The appellee brought this suit in the county court to recover the sum of $376, and interest, alleged to be due him by appellant as advance payment of premium upon a life insurance policy in appellant company, and in his petition alleged the following as the basis for his recovery:
"That heretofore, to wit, on or about the 20th day of December, A.D. 1919, plaintiff made an application in writing upon one of its printed forms, at the instance and solicitation of its agents, W. K. Bass and C. C. Boudereaux, for a policy of life insurance in the sum of $10,000, and at the same time paid to and delivered to defendant's agents the sum of $376.90 as evidenced by binding receipt No. 69542, duly countersigned by W. K. Bass and C. C. Boudereaux, agents, dated at Paducah, Tex., the 20th day of December, A.D. 1919, the fourth clause of which provides: `If a policy be not issued on the application and examination received by the company at its home office (and only in that event) the sum above mentioned will be returned on the surrender of this receipt to the company. In the event the policy should be issued, and the applicant declines to accept same, any premium paid shall be retained by the company in consideration of its carrying the insurance for the time paid.' Whereby defendant became bound and liable to refund said premium, and promised to refund same."
This is followed in the petition by the allegation that the defendant has not issued the policy; that the plaintiff tendered a return of the receipt; that defendant refused to accept same, and has failed and refused to return or refund said advance premium. *Page 1030
The defendant presented a general demurrer to this petition, which was overruled, and, on trial before the court, upon hearing the evidence, judgment was rendered for plaintiff for the amount of such premium and interest.
Analyzing the various assignments of error we conclude that they can all be determined by decision of the questions: Was it incumbent upon the plaintiff to allege that he had presented himself to the defendant's medical examiner, and had been examined? and, did the failure of plaintiff to so allege preclude him from recovery in the case?
A party suing must, in his petition, state a cause of action. The plaintiff declares upon the receipt given him by the company's agents, and says that by reason of the promise in same to refund the premium he is entitled to recover. That portion of the receipt which he expressly pleads provides for a return of the premium, in the event only that a policy be not issued on the application and examination received by the company at its home office. Plaintiff alleges the making of the application, and, by inference only, its delivery to the defendant's agents. We are not deciding the question as to whether or not any duty devolved on the plaintiff to allege the delivery of the application and examination to the company at its home office, but we do hold that the plaintiff must have alleged that he had been examined by the company's medical examiner, or he must have pleaded some legal excuse for not doing so. The plaintiff introduced in evidence the whole of the receipt upon which he declared his cause of action. The third clause in said receipt is as follows:
"Third, This receipt will not be binding upon the company: (a) If issued for any sum in excess of the sum stated by the applicant in such application to have been paid; (b) if erasures or additions have been made in the printed form or written dates; (c) if the person to whom it is issued is not promptly examined by a regular appointed examiner of the Texas Life Insurance Company of Waco, Tex. The holder hereof agrees to undergo such medical examination as the Company may deem necessary."
The plaintiff evidently realized that it was incumbent on him to prove that he did stand such medical examination for he offers testimony of that fact. If it was necessary to prove it to sustain his cause of action in this connection he must have alleged it.
This being a suit upon a written instrument, and it requiring a medical examination and the petition failing to affirmatively allege that the plaintiff had complied with the requirements of said instrument the petition fails to state a cause of action, and the judgment rendered in his favor is fundamentally erroneous, Root v. Childs et al., 68 Minn. 142,70 N.W. 1087; Texas Home Mutual Fire Insurance Co. v. Bowlin (Tex.Civ.App.) 70 S.W. 797.
That evidence was offered on the trial to establish the fact that plaintiff had submitted to such examination does not cure the error in his failure to plead, as reference must be had alone to the allegations contained in the petition to determine whether it states a cause of action or not. Niagara Fire Ins. Co. v. Lollar (Tex.Civ.App.)156 S.W. 1140.
Because of the failure of plaintiff's petition to state a cause of action, the case is reversed and remanded for a new trial.