Anglo Mexicana de Seguros, S.A. v. Elizondo

• Decision Date: 09 June 1966
• Docket Number: No. 195,195
• Citation: 405 S.W.2d 722
• Parties: ANGLO MEXICANA de SEGUROS, S.A., Appellant, v. Diane Kaiser ELIZONDO, Individually and as next friend of Keith Walter and Kent Dennis Elizondo, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 722

405 S.W.2d 722

ANGLO MEXICANA de SEGUROS, S.A., Appellant, v. Diane Kaiser ELIZONDO, Individually and as next friend of Keith Walter and Kent Dennis Elizondo, Appellee.

No. 195.

Court of Civil Appeals of Texas Corpus Christi.

June 9, 1966.

Rehearing Denied Aug. 31, 1966.

Barnes & Elick by Charles Elick, McAllen, for appellant.

Cox & Patterson, McAllen, for appellee.

OPINION

SHARPE, Justice.

This case reaches this court by petition for Writ of Error filed by Anglo Mexicana de Seguros, S.A., defendant below, seeking relief against Diane Kaiser Elizondo, Individually and as next friend for two sons of her deceased husband, plaintiff below, to set aside a default judgment against petitioner. The parties will be referred to as in the lower court.

Plaintiff brought suit upon an automobile insurance policy issued by defendant providing for payment of damages resulting from collision and upset on a 1964 Rambler Classic Automobile while operated within the Republic of Mexico. The petition alleged that her husband Nicandro Elizondo, the named insured, was accidentally killed on January 17, 1965, in an automobile wreck in Madero, Mexico, and the Rambler automobile then being driven by him was a total loss, for which she was entitled to recover $2450.00. Default judgment was rendered in that amount against the defendant.

Plaintiff has filed a written motion to dismiss this cause for want of jurisdiction. Defendant opposes that motion and contends by nine points of error that the default judgment should be reversed. The first five points assert in substance that the trial court did not acquire jurisdiction over defendant and that the judgment is void because process was not served on it in accordance with Article 8.24(d), Insurance Code, V.A.T.S., the applicable statute, and, particularly, that the record does not affirmatively show valid service. Points 6 and 7 assert that there was no pleading or competent evidence to support the award nor to establish appellee's entitlement to recover $2450.00 individually and as next friend, or in either capacity. Points 8 and 9 assert that Article 8.24, Insurance Code, and particularly Section (d) thereof, is unconstitutional.

Plaintiff's motion to dismiss this writ of error proceeding for lack of jurisdiction in this court is overruled. Defendant did not participate in the trial in the lower court which resulted in default judgment against it on June 21, 1965. No attempt was made to take a regular appeal. On September 1, 1965, defendant filed proper petition for writ of error and bond in the trial court and thereafter timely filed the record in this court. Defendant has fully complied with the statutes and rules concerning this writ of error proceeding and we have jurisdiction of it. Articles 2249, 2249a, 2255, Vernon's Ann.Civ.St.; Rules 359--363, Texas Rules of Civil Procedure; McEwen v. Harrison, et al, 162 Tex. 125, 345 S.W.2d 706, 711 (1961), (Mandamus Proceeding); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, wr. ref., n.r.e., Writ of Error proceeding); White Motor Company v. Loden, 373 S.W.2d 863, n.w.h.); Investors Diversified Services, Inc., v. Bruner, 366 S.W.2d 810 (Tex .Civ.App.1963, wr. ref., n.r.e.); Appellate Procedure in Texas, Chapter 5.

Defendant's contention that the record herein does not affirmatively establish that service of process was made on it in accordance with the applicable statute is well taken and must be sustained. Absent such a showing, the trial court was without jurisdiction and the default judgment is void.

Art. 8.24(d), Insurance Code, V.A.T.S., provides two methods for service of legal process upon a Mexican Insurance Carrier of the kind involved here: (1) by serving the agent, which the Carrier is required to designate, (2) alterantively, in the event process cannot be served upon the designated agent, service may be made upon the Chairman of the Board of Insurance Commissioners of Texas. The latter is a different official then the Insurance Commissioner of the State of Texas. The alternative method of service is not actually involved in this case.

Plaintiff alleged that appellee 'was a foreign insurance company, duly authorized to do business in the State of Texas, and upon whom service may be had by serving J. M. Nutt, Commissioner of Insurance of the State of Texas, 1110 San Jacinto, County of Travis, City of Austin, Texas.' The return on the citation states that it was served on 'Anglo Mexicana de Seguros, S.A., by delivering to J. M. Nutt, Insurance Commissioner of State of Texas, as agent for service .' The record further reflects a certificate by the Commissioner of Insurance, dated June 16, 1965, stating that citation and copy of the petition were served on him April 29, 1965, that they were forwarded on the same date to d...