Guardian Burial Ass'n v. Rodgers , 1942 Tex. App. LEXIS 402 ( 1942 )

CODY, Justice.

This suit originated in a justice court of Brazoria County. It was brought by ap-pellee against appellant upon a burial certificate which appellant issued to B. L. Rodgers, the son of appellee'; it carried a premium of 25⅜⅞ per month. Appellee’s said son was killed in an automobile accident near Victoria, Texas, while in the army, and while the certificate was in full force and effect. Appellant’s place of business was in Houston.

The case was tried to a jury, and was submitted on special issues, all of which were answered in appellee’s favor. From a judgment for $150.00 in appellee’s favor, appellant has perfected its appeal.

Appellee sued appellant for $150. It is appellant’s contention that the certificate gave it the right to elect whether, upon the insured’s death, it would pay $150, or furnish the insured with a burial, inclusive of appropriate merchandise, including a coffin described in the certificate. Appellant’s defense to the suit is that it was not notified of the insured’s death until after he was buried, and that it would have elected to bury insured had it been notified in time to bury him, but that appellee has made it impossible to perform under the obligation of the certificate which appellant elected; appellant tendered back to appellee all premiums which it had been paid.

Appellee has not favored us with a brief. We assume, for purposes of this opinion, that the certificate invests appellant with the right to elect whether, upon the insured’s death, it will bury him or will pay $150.00. In such case appellant could not be deprived of its right of election by appellee’s failure to notify it of the insured’s death. However, when the insured died, the obligation of appellant under the certificate became fixed, either to pay $150.00 or furnish a burial. In order to exercise its right of election it was incumbent on appellant to tender performance of the obligation which it elected to be' bound by. While it could not be expected to offer to bury insured, who had already been buried, it could have tendered such performance of its elected obligation as was possible. Included in its obligation to furnish insured with a burial was the obligation to deliver a valuable coffin. Appellant has never tendered appellee the coffin or its reasonable value. If appellee failed to take such steps as were necessary to effect appellant with notice in time to furnish insured with a burial, nevertheless there still remained a substantial part of such obligation which it could have performed had it elected to be bound by the burial obligation of the certificate. Instead of tendering performance of its burial obligation, appellant sought only to repudiate all obligation under the certificate by tendering back the premiums which it had received — amounting to less than five dollars. Appellant could not be discharged of its obligation under the certificate by merely professing that it would have elected to furnish the insured with a burial had it received timely notice of the insured’s death; it was necessary for appellant, in order to effect an election, to tender such performance of the 'obligation which it professed to have elected, as remained possible to perform. Therefore, as a matter of law, appellant did not exercise its right of election under the certificate; it simply failed and refused to perform its obligation thereunder. Since appellant did not, as a matter of law, exercise any right of election secured to it by the certificate, it waived such right, and the court could properly render judgment for appellee on the obligation which appellee sought to enforce. •

Since the court rendered the only proper judgment possible under the record in this case, it is our duty to affirm it. It is so ordered.

Affirmed.