The opinion
On Motion for Rehearing.
Appellee in his motion for rehearing tenders a remittitur of the attorney’s fees for which judgment was rendered; and as thus remitted prays that judgment of the trial court be affirmed.
The record discloses that this case has been tried three times. It has been before us twice on appeal. The physical facts surrounding the accidental injury, the inception of the septicemia, or blood poisoning, which led to the death of the insured, are substantially undisputed. The proof relied upon (the testimony of Herman Bettis) on the former appeal to establish the nature and cause of the injury was excluded. Substantially the same proof was made by another witness on the last trial. The insurance company has never offered a,ny proof as to the injury involved and the consequential blood poisoning and death. Their contentions have been altogether with reference to matters of law as applied to the pleadings, the court’s charge, and the pl-oof made by appellee. Upon reconsideration of the case, we have concluded that, under the undisputed facts, deceased’s injury falls within express terms of the policy, and that appellant company is liable under its policy as a matter of law. Under such circumstances and the remittitur filed, the improper argument 'of counsel and the other matters complained of necessarily become harmless error.
While the remittitur of appellee applies to the attorneys’ fees only, if he is not entitled to those, it follows as a matter of law that he cannot recover the 12 per cent, penalty awarded. Appellee’s motion is therefore granted, and the judgment of the trial court is reformed so as to authorize a recovery by appellee from appellant'of $5,000, the principal sum of the policy, together with 6 per cent, interest thereon from January 1, 1926; but recovery of the statutory penalty and attorney’s fees is set aside. As so reformed, the trial court’s judgment is affirmed. The costs of appeal are taxed against appellee.
Reformed and affirmed.