
    FIRST TEXAS PRUDENTIAL INS. CO. v. APPLEWHITE.
    No. 8864.
    Court of Civil Appeals of Texas. San Antonio.
    June 15, 1932.
    Rehearing Denied July 13, 1932.
    Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    Weber & Wolfe, of San Antonio, for appel-lee.
   SMITH, J.

This action was brought to recover upon a life insurance policy. The insurance company has appealed from an adverse judgment. The appeal rests upon three propositions of law presented by appellant.

It is first contended that the court erred in refusing, upon proper request, to direct a verdict for appellant, upon the theory that the undisputed evidence showed that the insured was not in good health at the time the insurance policy sued on was delivered, but, on the contrary, was at that time afflicted with “fatal ailments” which shortly resulted in the insured’s death, it being provided in the policy that in such case the contract should not become effective. We overrule this contention, embraced in appellant’s first and second propositions. There was material evidence which, although meager, was nevertheless sufficient to take the issue of the insured’s good health to the jury, whose finding thereon in favor of appellee is binding upon this court.

In its third proposition appellant complains of the refusal of the trial court to admit in evidence the application of the insured upon which the policy in question was issued. We are of the opinion that the evidence was clearly admissible, but its exclusion in this instance does not constitute reversible error. That evidence was not material to the only issue of fact in the case, to wit, that of the insured’s good health at the inception of the ■contract, and its exclusion could not have injured appellant.

The judgment is affirmed.  