Grand Fraternity v. Mulkey

185 S.W. 582 | Tex. App. | 1910

Appellant calls attention to the fact that the original petition was not introduced in evidence, and therefore the signature of Parker Buck thereto cannot be considered as any evidence that those persons are the same attorneys who wrote the letter set out in our original opinion notifying defendant of the death of W. D. Mulkey. We concur in this contention, but adhere to the conclusion noted that proof of death of the insured was waived by defendant by reason of other facts found by us, and in support of our conclusion the following additional authorities are cited: Merchants' Ins. Co. v. Nowlin, 56 S.W. 198; East Texas Fire Ins. Co. v. Brown, 82 Tex. 637, 18 S.W. 713; Mutual Ins. Co. v. Mattingly,77 Tex. 164, 13 S.W. 1016; Continental Fire Ins. Co. v. Whitaker,112 Tenn. 151, 79 S.W. 119, 64 L.R.A. 451, 105 Am. St. Rep. 916; 19 Cyc. 867.

We were in error in our finding that the evidence showed without controversy that appellant received and elected to retain the dues for April as well as for May and June. But, while the evidence introduced by defendant tended to show that the dues for the month of April were never paid during that month and were never received by defendant at its home office, yet its local collector, Ridinger, testified that he received the dues on April 30th, and that the same were forwarded to defendant at its home office in Philadelphia, and plaintiff also introduced in evidence a receipt for the April dues, dated April 30th, and duly signed by the collector. This evidence certainly sustains the finding by the jury that the dues for the month of April were duly received by defendant.

The motion for rehearing is overruled.

Affirmed. Writ of error refused.