Kennedy v. Texas Employers Ins. Ass'n

On Motion for Rehearing.

YOUNG, Justice.

Appellee urges, among other things in its motion, that upon our sustaining its position of a defect in appellant’s pleading and proof as to tender, this cause should be affirmed, and not remanded to enable plaintiff to correct such matters; asserting the record was otherwise free of error. The majority opinion, above, decided that the trial court erred in granting a peremptory instruction against plaintiff upon the main issue discussed, and it was unanimously our conclusion that a tender back was a condition precedent to a recovery, without which the…