On Motion for Rehearing.
We have heretofore reversed the judgment with instructions to. render judgment for appellant. Appellee contends that if the judgment is not affirmed the case should be remanded for a trial on its merits. We adhere to our interpretation of the pol*122icy. Appellant’s contention that the incontestability clause is applicable and controls the decision is overruled. Appellee contends, among other things, that appellant has assigned his claim against the insurance company. Since the judgment must be reversed and it was rendered on appellee’s motion for summary judgment and there has been no trial on the merits it should not be rendered if there is any matter of fact to be determined or if justice may be better served by a remand.
Our former judgment is set aside. The judgment is reversed and the cause remanded for a trial on the merits.