Kansas Life Ins. Co. v. First Bank of Truscott, 953.

• Court: Court of Appeals of Texas
• Citation: 47 S.W.2d 675
• Docket Number: No. 953.,953.
• Parties: KANSAS LIFE INS. CO. v. FIRST BANK OF TRUSCOTT.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 26 February 1932

47 S.W.2d 675

KANSAS LIFE INS. CO. v. FIRST BANK OF TRUSCOTT.^*

No. 953.

Court of Civil Appeals of Texas. Eastland.

February 26, 1932.

Rehearing Denied March 25, 1932.

Appeal from District Court, Knox County; Isaac O. Newton, Judge.

Action by the First Bank of Truscott against the Kansas Life Insurance Company. From judgment for plaintiff on directed verdict after striking defendant's answer except general denial, defendant appeals.

Affirmed.

See also (Tex. Civ. App.) 47 S.W.(2d) 678.

Joiner & Cook, of Plainview, James A. Stephens, of Benjamin, and K. W. Halterman, of Topeka, Kan., for appellant.

D. J. Brookreson, of Benjamin, for appellee.

FUNDERBURK, J.

First Bank of Truscott as assignee of an insurance policy dated July 16, 1929, issued by the Kansas Life Insurance Company to Walter J. Burgess, naming his estate as beneficiary, brought this suit against said insurance company to recover upon the policy. With reference to the plaintiff the petition alleged that "the First Bank of Truscott is an unincorporated banking association composed of T. B. Masterson and Mrs. Ellen Chesser, a widow, and has its place of business at Truscott in Knox County, Texas, where it is engaged in a general banking business." All other references to the plaintiff in the pleading are as if it were a legal entity. The petition alleged the assignment to it of the policy of insurance, with the consent of the insurer to secure certain indebtedness owed by the insured to said bank; that all premiums had been duly paid; and that the insured died on or about the 28th day of July, 1930. Sufficient other facts were alleged to state a cause of action for recovery upon the policy, and there was one allegation as follows: "That among other provisions the said policy contains what is designated therein as `incontestability' clause as follows: `This policy shall be incontestable after one year from date of issue except for the nonpayment of premiums or violation of its terms as to military or naval service in time of war, and except as to provisions and conditions relating to disability benefits and those granting additional insurance, specifically against death by accident, if any.'" The defendant pleaded a general denial and specially facts sufficient to show a fraudulent conspiracy between the plaintiff, defendant's agent, who took and forwarded the application for the insurance, the medical examiner, and the insured, to procure the insurance; it being known that the insured was at the time in such a state of health that he was not a proper insurable risk. The allegations of the plea showed that the plaintiff, acting by and through its vice president, who had procured herself to be appointed as agent for the insurance company, induced the said Walter J. Burgess to make the application, to take the medical examination, and go through with all the procedure resulting in the issuance and delivery of the policy and the assignment of the policy to said bank, all for the purpose of giving security to the bank for the indebtedness of the insured to it; the insured at the time not being an insurable risk. To the answer of the defendant insurance company the plaintiff excepted by: (1) A general exception in terms "to the sufficiency of said original answer." (2) A special exception (so denominated) to all the allegations made in said original answer following the general denial, "for the following reasons: Because the policy herein sued on, as shown by its terms, which said policy is filed herein and made a part of the pleadings herein by reference, and as shown in the pleadings of the plaintiff, contains what is generally termed, and as required by the statutes of Texas, an `incontestable clause' which provides, `This policy shall be incontestable after one year from date of issuance except for the nonpayment of premiums or violation of its terms as to military or naval service in time of war, and except as to provisions and conditions relating to disability benefits and those granting additional insurance, specifically against death by accident, if any.' That the policy herein sued on, as shown by its date, as pleaded by the plaintiff, was issued on the 16th day of July, A. D. 1929, and the defendant did not attempt to contest same on the grounds set forth in said original answer for more than one year after its said issuance and until said original answer was filed herein on the 20th day of May, 1931, and hence such attempted contest thereof comes too late, and of this plaintiff prays judgment of the court."

The court sustained the general demurrer and special exception, and by order struck out the defendant's answer except the general denial, and upon a jury trial, the court having instructed a verdict in favor of the plaintiff, rendered judgment for plaintiff for the principal of the policy in the sum of $2,500, with additional interest and attorney's fees. The defendant has appealed.

Two questions are presented for our determination. First, the right of the plaintiff to bring and maintain the suit in the name and capacity of First Bank of Truscott, an unincorporated banking association, is challenged. Appellant's proposition presenting this point assumes that the plaintiff below was a partnership only and contends that it was error to permit the suit to be prosecuted in the name of the partnership instead of in the names of the individuals composing it, over the exceptions and objections made. The assumption is incorrect. We think that plaintiff did not sue as a partnership. It is immaterial that the members of the association may have been held to a liability as partners. Plainti...