Edmondson v. Underwriters Life Ins. Co., 13040.

• Decision Date: 06 June 1941
• Docket Number: No. 13040.,13040.
• Parties: EDMONDSON v. UNDERWRITERS LIFE INS. CO.
• Court: Texas Court of Appeals

Page 236

153 S.W.2d 236

EDMONDSON v. UNDERWRITERS LIFE INS. CO.

No. 13040.

Court of Civil Appeals of Texas. Dallas.

June 6, 1941.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action for wrongful cancellation of a life policy by I. H. Edmondson against the Underwriters Life Insurance Company. From a judgment sustaining a plea of privilege, plaintiff appeals.

Reversed and rendered.

Chrestman, Brundidge, Fountain, Elliott & Bateman and J. A. Blakeley, all of Dallas, for appellant.

Richey, Sheehy & Teeling, of Waco, for appellee.

LOONEY, Justice.

Alleging the wrongful cancellation of a life policy issued to him by Texas Standard Life Insurance Company and later assumed by Underwriters Life Ins. Company, the appellee, appellant sought to recover the present value of the policy. Appellee filed a plea of privilege, claiming the right to be sued in McLennan County, which was contested by appellant, but, after hearing evidence, the court overruled the contest, sustained the plea of privilege, and changed the venue of the cause to a court of proper jurisdiction in McLennan County; to which, appellant excepted and perfected this appeal.

The material facts alleged in the controverting plea, and as shown by the agreed statement of facts, substantially are these: Texas Standard Life Insurance Company issued to Irus H. Edmondson, appellant, the policy in question, providing for the payment of a maximum death benefit of $2,500; liability under the policy being later assumed by Underwriters Life Insurance Company, appellee, under a reinsurance agreement with the issuing company. Both of these companies are state-wide mutual assessment companies, without capital stock, chartered under the statutes of this State, and operate under the provisions of Art. 4859f, Vernon's Ann.Civ.St. The policy in question contains, among others, the following provision: "The holder of this policy agrees to pay, within fifteen days after notice thereof, all assessments of $3.00 levied by this Company for death assessment or dues, of which two each year shall be placed in the general fund to be used for operating expenses." While the policy was in full force and effect, appellee herein notified the appellant that, the monthly assessment premium rate of $3 was inadequate and would be increased to $9.33 per month; but no evidence was offered to show whether the increase in rates was reasonable, or necessary to pay losses. It was also agreed that Irus H. Edmondson was a resident of the City of Dallas, Dallas County, Texas.

Under the caption of "First Counter Proposition," appellee urges a cross assignment of error, based upon certain misnomers as to each of the litigants, contending that, by reason thereof, the controverting affidavit filed by the appellant was insufficient to controvert the plea of privilege filed by appellee; therefore, the court did not err in sustaining its plea of privilege. If appellant's contention is correct, this controversy should end without further discussion.

Although the record discloses a misnomer as to each of the litigants, we do not think there exists any doubt as to the true identity of the real parties at interest. The facts, in short, are these: The correct name of the appellant is Irus H. Edmondson, to whom the policy was issued, as shown by the agreed statement, but for some reason not disclosed, the suit was instituted in the name of Thomas H. Edmondson, as plaintiff, against Underwriters Life Insurance Company, as defendant; the docket number being 46,239-B. Citation was issued accordingly, and, in its plea of privilege, appellee used the same style and number. Appellant's controverting plea was in his correct name, that is, I. H. Edmondson, but he changed the original style to that of I. H. Edmondson v. Texas Standard Life Insurance Company, instead of Underwriters Life Ins. Company, the same docket number being used throughout. The order sustaining the plea of privilege used the correct names of the parties, that is, I. H. Edmondson as plaintiff and Underwriters Life Insurance Company, as defendant; and later, I. H. Edmondson perfected the appeal in forma pauperis.

Appellee made no objection in the court below, raising the question for the first time by the cross assignment of error. The record, in our opinion, discloses indisputably that the real parties at interest were before the court as active litigants. Courts view such irregularities with charity, so long as the real parties at interest are the litigants, and this without regard to the name under which the litigation is conducted, even to the extent of holding that extrinsic evidence is admissible to show that a real party at interest was not a party to the record. See Haines v. West, 101 Tex. 226, 230, 105 S.W. 1118; Hartford Fire Ins. Co. v. King, 31 Tex.Civ.App. 636, 73 S.W. 71, 73.

Appellant contends that, as he was a resident of Dallas County, Texas, holder of the policy, for the breach of which he instituted suit for its present value, and each of the insurance companies, that is, the Texas Standard Ins. Company, issuing the policy, and the Underwriters Life Ins. Company, assuming liability thereunder, being a state-wide mutual assessment company without capital stock, incorporated under...