Opinion
Application No. 9561.
Decided February 2, 1916.
Practice in Supreme Court — Life Insurance.
After the affirmance on appeal of a recovery against a life insurance company on the supposed death of insured, he was discovered to be still alive. The Supreme Court, on motions filed by counsel for both parties concurring in asking such action, grants the application of appellant insurer for a writ of error and reverses the judgment, remanding to the District Court with directions to dismiss the suit. (P. 14.)
Application for writ of error to the Court of Civil Appeals for the First District, in an appeal from Nacogdoches County.
Mrs. Parsons sued the Knights of Maccabees and recovered judgment. Defendant appealed, and on affirmance ( 179 S.W. 78) applied for writ of error. It was claimed on the trial that insured was killed when the railway depot at Lufkin, where he had a desk, was blown up by an explosion of dynamite stored there. The evidence supporting the conclusion of his death is given in the opinion by the appellate court.
Chas. B. Braun, for plaintiff in error.
Blount Strong, Geo. S. King, and Kahn Williams, for defendant in error.
This was a suit by Mrs. Lena Parsons on a policy of life insurance issued to George Frank Parsons in which Mrs. Parsons was the beneficiary. In the trial court a judgment was rendered in favor of the plaintiff, afterwards affirmed in the Court of Civil Appeals. The principal issue upon the trial was whether or not George Frank Parsons was in fact dead. It appears that since the affirmance of the judgment in the Court of Civil Appeals he has been discovered to be alive, revealing that no judgment on the policy ought to have been rendered. Under this condition both the plaintiff and defendant have filed motions in court, asking that the petition for writ of error be granted and the judgments of the District Court and Court of Civil Appeals be reversed and the cause remanded to the District Court with instructions that it be dismissed at the plaintiff's cost.
We think this is the proper disposition to be made of the case. The petition for writ of error is accordingly granted; the judgments of the Court of Civil Appeals and District Court are reversed, and the cause remanded to the District Court to be there dismissed at the plaintiff's cost. Reversed and remanded with directions.