Kansas Life Insurance v. First Bank , 124 Tex. 415 ( 1935 )

Mr. Judge SMEDLEY

delivered the opinion of the Commission of Appeals, Section A.

This is a companion case to Cause No. 1507-6260, The Kansas Life Insurance Company v. The First Bank of Truscott, this day decided (ante, p. 409, 78 S. W. (2d) 584). The suit is upon another policy of insurance of like amount and terms to those involved in that case, but issued on a different date, September 11, 1929. Otherwise the facts in the two cases are the same. The same single question is presented by the applications for writ of error in both cases.

The insured died within one year from the date of the policy involved in this case. This affords ho reason for a different decision, since the record shows that plaintiff in error made no contest of its liability until after the expiration of the period named in the incontestable clause. American National Insurance Company v Welsh (Com. App.), 22 S. W. (2d) 1063; Mutual Life Insurance Company v. Hurni Packing Company, 263 U. S., 167, 68 L. Ed., 235, 44 Sup. Ct., 90, 31 A. L. R., 102; note 31 A. L. R., pp. 108 and following.

The judgment of the Court of Civil Appeals and that of the district court are affirmed.

Opinion adopted by the Supreme Court January 30, 1935.