Fireman's Fund Ins. Co. v. McDaniel

• Decision Date: 17 July 1959
• Docket Number: Nos. 6146,6167,6172,s. 6146
• Citation: 327 S.W.2d 358
• Parties: FIREMAN'S FUND INSURANCE COMPANY, Appellant, v. Mabel McDANIEL et al., Appellees. D. L. ROSE, Appellant, v. Mabel McDANIEL et al., Appellees. Wayne DURHAM, Appellant, v. Mabel McDANIEL et al., Appellees.
• Court: Texas Court of Appeals

Page 358

327 S.W.2d 358

FIREMAN'S FUND INSURANCE COMPANY, Appellant, v. Mabel McDANIEL et al., Appellees.

D. L. ROSE, Appellant, v. Mabel McDANIEL et al., Appellees.

Wayne DURHAM, Appellant, v. Mabel McDANIEL et al., Appellees.

Nos. 6146, 6167, 6172.

Court of Civil Appeals of Texas.

July 17, 1959.

On Motion for Rehearing Sept. 9, 1959.

Johnson, Guthrie & Stanfield, Dallas, for Fireman's Fund Ins. Co.

Scarborough, Black & Tarpley, Abilene, for Rose.

Strasburger, Price, Kelton, Miller & Martin, Dallas, for Durham.

McDaniel, Hunt & Fairchild, Center, Johnson, Guthrie & Stanfield, Dallas, for McDaniel et al.

HIGHTOWER, Justice.

This is a venue matter. It concerns the three separate appeals, as above captioned, from three separate orders of the trial court overruling three separate pleas of privilege after separate hearings had on each plea. This opinion is in lieu of our former opinion of June 5, 1959, which has been withdrawn.

On April 9, 1957, Mabel McDaniel and Dean McDaniel of Shackelford County, Texas, Evelyn M. Stevens and husband, B. R. Stevens of Nolan County, Texas, instituted suit in the District Court of Shelby County, Texas, against Fireman's Fund Insurance Company, a foreign corporation doing business under a permit in Texas, and Wayne Durham, an agent of Fireman's Fund Insurance Company. The suit is numbered 16,230 in the trial court and is styled Mabel McDaniel, et al. v. Fireman's Fund Insurance Company, et al. The suit was on a policy of fire insurance issued by the company to D. L. Rose, alleged to cover an oil rig against the hazard of fire. Plaintiffs alleged the rig was totally destroyed by fire near Throckmorton, Throckmorton County, Texas, on March 1, 1957 and that they are entitled to recover the face amount of the policy. They alleged that while the policy was issued in the name of Rose alone, the plaintiffs are and were at all times material to the controversy the heirs and community survivor of one R. D. McDaniel, deceased, alleged to have been a partner of Rose; that the oil rig was partnership property and that under a proper partnership accounting all the proceeds alleged to be due on the policy of fire insurance are due to them alone. Fireman's Fund duly filed its plea of privilege, asking that it be sued in the county of its principal place of business in Texas, which is Dallas County, Texas, and the defendant, Wayne Durham, duly filed his plea of privilege, asking to be sued in the county of his residence which is Taylor County, Texas. Both pleas of privilege were controverted and overruled by the trial court.

D. L. Rose denies the plaintiffs' claim of partnership and that they have any right, title or interest in the proceeds alleged to be due to the policy sued on and claims the entire proceeds of said policy to himself. Therefore, subject to its own plea of privilege, Fireman's Fund Insurance Company asked that D. L. Rose be made a party to the cause which the trial court did after having first overruled the plea of privilege of Fireman's Fund.

Rose then filed his plea of privilege to be sued in the county of his residence, which is Shackelford County, Texas. After this plea was filed the plaintiffs later amended their original petition and made Rose a party defendant also. They sought a partnership accounting, and damages against him, etc., as will be more fully discussed hereinafter. On this same day that the plaintiffs filed their cause of action against Rose they also filed their controverting affidavit to his plea of privilege. Subject to its own plea of privilege, Fireman's Fund next controverted Rose's plea. Both Fireman's Fund and the plaintiffs also filed pleas to the effect that Rose was estopped from asserting his privilege to be sued in Shackelford County by virtue of certain conduct on his part in connection with litigation then pending between himself and the plaintiffs in Shackelford County.

It is interesting to observe that none of the parties were residents of Shelby County at the time the suit was instituted. The principal office and Texas residence of Fireman's Fund was in Dallas County. Its agent, Durham, was a resident of Taylor County. Rose was a resident of Shackelford County. The policy of insurance on which the suit was brought was sold to Rose by Durham in Taylor County. The loss of the rig is alleged to have occurred in Throckmorton County. The McDaniels (plaintiffs) lived respectively in Shackelford and Nolan Counties.

