Bankers' Health & Accident Co. of America v. Whitehead

• Decision Date: 11 January 1928
• Docket Number: (No. 7189.)
• Citation: 2 S.W.2d 513
• Parties: BANKERS' HEALTH & ACCIDENT CO. OF AMERICA v. WHITEHEAD.
• Court: Texas Court of Appeals

2 S.W.2d 513

BANKERS' HEALTH & ACCIDENT CO. OF AMERICA v. WHITEHEAD.

(No. 7189.)

Court of Civil Appeals of Texas. Austin.

January 11, 1928.

Appeal from Coleman County Court; C. L. South, Judge.

Action by Dr. J. B. Whitehead against the Bankers' Health & Accident Company of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

J. B. Dibrell, Jr., of Coleman, for appellant.

H. L. Livingston, of Coleman, for appellee.

BLAIR, J.

Appellee sued appellant on a sick benefit or health policy contract on a claim for $201. Appellant filed a plea of privilege to remove the suit to Harris county, its place of domicile. The trial court overruled the plea, notwithstanding no controverting affidavit was filed by appellee. Subject to the plea of privilege appellant answered formally and by pleas setting up special defenses. The case was tried to the court without a jury and resulted in a judgment in favor of appellee for $176, from which judgment this appeal is perfected.

The judgment must be reversed because of the action of the trial court on the plea of privilege. The statute, providing for pleas of privilege and procedure thereunder, makes the filing of such a plea "prima facie proof of the defendant's right to change of venue," and, unless plaintiff shall controvert the plea within the time prescribed and under oath, the court is without further jurisdiction on the venue question, except to hear the plea, and, if found sufficient, is required by the statute to transfer the case. Article 2007, R. S. 1925; Texas Life Ins. Co. v. Black (Tex. Civ. App.) 237 S. W. 622; Wallace v. Adams (Tex. Civ. App.) 243 S. W. 572; Bennett v. Rose Mfg. Co. (Tex. Civ. App.) 226 S. W. 143; Phenix v. Davis, 265 S. W. 718; Russell Grader Mfg. Co. v. McMillin (Tex. Civ. App.) 271 S. W. 124; Comer v. Landrum (Tex. Civ. App.) 277 S. W. 743; Ryan v. Johnson (Tex. Civ. App.) 284 S. W. 652; Sibley v. Continental Supply Co. (Tex. Sup.) 292 S. W. 155, denying writ of error in (Tex. Civ. App.) 290 S. W. 769; Citizens' State Bank v. Alexander (Tex. Civ. App.) 274 S. W. 184.

The judgment will be reversed, and the cause remanded, with instructions to the trial court to transfer same in accordance with the plea of privilege filed.

Reversed and remanded, with instructions.