American Ins. Union v. Allen

• Decision Date: 11 January 1917
• Docket Number: (No. 1710.)
• Citation: 192 S.W. 1087
• Parties: AMERICAN INS. UNION v. ALLEN.
• Court: Texas Court of Appeals

Page 1087

192 S.W. 1087

AMERICAN INS. UNION v. ALLEN.

(No. 1710.)

Court of Civil Appeals of Texas. Texarkana.

January 11, 1917.

Appeal from Bowie County Court; Lee Tidwell, Judge.

Suit by B. F. Allen against the American Insurance Union. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Sam H. Smelser, of Texarkana, for appellant. Wheeler & Wheeler, of Texarkana, for appellee.

HODGES, J.

The appellant is a fraternal benefit society, and this suit is to recover upon an insurance policy issued upon the life of Mrs. Evolyn L. Allen in which the appellee, B. F. Allen, was named as beneficiary. The petition begins as follows:

"Now comes Ben F. Allen for the use and benefit of Mrs. O. A. Dowdy, who resides in Dallas county, Tex., hereinafter called plaintiff, complaining of the Union American Insurance Company, a corporation organized and doing business under the laws of the state of Ohio," etc.

The petition then proceeds with the usual averments, alleging the issuance of the policy upon the life of Mrs. Allen in which plaintiff was named as the beneficiary, and alleges the death of Mrs. Allen, the amount for which the policy was issued, the presentation of proofs of death, and the failure of the appellant to pay the amount due. It then proceeds as follows:

"Plaintiff shows to the court that he has by an instrument in writing duly assigned, transferred, and sold his interest in said policy of insurance to Mrs. O. A. Dowdy, of Dallas county, Tex., and this suit is brought for her use and benefit."

The petition concludes with a prayer for judgment in favor of the plaintiff for the sum of $33.33, with interest, damages, and attorney's fees.

Appellant excepted to the petition, upon the ground that it showed no right in the appellee to bring or maintain this suit. In addition to this the appellant also pleaded false statements made by the insured in her application in answer to questions by the examining physician concerning her previous health. The court overruled the demurrer and submitted the case upon special issues, and upon the answers judgment was entered in favor of the appellee for the amount sued for. At the conclusion of the evidence the appellant requested a peremptory instruction in its favor. This was refused and duly excepted to.

The first question presented on this appeal is: Did the petition disclose a cause of action for which the appellee, B. F. Allen, could sue? The petition shows upon its face that the policy and all rights in it had been assigned by the appellee, Allen, to Mrs. Dowdy. Such an assignment invested Mrs. Dowdy with both the legal and equitable title to the policy, and she alone could sue upon it. East Texas Ins. Co. v. Coffee, 61 Tex. 287; Cleveland v. Heidenheimer, 92 Tex. 111, 46 S. W. 30; ...