American Nat. Ins. Co. v. Chavez , 100 S.W.2d 787 ( 1936 )

HIGGINS, Justice.

This is a suit upon a life insurance policy in the principal sum of $356. The policy provided that in the event of the death of the insured from suicide, whether sane or insane, within two years from the date thereof, the liability of the insurer should be limited to the return of the premiums paid. The insured died within the two-year period.' The insurer defended upon the ground of suicide. This issue was found against it by the jury. Judgment was rendered for the amount of the policy with-the statutory penalty; also for $200 as attorney’s fees which was the amount assessed by the jury.

There are but two assignments of error.

The first complains of argument by counsel for plaintiff.

The record shows no objection or exception taken to the argument. We doubt if the argument is justly subject to objection. Conceding it to be so, nevertheless it was of such nature as to require-objection to be made thereto at the time and failure so to do waived the error, if any, in such argument under the rule announced by Justice Critz, in Robbins v. Wynn (Tex.Com.App.) 44 S.W.(2d) 946.

The other assignment complains of the attorney’s fee as being excessive. This is sustained. See Texas P. Ins. Co. v. Beach, 98 S.W.(2d) 1057, and American N. Ins. Co. v. Mays, 97 S.W.(2d) 975, both recently decided by this court.

The judgment will be affirmed conditional upon the filing of a remittitur of $100 upon the amount allowed as attorney’s fees; such remittitur to be filed in twenty days. If the same be not so filed, the judgment is ordered reversed, and the cause remanded.

Conditionally affirmed.