On Motion for Rehearing.
POPE, Justice.By trial amendment, filed after the evidence was closed, appellee, Esparza, pleaded that the insurer, through its agent who solicited the reinstatement, knew about Adolfo Esparza’s sickness, and thereby the company, by approving the reinstatement, waived any right to cancellation of the policy because of insured’s physical condition. Our opinion was in error in stating that there were no pleadings of waiver. However, as stated in the opinion, appellee made no request for an issue and none was submitted inquiring whether the insurer waived the fact of Esparza’s false answers. We do not depart from our conclusion, therefore, that the waiver issue was not in the case and was a fact issue. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820. Waiver is an affirmative defense. It is an independent ground of recovery or defense. and must be requested and submitted or it is waived. Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 214; Nu-Enamel Paint Co. v. Davis, Tex.Civ.App., 63 S.W.2d 861, 866; Connecticut General Life Ins. Co. v. Horner, Tex.Civ.App., 21 S.W.2d 45; White v. National-Ben Franklin Ins. Co., Tex.Civ.App., 1 S.W.2d 1117; 41-B, Tex. Jur., Trial—Civil Cases, § 430; 3 McDonald, Texas Civil Practice, § 12.36.
Andrews v. Powell, Tex.Civ.App., 242 S.W.2d 656, is cited for the point that the waiver may be deemed as found by the trail court in support of the judgment. In that case, however, the court failed to find that waiver existed and that decision does not rest upon the basis of a presumed finding because waiver was not pleaded, submitted, nor ‘ requested, and, therefore, as here, was not an issue in the case at all.
Appellee’s motion for rehearing is overruled.