
    AMERICAN NAT. INS. CO. v. LAWSON.
    No. 13573.
    Court of Civil Appeals of Texas. Port Worth.
    May 19, 1939.
    W. B. Handley, of Dallas, for appellant.
    R. C. Armstrong, of Fort Worth, for ap-pellee.
   DUNKLIN, Chief Justice.

The American National Insurance Company has appealed from a judgment in favor of appellee for the sum stipulated in a life insurance policy issued by appellant on the life of Mrs. Ethel H. Lawson, wife of ap-pellee.

The policy embodied this stipulation: “No obligation is assumed by the company prior to the date hereof nor unless on said date the insured is alive and in sound health.”

The case was tried on an agreed statement of facts filed with the record. That agreement recited that Mrs. Ethel H. Lawson, the insured, was afflicted with pulmonary tuberculosis on September 10th, 1934, which was the date of the policy, and that she died from that ailment, in an advanced stage, on March 7th, 1936. Other facts agreed to entitled plaintiff to a recovery of the amount awarded, if right thereto was not precluded by the provision in the policy quoted, which was pleaded as a defense.

In answer to a certified question submitted by this court, the Supreme Court, in opinion of date April 26th, 1939, held that by reason of the quoted provision the policy never became effective as a binding contract of insurance.

Accordingly, the judgment of the trial court for the sum stipulated in the face of the policy is reversed and'judgment is here rendered in favor of the appellant, denying that relief. In lieu thereof, judgment is here rendered in favor of the appellee for the sum of $15, premiums paid on the policy, which appellant tendered to plaintiff prior to the institution of the suit. By reason of such tender, all costs in the trial court and of appeal to this court are taxed against the appellee.  