15 S.W.2d 97 | Tex. App. | 1929
The contention of plaintiff in error, that the petition of defendants in error did not state a cause of action against it, seems to be on the theory that it was necessary for defendants in error to have alleged and they did not, that, after the policy was issued to Daines, he did not violate the stipulation set out in the statement above that it (the policy) should be "null and void" if he died in consequence of an intemperate use of alcohol or narcotics. Pelican Ins. Co. v. Troy Cooperative Ass'n,
Another contention presented by plaintiff in error is that the evidence did not warrant the finding involved in the judgment that Daines' death was not due to intemperate use of alcohol or narcotics by him. The contention seems to be on the theory that the burden of proving the cause of Daines' death was on defendants in error, and that they did not discharge the burden. Pelican Ins. Co. v. Troy Cooperative Ass'n, supra, and Travelers' Ins. Co. v. Harris (Tex.Com.App.)
We think the trial court had a right to look at the matter in the same way and to conclude it did not appear Daines' death was caused proximately (4 Cooley's Briefs on Ins. 3141), if at all, by intemperate use of alcohol or narcotics.
There was no evidence showing or tending to show that the heart trouble, from which Daines suffered, was caused by use by him of alcohol or narcotics.
The judgment is affirmed.