197 S.W. 237 (Tex.Civ.App. 1917), 1816, International Travelers' Ass'n v. Votaw

Docket Nº:1816.
Citation:197 S.W. 237
Opinion Judge:WILLSON, C.J. (after stating the facts as above).
Party Name:INTERNATIONAL TRAVELERS' ASS'N v. VOTAW.
Attorney:Seay & Seay, of Dallas, and T. W. Davidson, of Marshall, for appellant. Sexton and Hobart Key, both of Marshall, for appellee.
Case Date:June 18, 1917
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 237

197 S.W. 237 (Tex.Civ.App. 1917)

INTERNATIONAL TRAVELERS' ASS'N

v.

VOTAW.

No. 1816.

Court of Civil Appeals of Texas, Texarkana.

June 18, 1917

Rehearing Denied July 28, 1917.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by Mrs. Lou Votaw against the International Travelers' Association. Judgment for plaintiff, and defendant appeals. Judgment reformed, and as reformed affirmed.

Page 238

Seay & Seay, of Dallas, and T. W. Davidson, of Marshall, for appellant.

R. A. Sexton and Hobart Key, both of Marshall, for appellee.

WILLSON, C.J. (after stating the facts as above).

In a plea in due form and filed in due order of pleading appellant asserted a privilege it claimed to be sued only in Dallas county where, alone, it transacted business. The claim was based upon the fact that it was a "mutual assessment accident insurance corporation" without capital stock and without lodges, and, upon provisions in its by-laws, in Votaw's application for the certificate, and in the certificate itself, that any suit thereon should be filed in that county. In its first assignment appellant complains of the action of the court in overruling its said plea. The contention is that, because it was a "mutual assessment accident insurance company" within the meaning of article 4798, Vernon's Statutes, it was not subject to the provision in article 4744, authorizing

Page 239

suit on a policy issued by an "accident insurance company" to be prosecuted in the county where the beneficiary named therein resided. A like contention made by appellant on its appeal against Branum, 169 S.W. 389, was overruled by the Court of Civil Appeals for the Third District; that court holding that the provisions specified in the application, by-laws and certificate were void because in contravention of said article 4744. It is insisted that the conclusion of the court in that case was wrong because of the provision in said article 4798, which is a part of chapter 5, tit. 71, that "mutual assessment accident insurance companies" "shall be subject only to the provisions of this chapter." The argument is that article 4744 did not apply because it was not a part of said chapter 5. Contrary to the conclusion reached in the Branum Case, we think the effect of the provision in article 4798 specified was to make article 4744 and other provisions of statutes relating to ordinary accident insurance companies not included in said chapter 5 inapplicable to a "mutual assessment accident insurance company," and that appellant, therefore, had a right to contract as it did that it should be sued only in Dallas county on certificates it issued. American Ins. Co. v. Collins, 149 S.W. 554. But we think it nevertheless does not appear from the record before us that the trial court erred when he overruled the plea. It was filed during a term of the court which began on the first Monday in July, 1916. There is nothing in the record showing that it was called to the...

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