ON MOTION FOR REHEARING
OSBORN, Justice.The Appellee has filed a motion for rehearing in which it strongly urges that this case should be controlled by the decision in Seale v. Nichols, 505 S.W.2d 251 (Tex.1974). The motion urges that when Mr. Hernandez returned the policy to the agent, there was no communicated intent that the policy not be cancelled. It is further contended that what Mr. Hernandez said in his affidavit or deposition about what he understood or intended does not suffice to establish a communicated intent that the policy not be cancelled. If the summary judgment evidence contained nothing more, we would agree. But the motion for rehearing fails to note that in the affidavit Mr. Hernandez said:
“* * * I then told Mr. Pineda * * that I wanted to let the workmen’s compensation insurance lapse * * *.”
Clearly, those words reflect an expressed communicated intention on the part of the policyholder. As noted in the earlier quote from 45 C.J.S. Insurance § 458 (1946), cancellation will not be effected where the surrender of the policy is for a purpose other than cancellation. Where the expressed intent upon surrender of the policy is for it to lapse, rather than to be can-celled, the party moving for summary judgment has not met its burden of proof and summary judgment should not have been granted.
The Appellee’s motion for rehearing is overruled.
PRESLAR, C. J., dissents.