duces tecum and had the same served on counsel for appellees who admitted thereafter in open court that such subpoena was served properly and specifically and did describe'the policy of insurance the appellant wanted. In view of the principles of law clearly governing the issue here, it may be noted that the objection of counsel for appellees that his possession of the policy of insurance belonging to the appellant became a confidential communication when delivered to such counsel by his client, the company writing the insurance, is wholly without merit. Of like validity is his further objection that he was immune from subpoena while attending court.
The issue on appeal is governed by the well established rule as stated in 32 C.J.S., Evidence, § 847, p. 781: “Notice at trial. Notice given or demand made during the trial is generally sufficient where the document is in the possession of the adverse party or his attorney at the trial and is in court, or where the paper, although not actually in court, is so near that it can be speedily obtained. * * * Thus notice at the trial is sufficient where the papers are the subject of the action or defense.” See also Hill v. Houser, 51 Tex.Civ.App. 359 , 115 S.W. 112 , syl. 4 (Writ Refused) ; Commercial Standard Ins. Co. v. E. P. McKnight Chevrolet Co., Tex.Civ.App., 43 S.W.2d 636 , syl. 7 (Writ Refused), and City National Bank of Bowie v. Southern Casualty Co., Tex.Civ.App., 33 S.W.2d 830 , syl. 4.
Appellant’s Point I, should be sustained. The judgment of the trial, court should be reversed and the cause remanded for a trial of the case on its merits.