American Indemnity Co. v. City of Austin

• Citation: 211 S.W. 812
• Decision Date: 16 April 1919
• Docket Number: (No. 6202.)
• Parties: AMERICAN INDEMNITY CO. v. CITY OF AUSTIN.
• Court: Court of Appeals of Texas

211 S.W. 812

AMERICAN INDEMNITY CO. v. CITY OF AUSTIN.

(No. 6202.)

Court of Civil Appeals of Texas. San Antonio.

April 16, 1919.

Rehearing Denied May 14, 1919.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by the City of Austin against the American Indemnity Company. From judgment for plaintiff, defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, for appellant.

J. Bouldin Rector, J. W. Maxwell, and Lightfoot, Brady & Robertson, all of Austin, for appellee.

COBBS, J.

Appellee filed this suit to recover taxes for the years 1914, 1915, and 1916, alleged to be due to it as a municipal corporation upon certain securities (bonds, bank certificates of deposit, and promissory notes secured by mortgage liens on land) deposited by appellant with the treasurer of the state of Texas in accordance with the provisions of article 4942e of Vernon's Sayles' Texas Civil Statutes. Trial before the court without a jury resulted in judgment in favor of appellee for sums aggregating $9,842.33 as the principal, interest, and costs on the taxes found to be due for the several years mentioned, being $1,610.37 for 1914, $3,649.40 for 1915, and $4,582.56 for 1916. The judgment provided for foreclosure of appellee's tax lien upon the securities found by the court to have been deposited with the state treasurer on the 1st day of January of each of the years mentioned. The case was tried on an agreed statement of facts, which was adopted by the court below as his findings of fact. The court, at the request of appellant, duly filed his findings of fact and conclusions of law, which were excepted to by appellant.

The findings of fact of the trial court are substantially as follows:

It is agreed and admitted that the allegations in paragraphs A, I, and II of plaintiff's original petition are true, to the effect that the city of Austin is a municipal corporation, duly and legally incorporated by special act of the Legislature of the state of Texas, having its domicile in Travis county, and the defendant a corporation incorporated, organized, and licensed under the laws of Texas for the purpose of doing a title, fidelity, surety, and indemnity insurance business in Texas, whose main office and principal business is located in the city of Galveston, county of Galveston, state of Texas, of which Sealy Hutchings is president.

Under and by virtue of its charter of incorporation, plaintiff and its city council have, and continuously since its incorporation have had, the lawful power and authority to levy and collect annual taxes, not exceeding for all purposes, including an annual tax for current expenses, general improvement of the city and its property, and to pay the interest and 2 per cent. sinking fund annually on all bonded indebtedness of the city, and for the maintenance of the public schools 2½ per cent. of property values on all property within the limits of the city, on the 1st day of January of each year, taxable by law for state and county purposes.

For the years 1914, 1915, and 1916 the taxes were regularly levied by the city council on the property therein situated for all purposes that it was authorized by law to make such levies.

The allegations of the above-mentioned paragraphs, the substance of which is herein stated, were agreed to and admitted to be true, except as to the purpose for which defendant was incorporated, as to which a copy of the body of its charter was made a part of the agreement.

It is further agreed that defendant's home office has been continuously since its incorporation on April 19, 1913, and still is, in the city of Galveston, county of Galveston, and state of Texas.

The charter is as follows:

"State of Texas, County of Galveston.

"Know all men by these presents that we, Louis A. Adoue, Jules Block, R. P. Clark, George Sealy, Ben Dolson, Jr., H. Guldman, J. W. Hoopes, Sealy Hutchings, D. W. Kempner, F. M. Lege, Otto Letzerich, Wm. L. Moody, III, C. H. Moore, W. A. McVitie, Fred C. Pabst, John Sealy, L. A. Stein, S. Sgitcovich, H. O. Stein, and H. L. Zeigler, all resident citizens of Galveston county, Texas, being desirous of forming a corporation for the transaction of insurance business, as hereinafter set out, do hereby voluntarily associate ourselves together for the purpose of creating and corporating an insurance company under and by virtue of the laws of the state of Texas, and particularly under and by virtue of chapter 117 of the General Laws of the State of Texas passed by the Thirty-Second Legislature at its regular session, and we do hereby adopt and subscribe articles of incorporation as follows:

"(1) The name of this corporation shall be American Indemnity Company.

