(dissenting).
The Court in its opinion states, “When the defendant company attached the riders excluding the various illnesses mentioned above to the policies in question it was not issuing plaintiff the policies applied for.”
It is my opinion that this conclusion does not find undisputed support in the record. Unless it does have such support then the Court errs in reversing this cause and rendering judgment for appellant. I, therefore, respectfully dissent
If a contract of insurance was consummated between the parties then it is undisputed that such contract has not been mutually rescinded.
In appellee’s motion for summary judgment it is stated:
“ * * * that on or about September 28, 1960, plaintiff made application to defendant for its standard hospitalization policy and its standard monthly cash hospital indemnity policy. That the defendant received plaintiff’s application for said policies on or about September 30, 1960, and that on or about November 5, 1960, defendant issued to plaintiff the policies in question, * * *”
Without re-copying it, I refer to the letter of December 5, 1960, from appellant to appellee’s attorneys set out in the Court’s opinion in which it is stated, in part, in referring to the rider about which appellee had complained, “To the best of our knowledge, this is standard procedure with all insurance companies writing a non-cancellable hospitalization plan.”
Attached to appellant’s motion for summary judgment is an affidavit of one of its officers containing the following statement:
*699“STATE OF TEXAS COUNTY OF DALLAS
AFFIDAVIT
“BEFORE ME, the undersigned authority, on this day personally appeared Douglas E. Bergman, who being known to me as a credible person of legal age, qualified to make this Affidavit, and being first duly sworn upon oath deposes and says:
“That I, Douglas E. Bergman, make this Affidavit of my own knowledge; that I have the authority to make this Affidavit; that I make this Affidavit as Vice-President of Legal Security Life Insurance Company in Cause No. 6,791, 35th Judicial District Court of McCulloch County, Texas, styled: H. Earl Ward vs. Legal Security Life Insurance Company.
“That the Defendant, on or about September 30, 1960, received from Plaintiff two applications for insurance coverage. One application being for the Defendant’s standard hospitalization policy and the other application being for the Defendant’s monthly cash hospitalization indemnity policy. Each respective application is dated September 28, 1960. That the Defendant on or about November 5, 1960, issued to Plaintiff its Policy No. H-21477, standard monthly cash hospital indemnity policy, and its Policy No. H-21478, being its standard hospitalization policy. That a photostatic copy of each said policy is attached to Defendant’s First Amended Original Answer. That at the time Defendant issued the policies in question it attached to each said policy a rider excluding arthritis, sciatica, neuritis, lumbago or rheumatism in any form.”
The riders in question recite that they are “attached to and forming a part of” the policy of insurance.
When these policies were sent to appellee by appellant there apparently was no letter of transmittal accompanying them since no such letter appears in the record. The inference to be drawn from this fact is, to me, that such policies were forwarded in response to and in accordance with the application of appellee. Any other inference would impute bad faith to appellant, an inference which should not be indulged.
It is my opinion that an issue of fact is presented as to whether or not a contract, or contracts, of insurance between the parties was effected, the admissions and disclaimers of the parties not resolving this issue as a matter of law.