dissenting.
*307I respectfully dissent from the majority holding that the facts show as a matter of law that on account of a lack of a meeting of minds, the life insurance contract in question was not made. I am of the opinion that the testimony raised the special issue submitted to the jury inquiring whether the contract intended to be made was made. The jury’s finding is that the insurance company and the applicant so intended.
The pertinent testimony, as is later shown, evidences the requisite mutual intention to make the policy contract sued on. The trial judge so viewed it, the jury so found, and the Fort Worth Court of Civil Appeals, being of opinion the evidence was sufficient to so show, upheld in a unanimous opinion the judgment rendered by the trial court on that finding. In fact the probative testimony is almost without dispute to that effect.
The essential facts, stripped of irrelevant surplusage, are that the applicant, George A. Hall, an airplane pilot, preparatory to leaving on a two month’s airplane trip, told the company’s agent with whom he was accustomed to deal, that he wanted a $20,000 life policy, filled out an application therefor and, since the agent did not know exactly what the monthly premiums would figure, gave him a salary deduction order for $------------ for the monthly premiums on the corporation (at Weatherford) of which Hall was president, to send with the application, as payment. The insurance company considered the application, the report of Hall’s physical examination and all other material matters (taking about two weeks to do so), accepted and retained the salary deduction order, issued the policy on the application made, attached the policy thereto, and mailed it to the agent. The applicant was in good health, was only 36 years old, but was in some measure overweight, necessitating that he be rated a few years (not known to the agent just how many) older than 36 years. There is no suggestion that the applicant was not in good health or that the agent and he were in collusion. Hall by executing and delivering the payment order in blank, thereby agreed in advance that the company might determine the applicable rate, which it did and wrote it in the policy. The company accepted the application, retained the order, issued the policy, set up the required security reserve and, before mailing the application with policy attached, to the agent, sent it to Austin for registration with the insurance commissioner. There was no variance between the application and attached policy.
The majority opinion proceeds on some theory of the com*308pany’s having made a counter offer to issue Hall a policy, which was pending when he was killed, and that therefore the parties did not intend to make the contract issued to Hall. The majority opinion decides the case on the identical point of whether the premium could be collected from Hall. This point depends upon whether the company and he intended to make a contract, which is the basic question involved.
Mr. Campbell, Assistant Secretary and Manager of the company’s policy-issue department testified that no policy was ever issued unless there was an application for the policy, and that the application, when attached, became part of the policy contract; also, he testified, that in issuing the policy in question the company had Hall’s application for it, that it issued the policy on that application, and neither requested nor required another. In other words, Hall’s application was the basis on which the company issued Hall his policy.
The policy was dated May 1, when issued on April 7, 1949, but provided that unless otherwise agreed in writing (and there is no other agreement) the policy dates back to the time of the application. The company’s secretary testified, and the policy reveals, that no requirement of delivery is made by its terms. That requirement was omitted from the policy. As stated in 1 Cooley’s Briefs on Insurance, p. 633, loe. cit. p. 627, actual delivery (absent such requirement) is not essential to the validity of the contract. 1 Couch on Insurance (First Ed.), p. 222 et seq. and U. S. Fidelity Life Ins. Co. v. Handley, 86 S. W. 2d 201, are to the same effect. It is not fatal, as a matter of law to the making of a contract that a blank amount is to be filled in when one party trusts it to another in the narrow range here involved of rating up a healthy 36-year-old man because he is somewhat overweight. Sentinel Fire Ins. Co. v. Anderson, 196 S. W. 2d 649; 2 Tex. Jur. 708. In other words the principle of a signer’s agreement to leave blank an uncertain amount to be filled in by the other party who has the means of ascertaining the correct amount, has been held to be, and is, under the present facts, a sound principle.
Provision for delivery was omitted from Hall’s policy. Hall and the agent knew manual delivery would be impossible as Hall was going in too short a time on the trip (in which his airplane crashed and killed him) for that to be done; and consequently they left no detail unattended to before Hall left. The jury doubtless gave consideration to the matters pointed out above as a basis for making its finding that the insurance *309company intended the policy to become effective immediately upon mailing it.
Both the company and Hall acted under the assumption that they had made a contract, as appears above. The actions of both, considered together as they must be, raised an issue of fact, to say the least, as to whether the policy contract was intended. The trial judge submitted the issue and the jury found in response “that George Hall and the * * * company intended said * * * insurance to become effective immediately, at the time of mailing said policy * * * without any further action on the part of * * * Hall.” In my opinion no basis is found in the record for the holding as a matter of law contrary to the foregoing finding.
Furthermore, there was no change of face, or question, on the part of the company until it learned of Hall’s death which occurred just two days after it mailed the policy. The recovery by Mrs. Hall in the courts below on the finding made, in my opinion, should be upheld by this Court.
Opinion delivered June 28, 1950.