On Rehearing.
YOUNG and CRAMER, Justices.Reference in original opinion to the‘employment contract of Mrs. Shortnacy (excluded by the trial court) was unnecessary to the points under discussion, the instrument being merely corroborative of the record proper.
It appears -without dispute that this lady was no more than a solicitating agent of the-company, Art. 5063, Vernon’s Ann.Civ.St.,. providing in part that “such agent shall not have the power to waive, change or alter any of the terms or conditions of the application or policy.” Likewise the policy on its face recites that “This policy shall take effect upon delivery to the insured and payment of the first premium thereon to the Company or its duly authorized agent during the insured’s lifetime and sound health.”'
In the face of the foregoing statute and policy limitations of which the holder had notice, 24 Tex.Jur., sec. 109, p. 810, it cannot be claimed that mere possession of the policy by such an agent is sufficient indicium of actual or even apparent authority for unconditional delivery thereof without payment of premium or extension of credit in such connection. Willis v. Texas Prudential Ins. Co., Tex.Civ.App., 101 S.W.2d 857, writ refused; Southland Life Ins. Co. v. Statler, 139 Tex. 496, 163 S.W.2d 623; Great American Casualty Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050, writ refused; Donaldson v. National Life & Accident Ins. Co., Tex.Civ.App., 53 S.W.2d 136, syl. 6, writ refused; Texas Prudential Ins. Co. v. Corn, Tex.Civ.App., 205 S.W.2d 78; Commonwealth Life & Accident Ins. Co. v. Nelligan, Tex.Civ.App., 220 S.W.2d 209.
Appellee seeks to apply to the instant record the presumption of lawful delivery arising from the insured’s possession of policy; but in Eaton v. New York Life Ins. Co., 315 Pa. 68, 172 A. 121, 95 A.L.R. 462, there were involved neither above quoted provisions of a policy contract, nor statutory enactments comparable to Arts. 4732, secs. 1 and 2, and 5063 of our Insurance Laws.
We concur in above judgment of reversal and rendition.