Before taking up Fireman's Fund's points of error, we first dispose of the McDaniels' counterpoint that Fireman's Fund waived its plea of privilege. They say:

'Plaintiffs' original petition was filed in the trial court on April 9, 1957. On April 27, 1957, appellant filed its plea of privilege and its original answer making a new party [Rose] subject to the plea of privilege. On May 2, 1957, appellees duly controverted said plea of privilege and on May 25, 1957, upon full hearing, the court overruled said plea of privilege as shown by said order overruling said plea. The appellant in open court duly excepted to the overruling of the plea, but did not at that time give notice of appeal. After the plea of privilege was overruled on May 25, 1957, appellant sought and was granted leave to make D. L. Rose a party to this suit and * * * citation was issued to D. R. Rose making him a party as prayed for in appellant's answer. * * * After the citation was issued and process had been served on D. L. Rose making him a party to this suit, * * * appellant * * * filed its notice of appeal and its appeal bond. It is, therefore, shown that after the plea of privilege was overruled, and before notice of appeal was given or appeal bond was filed, appellant invoked the general jurisdiction of the court by seeking leave to implead the third party, obtaining an order granting such leave and obtaining service of process and impleading the third party. Appellant, therefore, waived its plea of privilege.'

We are acquainted with the alleged rule that venue is waived if a party seeking to remove a case on a plea of privilege asks for and obtains affirmative relief before the plea of privilege is acted on. Whisnant v. Kurtz, Tex.Civ.App., 228 S.W. 977. However that is not the situation in this case. Fireman's Fund duly filed its plea of privilege and subject to such plea of privilege, filed its answer in which it pointed out to the trial court that a third party, Rose, was asserting a claim for the identical proceeds alleged to be due on the fire insurance policy which the McDaniels were seeking. Having done this after its plea was overruled the same was not waived. The error in the counterpoint, which we overrule, is clearly disclosed in Stark v. Super-Cold Southwest Co., Tex.Civ.App., 239 S.W.2d 402, mand. overruled.

Briefly, the crux of Fireman's Fund's points of error is:

'(1) That the evidence failed to establish that the appellant had an agency or representative in Shelby County within the meaning of Sub. 27 of Article 1995, Vernon's Ann.Civ.St. (2) That said Sub. 27 is void. (3) That said Sub. 27 has been amended or repealed.'

In its argument under its first point Fireman's Fund says: 'In order for plaintiffs to have the right to sustain venue in Shelby County, Texas, as against Fireman's Fund Insurance Company's right to be sued in the county of its residence, the burden was on the plaintiffs to prove by a preponderance of the evidence that Fireman's Fund Insurance Company not only had agents or representatives in Shelby County, Texas, at all times material to the lawsuit, but that these agents or representatives were actually transacting the company's business there.' It says such facts were not proved. In support of this contention it cites Presstite Engineering Co. v. Richards, Tex.Civ.App., 243 S.W.2d 230, and cases there cited.

The words 'agency' or 'representative' as used in Sub. 27 has been generally held to refer to one who is subject to control of the corporation, and authorized to act on its behalf in promoting corporate affairs and purposes in the county of suit. The application is to foreign and domestic corporations alike. In construing the words as used in Sub. 23 of Art. 1995, V.A.C.S., the Supreme Court has recently stated: '* * * in our opinion the statute refers to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of 'agency' and the other of 'representative'.' Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, at page 198. There can be no doubt that the same meaning is applicable to Sub. 27. In either case the appellees have met the test.

Plaintiffs' original petition, filed April 9, 1957, alleged appellant to have an agency or representative in Shelby County at that date and at all times material, to suit. These allegations were incorporated in the affidavit controverting the plea of privilege. Subsequently, the appellant replied affirmatively to the following requested admissions: (17) 'Since July 1, 1954, and continuously until the present time, the defendant, Fireman's Fund Insurance Company, has had an agent or representative in Shelby County, Texas.' (18) 'From January 1, 1957, through May 6, 1957, the defendant, Fireman's Fund Insurance Company, has been doing business within Shelby County, Texas.' (19) 'The defendant, Fireman's Fund Insurance Company, has been entering into contracts of fire insurance with various residents of Shelby County, Texas, in Shelby County, Texas, for more than three years in the regular course of its business.' (20) 'At all times material to this suit, defendant, Fireman's Fund Insurance Company, had had an agency or representative in Shelby County, Texas.' Other admissions were that of two of appellant's agents residing in Shelby County at all times...