
    AMERICAN INS. UNION v. ALLEN.
    (No. 1710. )
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 11, 1917.)
    1. Insurance <&wkey;813-Assignment by Beneficiary — Rights of Assignee.
    Where the beneficiary named in a policy of fraternal benefit insurance assigned in writing all his rights under the policy, such an assignment vested the assignee with both the legal and equitable title to the policy, and the as-signee alone could sue upon it.
    [Ed. Note. — For. other cases, see Insurance, Cent. Dig. 1994.]
    2. Insurance <&wkey;815(l) — Action on Policy —Petition—Sufficiency.
    Where the "Beneficiary named in a policy of fraternal benefit insurance after assigning the policy in writing brought suit against the insurer for the use and benefit of the assignee without alleging in the petition that the assignee was under legal disability which prevented her suing in her own name, or that she had authorized the suit to be instituted, as the judgment could be interposed as a bar to a subsequent suit by the assignee only by proof aliunde the record that the assignee had authorized the suit, or had accepted the benefits of the judgment in some way that would estop her from maintaining a second suit, the petition showed no right in the plaintiff to bring or maintain the suit, and the court should have sustained a demurrer, since the defendant, when sued, has the right to insist that the record as to parties shall be in such condition that the judgment rendered against him will bar a subsequent recovery upon the same cause of action.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1996.]
    3. Pleading &wkey;>416 — Waiver of Error in Ruling on Demurrer.
    In a suit by the beneficiary named in a policy of fraternal benefit insurance brought for the use of and benefit of his assignee, where defendant demurred to the petition on the ground that it did not show a right in plaintiff to bring the action, and after his demurrer was overruled admitted the cause of action to acquire the right to open and close as provided by rule No. 31 (142 S. W. xx), he did not thereby waive his right to complain of the ruling on the demurrer.
    [Ed. Note.- — For other cases, see Pleading, Cent. Dig. §§ 1397-1400.]'
    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 appel-lee, 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, á 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; Winn v. Ft. W. & R. G. Ry. Co., 12 Tex. Civ. App. 198, 33 S. W. 593.

It is contended by the appellee that the suit is for the use and benefit of the assignee, Mrs. Dowdy, and that the latter is the real party plaintiff. If such is the legal construction that should be placed upon the petition, some of the doubts as to its sufficiency might be removed. The defendant when sued has the right to insist that the record as to parties shall be in such condition that the judgment rendered against him will bar a subsequent recovery upon the same cause of action. East Texas Ins. Co. v. Coffee, supra. In this case it is not alleged that Mrs. Dowdy was under any legal disability which prevented her from suing in her own name; neither is there any averment that she has authorized this- suit to be instituted. If the judgment rendered is permitted to stand, there is nothing in the record which would interfere with her right to institute and prosecute a second suit upon the same policy. In such an event this judgment could he interposed as a bar only by proof aliunde the record that Mrs. Dowdy, the assignee, had authorized the suit, or had accepted the benefits of the judgment in some way that would estop her from maintaining a second suit. In short, she could be defeated, not by the judgment itself, but by some matter in estoppel dependent upon the existence of extraneous facts. The law will not expose a defendant to such hazards, especially when there is no necessity for doing so. The court should have sustained the demurrer and dismissed the case.

It is urged, however, that the appellant, having filed an admission of the plaintiff’s cause of action in compliance with rule 31 (142 S. W. xx) in order to get the privilege of opening and closing the argument, in effect waived the defect in the petition. Such admissions do not waive the issues of law presented in demurrers. Johnson v. Clements, 23 Tex. Civ. App. 112, 54 S. W. 272.

The judgment of the trial court is therefore reversed, and the cause dismissed, without prejuuice to the right of Mrs. Dowdy to institute proper legal proceedings in her own name on the policy involved in this suit. 
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