47 S.W.2d 678 | Tex. App. | 1932
In this case First Bank of Truscott as plaintiff below, suing in its name as an unincorporated banking association, recovered Judgment against the Kansas Life Insurance Company, defendant below, for the sum of $2,500, with interest and attorney's fees, upon an insurance policy issued by the defendant to Walter J. Burgess and insuring the life of the latter in favor of his estate as beneficiary. The plaintiff claimed as assignee of the policy, the transfer from the insured having been made to secure certain indebtedness. In addition to a general denial the defendant pleaded a special defense, alleging fraud and collusion on the part of plaintiff and its own agent, who was vice president of plaintiff, together with the insured and medical examiner, which plea was stricken out upon the court's sustaining a general demurrer to the answer and special exception (so styled) to the special plea.
The case is a companion case to cause No. 953 (Tex.Civ.App.)
But, as in the other case, the policy in evidence and upon which recovery was awarded did contain the one-year incontestability clause and it was not shown that any contest or liability under the policy was made within one year from the date of the policy, the error of the court in sustaining the exceptions and striking out the special plea was harmless. Our opinion in the other case is referred to for a fuller discussion of the same questions presented in this case, and for the reasons therein stated it is our opinion that the judgment herein should be affirmed, which is accordingly so ordered.