American Nat. Ins. Co. v. Ellington

LOONEY, Justice. Suit on a life policy — major defense based on the alleged violation of the condition that insurer would not be liable if the insured whs not in sound health on the date of the policy; and further that, in view of the statute directing that attorney’s fee allowed shall be taxed as costs, the judgment is erroneous in allowing interest on the gmount of the attorney’s fee assessed. On proper submission, the jury found on conflicting evidence that the insured was in sound health on the date of the policy; in this situation we are not authorized to disturb that finding. The attorney’s fee assessed, being in no real sense court costs, but rather costs of collection, was a part of the amount in controversy; hence interest was properly allowed thereon from the date of the judgment. See Johnson v. Universal Life, etc., Co. (Tex.Com.App.) 94 S.W.(2d) 1145. No reversible error appearing, all assignments are overruled and the judgment is affirmed. Affirmed.