Great Nat. Life Ins. Co. v. Chapa

• Decision Date: 01 April 1964
• Docket Number: No. A-9953,A-9953
• Citation: 377 S.W.2d 632
• Parties: GREAT NATIONAL LIFE INSURANCE CO., Petitioner, v. Jesus G. CHAPA, Respondent.
• Court: Texas Supreme Court

Page 632

377 S.W.2d 632

GREAT NATIONAL LIFE INSURANCE CO., Petitioner, v. Jesus G. CHAPA, Respondent.

No. A-9953.

Supreme Court of Texas.

April 1, 1964.

Rehearing Denied April 29, 1964.

Jones, Boyd, Westbrook & Lovelace, Waco, for petitioner.

Richey, Sheehy, Teeling & Cureton, Sam Lanham, with above firm, Waco, Utter & Chase, Corpus Christi, for respondent.

CULVER, Justice.

The trial court overruled the plea of privilege of Great National Life Insurance Company to be sued in Dallas County. The Court of Civil Appeals affirmed by a divided court, Tex.Civ.App., 373 S.W.2d 280, on the ground, as stated by that court, that the venue in a civil suit for conspiracy may be laid in any county in which an act in pursuance of the common design was performed by any one of the conspirators. We hold that the plea of privilege should be sustained.

The cause of action arose out of a collision with an automobile driven and owned by one of the defendants, Castillo, in which the plaintiff, Chapa, received injuries to his person. The suit was brought in McLennan County where the accident occurred, against Castillo and Great National Life Insurance Company. Castillo was acting as an agent of the Insurance Company and at the time of the collision was en route to an appointment with a prospect in an effort to sell a policy of insurance.

It is conceded that the Insurance Company would not be liable in this case for the negligence of Castillo if he had, at the time of the accident, been issued a license as an insurance agent by the Insurance Commissioner. ¹ But the plaintiff's suit is predicated on the claim that Castillo and the Company had entered into an unlawful agreement and conspiracy to accomplish a lawful purpose, namely, that of selling insurance by unlawful means and that at the time of the accident Castillo was 'acting in pursuance of a common design in furtherance of the conspiracy.' The claimed 'unlawful means' consisted in the fact that Castillo was engaged in selling insurance without a license in violation of law.

On March 23, 1961, Castillo and the Company entered into a contract whereby Castillo was employed to solicit and sell insurance for the Company as its agent. There was nothing unlawful in this contract. On March 31st the Company mailed to the Insurance Commissioner an application for a license on behalf of Castillo. Article 21.07-1, § 3 of the Insurance Code, V.A.T.S. provides that no person shall act as a life insurance agent within this state until he shall have procured a license as required by law. Section 10 of that article provides that the Commissioner may issue a temporary license effective for 90 days and if the temporary license has not been received from the Commissioner within seven days from the date the application was forwarded it may be assumed that the temporary license will be issued and the applicant may proceed to act as agent. Accordingly Castillo would not have qualified until one week after the accident.

The only case relied upon either by the plaintiff-respondent or the Court of Civil Appeals is that of Berry v. Golden Light Coffee Co., 160 Tex. 128, 327 S.W.2d 436. In that case the contract entered into between the parties was for the deliberate purpose of circumventing the statute by making it appear that vehicles, actually owned by another and operated by him, were the property of Golden Light and driven by its employees in the transportation on state highways of commodities belonging to Golden Light, thus falsely representing that they were exempt from the provisions of Art. 911b, §§ 13 and 13a, Vernon's Ann.Civ.St. Under this plan of operation one of the trucks so used was in a collision which resulted in the death of the driver of the other vehicle. The essence of the holding in that case is stated as follows:

'* * * It visits no injustice upon a party seeking to circumvent the Act, to hold him to the responsibility attendant upon his assumed or purported legal position. For the purpose of securing the transportation of its coffee from Houston to Amarillo, Golden Light in effect represented that it was transporting its own goods, wares and merchandise. After a collision and injury has resulted because of such transportation activities, no reason is apparent for not taking the company at its word and settling upon it the liabilities of its assumed position.'

That case does not support the plaintiff's position. Of course Golden Light would have been liable for the negligence of its driver while acting in the scope of his employment and it could not escape that liability when it fraudulently represents that its goods are being transported in its own truck and operated by its own employee in order to circumvent the law and to reduce its operating expense. The purpose of the conspiracy was to operate vehicles upon the highway under false colors.

The legislative intent in the adoption of the Texas Motor Carrier Act ² was in large part to minimize the dangers and hazards on public highways, the congestion of traffic...