Appellee's counsel calls our attention to a provision in the contract requiring all policies issued and not delivered within thirty days from their dates to be returned to the company, and in the event of such return the agents were to charge themselves with the medical examiner's fees, and insists, under this clause, that the evidence relating to the Addington policy was properly excluded by the County Court, unless appellants had proved that the policy was recalled by appellee before the expiration of the thirty days.
We are unable to determine from the record whether it was recalled before the expiration of the thirty days or afterwards. If before, unless for some good reason, we think the appellee would be liable as indicated in the original opinion; but if afterwards, we are inclined to think that *Page 454 this fact ought to be set up and proved by the appellee, it being in avoidance of appellants' right to recover under another and different clause of the contract.
It seems that we were in error in holding that the appellee, in order to recover, should plead and prove that it had a permit from our Secretary of State to do business in this State, as required by articles 745 and 746 of our Revised Statutes. The appellee being a life insurance corporation, and required by chapter 3, title 58, Revised Statutes, to procure a certificate of authority to do business in this State from the Commissioner of Insurance, is especially excepted from the operation of articles 745 and 746 by article 747.
Otherwise adhering to our original opinion, the motion for rehearing is overruled.
Rehearing denied.