Great Southwest Life Ins. Co. v. Camp, 17179

• Citation: 464 S.W.2d 702
• Decision Date: 26 February 1971
• Docket Number: No. 17179,17179
• Parties: GREAT SOUTHWEST LIFE INSURANCE COMPANY, Appellant, v. Joe CAMP, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 702

464 S.W.2d 702

GREAT SOUTHWEST LIFE INSURANCE COMPANY, Appellant, v. Joe CAMP, Appellee.

No. 17179.

Court of Civil Appeals of Texas,

Fort Worth.

Feb. 26, 1971.

Rehearing Denied March 26, 1971.

Lyne, Klein & French, and Erich F. Klein, Jr., Dallas, for appellant.

Downman, Jones & Schechter, and Arthur L. Schechter, Houston, for appellee.

OPINION

BREWSTER, Justice.

This is an appeal from an order overruling the defendant insurance company's plea of privilege that sought to have the case transferred from Tarrant to Dallas County. The company alleged that it was a resident of Dallas County.

The petition reveals that plaintiff brought this suit to recover from defendant on a policy of insurance alleged to have been issued by defendant to plaintiff and which policy was alleged to provide that in the event plaintiff sustained incapacity to perform his labors as a working man the defendant would pay him benefits of $200 .00 per month for the rest of his life, such benefits to commence at the time plaintiff became totally disabled. It was alleged that by reason of injury plaintiff has become totally disabled and that under the terms of the policy defendant owes plaintiff $200.00 a month from the time of such injury and disability. The suit was to recover such benefits.

After defendant filed its plea of privilege, the plaintiff filed a controverting plea which, with its caption omitted and the signature and jurat omitted, is here copied verbatim as follows:

'Plaintiff denies and/or avers to be untrue and false, the following allegation of defendant contained in such plea of privilege:

"No exception to exclusive venue in the county of one's residence, provided by law, exists in said cause.'

Plaintiff would show that in truth and in fact Subdivision 28 of Article 1995, Civil Statutes of Texas, specifically provides that 'suits on policies may be brought against any life insurance company, or accident insurance company or life and accident or health and accident or life, health and accident insurance company--in the county where loss has occurred or where the policy holder or beneficiary instituting such suit resides'.

'There is no question but that plaintiff herein, the policy holder, resides in Tarrant County, where this suit is filed and as this is a suit on a life, health and accident insurance policy, this Honorable Court has specific jurisdiction as provided in Subdivision 28 of Article 1995, supra.

'WHEREFORE, plaintiff prays * * *.'

After the venue hearing the trial judge overruled defendant's plea of privilege.

Plaintiff's contention was that he was entitled to maintain venue of this case in the county of suit under Subd. 28 of Art. 1995, V.A.T.S., which provides: '* * * Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides.'

The general rule is that when defendant files a plea of privilege, the burden is placed on the plaintiff to plead and to prove that the case comes within one of the exceptions to the general venue statute . Article 1995, V.A.T.S., Collins v. F.M. Equipment Company, 162 Tex. 423, 347 S.W.2d 575 (Tex.Sup., 1961).

The essential venue facts that must have been pleaded and proved by plaintiff to keep venue in the trial court under Subd. 28 of Art. 1995, V.A.T.S., are set out in the opinion in National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (Tex.Com.App., 1943) at page 1024 as follows: 'Venue facts are what must be proved to make applicable some exception to Art. 1995. They are defined and can be found only in the subdivision of that article which declares the exception. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. By reference to applicable provisions of subdivision 28, as we have quoted them, it is clear that the venue facts Thomason was bound to establish in the hearing on the plea of privilege are: (1) that he was a policyholder; (2) that he resided in McLennan County; (3) that relator was a life insurance company; and (4) that he was suing on an insurance policy. If they were not proved, the suit must be transferred to the county named in the plea of privilege.'

That case held that element (4), the character of the suit, would be disclosed by and determined from the petition itself.

The defendant's first four points contend that the plaintiff's venue pleading (the controverting plea) was so deficient that venue cannot properly be kept in Tarrant County because of such defects, and that the case should be reversed because of such defective pleading.

There is no question but what the controverting plea was defective in that it failed to allege all the essential venue facts applicable under Subd. 28, Art. 1995, V.A.T.S., as referred to above.

It has become almost standard practice in Texas for attorneys to adopt the allegations of the plaintiff's petition as a part of the controverting plea and to allege therein that the facts set out in such petition are true and correct. Many books suggest this practice. It does many times result in supplying in such controverting plea essential allegations that might otherwise be overlooked and omitted. For some reason plaintiff did not see fit to follow this practice in the instant case, as his plea did not adopt as a part thereof the plaintiff's petition. See on this McDonald's Texas Civil Practice, Vol. 1, 1965, Sec. 4.49.

However, we need not devote much space here to a discussion of the pleading feature of the case. The defendant did not prior to rendition of judgment in this case take any special exception whatever to the plaintiff's controverting plea. We are convinced that the plaintiff's controverting plea, even though it is quite defective, is sufficient under the record made in this case, and that we cannot reverse this case because of such defects.

Rule 90, Texas Rules of Civil...