47 S.W.2d 675 | Tex. App. | 1932
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. Plaintiff was alleged to be an unincorporated association and a business association, and as such, in a case like this, it had the right to bring and maintain the suit in the name of the association under the express authority of R.S. 1925, art. 6133. The rule may be stated to be that, under authorization of said statute, an unincorporated association, organized for the purpose of conducting a business, can sue and be sued upon causes of action affecting the entire membership alike in the association name alone. 5 Tex.Jur. p. 147, § 26; Brotherhood v. Cook (Tex.Civ.App.)
The other question presented is assumed by the appellant to be whether or not the one-year incontestable provision was available to prevent the defense of fraud alleged in its special answer. It seems to us that the appellant would have been upon stronger ground merely to have urged that the court erred in sustaining the exceptions. The so-called special exception was what is called a speaking demurrer. A "speaking demurrer" may be defined as one which, in order for it to be good, requires consideration of facts alleged in the demurrer, but not in the pleading to which the demurrer is addressed. Price v. Advance-Rumley, etc., Co. (Tex.Civ.App.)
We have given careful consideration to appellant's contention to the effect that, in a case like this, where its own agent was in fact the agent of plaintiff and was a party to a fraudulent conspiracy, such as was alleged, the incontestability provision cannot be held to cut off such defense. We have concluded that the contention cannot be sustained. The agent merely negotiated the contract. Appellant itself issued the policy, which was in fact delivered. It received the premiums. There was a contract voidable only for the fraud, or according to the contract. We regard it as well settled that the incontestability provision required by law to form a part of all policies such as the one here involved, has the effect, after the expiration of the specified time, to preclude a defense based upon alleged fraud inducing the contract. American National Ins. Co. v. Tabor,
The operation of the incontestability provision is not affected by the fact that the beneficiary participated in the fraud. Southern Union Life Ins. Co. v. White, supra.
In view of these conclusions, we have next to consider if the judgment must be reversed because of the error in sustaining the exceptions and striking out defendant's special plea. The policy in evidence upon which recovery was had did contain the provision that same was to be incontestable after one year from its date. The record therefore *678 affirmatively discloses that the error in striking out the special plea was harmless.
We have given some consideration to the question of whether the appellant may have a cause of action against the appellee for damages for the fraud alleged in said special plea, which could be asserted as a counterclaim or cross-action, and the recovery, if any, offset against the recovery of the appellee. Could such a cause of action be asserted in a case like this against the beneficiary and still full effect be given to the clause of the contract in regard to incontestability? These are interesting questions suggested by this record, but if so the plea in this case was purely and only defensive and not sufficient as the statement of an independent cause of action for damages. We have therefore concluded that the question suggested is not presented for our determination.
Having concluded that the only error disclosed by the record which we are authorized to consider is affirmatively shown to have been harmless, and that therefore the judgment of the court below should be affirmed, it is accordingly so ordered.