"(2) The principal office of this corporation will be established and located in the city and county of Galveston, Texas.

"(3) The amount of capital stock of this corporation shall be three hundred thousand dollars ($300,000.00), divided into three thousand (3,000) shares, of one hundred dollars ($100.00) each.

"(4) This corporation shall exist for a term of one hundred years.

"(5) The object and purposes for which this corporation is organized are as follows:

"(a) To insure any person against bodily injury, disablement of death resulting from accident, and against disablement resulting from disease.

"(b) To insure against loss or damage resulting from accident to or injury sustained by an employé or other person for which accident or injury the assured is liable.

"(c) To insure against loss or damage by burglary, theft, or housebreaking.

"(d) To insure glass against breakage.

"(e) To insure against loss from injury or property which results accidentally from steam boilers, elevators, electrical devices, engines, and all machinery and appliances used in connection therewith, or operated thereby; and to boilers, elevators, electrical devices, engines, machinery, and appliances.

"(f) To insure against loss or damages by water to any goods or premises arising from the breakage or leakage of sprinklers and water pipes.

"(g) To insure against loss resulting from accidental damage to automobiles or caused accidentally by automobiles.

"(h) To insure against loss or damage resulting from accident to or injury suffered by any person for which loss and damage the insured is liable, except employers' liability insurance as authorized under subdivision (b) hereof.

"(i) To insure persons, associations, or corporations against loss or damage by reason of giving or extending of credit.

"(j) To insure against loss or damage on account of circumstances upon or defects in the title to real estate, and against loss by reason of the nonpayment of the principal or interest of bonds, mortgages, or other evidences of indebtedness.

"(k) To insure against the following specified casualty or insurance risks, all of which may be lawfully made the subject of insurance, and the formation of a corporation for issuing against which is not otherwise provided for by said chapter 117, to wit: To act as surety and guarantor of the fidelity of employés, trustees, executors, administrators, guardians, or other appointed to, or assuming the performance of, any trust, public or private, under appointment by any court or tribunal, or under contract between private individuals or corporations; also on any bond or bonds that may be required to be filed in any judicial proceeding; also to guarantee any contract or undertaking between individuals, or between private corporations, or between individuals or private corporations and any state, the United States, municipal corporations or counties, or between private corporations and individuals; to transact all kinds of fidelity, surety, and liability insurance business.

"In testimony whereof we have hereunto subscribed our names this 10th day of April, 1913."

II. It is agreed and admitted that the allegations in paragraph III of plaintiff's original petition are true, except that defendant does not admit that the bonds, notes, and other securities mentioned in said paragraph were deposited with the state treasurer in furtherance of its business ends or purposes, or that defendant advertised the fact of deposit of such securities, or printed a copy of the treasurer's receipt on the policies issued by it. It is further agreed and admitted that said deposits were made under the provisions of articles 4942e and 4930, Vernon's Sayles' Revised Statutes.

III. It is agreed and admitted that on the 1st day of January, 1914, defendant had on deposit with the treasurer of the state of Texas, and in the state treasury in the city of Austin, securities of the reasonable cash value of $100,000.00, consisting of—

                Galveston Sea Wall Bonds Nos
                 101-118 ......................... $ 9,000 00
                Galveston Sewerage Bonds .........  41,000 00
                Galveston Sea Wall and Breakwater
                  Bonds ..........................  50,000 00
                

—the same having been deposited under articles 4942e and 4930 of Vernon's Sayles' Revised Statutes, and that said bonds were interest bearing, and that a portion of the assets of defendant was invested in them.

IV. It is agreed and admitted that on the 1st days of January of each of the years 1915 and 1916 defendant owned and had on deposit with the treasurer of the state of Texas, and in the state treasury in the city of Austin, the securities consisting of bonds and promissory notes described in paragraph V and VI of plaintiff's petition, the same having been deposited under the articles of the statutes mentioned in the preceding paragraph, except that the additional deposits in excess of the first $100,000.00 were made under said articles, and under the provisions of article 4942e, in order to allow defendant to write all the kinds of business authorized by its charter in the state of Michigan. It is further admitted and agreed that at the times mentioned said bonds and notes were of the reasonable cash value alleged in said paragraphs V and VI of said...