
    EATMAN v. EATMAN.
    (Court of Civil Appeals of Texas.
    Feb. 15, 1911.
    Insurance (§ 825) — Fraternal Insurance — Agreement to Pat Assessments — Effect.
    A husband, holding a mutual benefit certificate, agreed with his wife that, if she would pay the assessments, the money due on the certificate on his death should belong to her. She paid the assessments for a time, but then quit, because from the husband’s illness, she could not work, but had to care for him all the time. The local lodge paid the assessments. Sold, that the issue of whether her inability to pay the assessments was due to her necessary care for her husband, and that, but for her marital duty to do so, she would have kept up the payments, so that as between herself and husband she made no default, was for the jury.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 825.]
    On motion for rehearing.
    Granted, judgment reversed, and cause remanded.
    For former opinion, see 135 S. W. 165.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JAMES, C. J.

The motion directs our attention particularly to that part of the testimony of Mrs. Batman, as follows: “The reason I quit paying was because I had no money to pay with, and the clerk of the lodge told me that the lodge would attend to it, and I trusted them to do so, which I understood they did. 1-Ie was very feeble, and not able to work at all. I had to wait on him all the time.”

It seems to us that, if her inability to continue working to earn money to pay the assessments was due to the necessity of her having to devote all her time to waiting on her husband,-it was substantially the same thing as if he had called on her to quit working to nurse him. If she had, for a considerable time, labored and kept up the payments in accordance with the agreement, and would have continued to do so, but for her marital duty to give all her time to him in his extremity, and she had no other means of providing for the payments, as between them, he would not have been allowed to say, under those circumstances, that she had made default in the performance of the agreement. The testimony above quoted on the subject was meager, but was sufficient to warrant consideration of the fact and its submission to the jury.

We adhere to the rules of law governing this case as declared in the main opinion; but, upon considering what is said in this motion, we think enough was shown by appellant’s testimony to require the jury to pass upon the above question. The question whether or not her earnings were community or separate property is an immaterial one.

The motion is granted, judgment reversed, and cause remanded.  