On Motion for Rehearing. The appellee insists that the majority of the court is in error in holding the appellant's petition sufficient as against a general demurrer. In writing the original opinion we assumed that all parties would agree that every reasonable presumption in favor of the sufficiency of the pleading should be indulged. Therefore no discussion of that proposition was had. This court, in Roberts v. Anthony, 185 S.W. 423, speaking through Judge Hall, held that "every reasonable intendment must be presumed in favor of the sufficiency" of the pleadings as against a general demurrer. That is the holding of an unbroken line of decisions. In the dissenting opinion it is stated:
"I am unable to find the word reinsurance, or any synonym of it, in the pleading." The common acceptation of the term "reinsurance" is to assume the obligation imposed by a policy of insurance. The pleader alleged that the California Company assumed the obligation imposed by all policies of insurance issued by the Amarillo Company. This court has held that the presumption of legality must be indulged. Jackson v. Greenville Compress Co., 202 S.W. 324. Appellant alleged that the commissioner of insurance and banking had approved the contract. There was no occasion to present the contract to the commissioner for approval, except it be a contract for the reinsurance of all of the business of the Amarillo Company. The only legal way the insurance business of the Amarillo Company could be taken over by the California Company was by a reinsurance contract. The conclusion, it seems, naturally follows that the contract alleged was one for the reinsurance of the business of the Amarillo Company. At least, it is not an unreasonable inference. In any event, the rights of litigants ought not to be made depend upon the happy or precise use of words either in the expression or suppression of facts.
Counsel for appellee contend that it was the duty of the appellant to plead any special circumstances which relieved the transaction of illegality, and that it is not proper for the court to conjecture that such circumstances exist. The court does not undertake such task. Appellee urged a general demurrer. The transaction must be presumed-legal unless the contrary conclusively appears. Every reasonable intendment in favor of the sufficiency of the petition must be indulged. A reinsurance contract would have been legal. It does not conclusively appear that the transaction alleged was not a reinsurance contract. It necessarily follows that this court should indulge the presumption of the legality of the transaction and the sufficiency of the pleading, rather than to conjecture that the "appellant had made the best statement of its cause of action that it could make, and that there were no special circumstances which it could truthfully plead that would relieve the transaction and contract between appellant and the Amarillo National Life Insurance Company of its apparent illegality."
The Supreme Court of this state has held that a county commissioner's court and, a broker contracting with it are presumed to know the law and intended to obey it. Foard County v. Sandifer, 151 S.W. 523. It has also been held that the sale of *Page 380 property of a public service corporation was made under the statutes authorizing such sale unless the contrary affirmatively appears. Gulf, etc., Co. v. Lasater, 193 S.W. 773. It does not therefore seem an unreasonable stretch of the rule to hold that the commissioner of insurance and banking did not act in a matter in which he was not authorized to act or that, in acting, he obeyed the law.
In the opinion of the writer the motion is without merit and is in all things overruled.