Home Ins. Co. v. Dick

• Decision Date: 03 May 1928
• Docket Number: (No. 9157.),(No. 9156.)
• Citation: 8 S.W.2d 354
• Parties: HOME INS. CO. et al. v. DICK. COMPANIA GENERAL ANGLO-MEXICANA DE SEGUROS, S. A., v. SAME.
• Court: Texas Court of Appeals

8 S.W.2d 354

HOME INS. CO. et al. v. DICK COMPANIA GENERAL ANGLO-MEXICANA DE SEGUROS, S. A., v. SAME.

(No. 9156.)

(No. 9157.)

Court of Civil Appeals of Texas. Galveston.

May 3, 1928.

Rehearing Denied May 24, 1928.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by C. J. Dick against the Compania General Anglo-Mexicana de Seguros, S. A., in which garnishment proceedings were instituted against the Home Insurance Company and another, and the Texas & Gulf Steamship Company and another intervened. From judgments for plaintiff and interveners, defendant and garnishees appeal. Affirmed.

Terry, Cavin & Mills, of Galveston, for appellants.

Lockhart, Hughes & Lockhart, Williams, Neethe & Williams, and John L. Darrouzet, all of Galveston, for appellee.

GRAVES, J.

A statement in these causes, which have been submitted and considered as one, acquiesced in by the appellees as being correct, is thus taken in full from the brief for appellants:

"C. J. Dick filed suit in the district court of Galveston county against Compania General Anglo-Mexicana de Seguros, S. A. (which will hereafter be called, for brevity's sake, the Mexican insurance company), to recover $35,000 on a policy of insurance issued by the Mexican insurance company on the tug R. Waverly, alleging that the vessel had caught on fire in Tampico, Mexico, and become a total loss, and that thereby the policy matured for the face thereof. The Mexican insurance company was a corporation incorporated under the laws of Mexico, and had no agent in this state. Appellee Dick sued out ancillary writs of garnishment against the Home Insurance Company and the Franklin Fire Insurance Company, as garnishees of the Mexican insurance company. The Home Insurance Company and the Franklin Fire Insurance Company will hereafter be designated the American insurance companies. The affidavit for garnishment was in statutory form.

"Inasmuch as many of the questions presented in these appeals are common to both the Mexican insurance company and the American insurance companies, this brief will be presented for all of them, with such additional portions as may be applicable to the garnishees alone.

"The Texas & Gulf Steamship Company and Suderman & Young were allowed to intervene in the suits. The American insurance companies, as garnishees, answered, denying any indebtedness to the Mexican insurance company. The plaintiff filed a controverting affidavit, alleging that each of the American insurance companies was indebted to the Mexican insurance company in the sum of $15,000, on the ground that, shortly after the issuance of the policy by the Mexican company, it had reinsured its obligation assumed thereby with each of the American companies to the extent of $15,000, and that hence each of the American insurance companies was indebted to the Mexican insurance company in that amount.

"The garnishees answered the controverting affidavit as follows: That it is not true that, by reason of the contract of reinsurance existing between these garnishees and the defendant herein, there became due and payable from the garnishees to said defendant the sum of $15,000 from each of these garnishees, but that, to the contrary, the liability of these garnishees to said defendant is solely to indemnify it against any loss or judgment that it might have to pay upon said policy of insurance; that it is not true that these garnishees each have in their possession the sum of $15,000 belonging to the defendant Compania General Anglo-Mexicana de Seguros, S. A.

"These garnishees further respectfully show to the court that the only manner in which it is claimed that this court has jurisdiction over the defendant is by these garnishees, and the filing of a certain suit in this court numbered 39643. and entitled C. J. Dick v. Compania General Anglo-Mexicana de Seguros, S. A., in which suit there has been no actual service upon said defendant, but only constructive service by publication, and these garnishees are entitled to urge in this proceeding any defense that the said defendant might urge in said suit numbered 39643, and for such defense these garnishees allege:

"That plaintiff and intervener ought not to have or maintain said suit numbered 39643 against said defendant, or have or maintain this garnishment against these garnishees or either of them, because:

"(1) The policy of insurance mentioned in and declared upon by plaintiff's petition herein, and by the intervener, contained a stipulation and provision reading as follows: `It is understood and agreed that no judicial suit or demand shall be entered before any tribunal for the collection of any claim under this policy, unless such suits or demands are filed within one year, counted as from the date on which such damage occurs.'

"That said policy was issued in the Republic of Mexico, and that the above-quoted provision thereof was and is valid and enforceable under the laws of the Republic of Mexico, and that said contract was performable and intended to be performed in Mexico, and the clause above quoted is and was valid as a defense to any suit brought to recover on said policy after the expiration of one year from the date of the accrual of the cause of action or damage to the vessel mentioned in plaintiff's petition. That this suit was not filed within one year from and after the accrual of said cause of action, and these garnishees here now specially plead said facts and the said provision and stipulation of said policy in bar of plaintiff's cause of action herein asserted against them and in bar of the plaintiff's cause of action asserted in said suit numbered 39643.

"(2) The contract sued on by plaintiff in said suit numbered 39643 was made in the Republic of Mexico, and intended to be performed in the Republic of Mexico, and was subject to the laws of the said Republic of Mexico, which contain certain provisions in articles 1038, 1039, and 1043 of the Commercial Code of the Republic of Mexico, and which was in force at the time of the issuance of said policy, and at the time of the accrual of plaintiff's cause of action herein, and which read as follows:

"Article 1038. `The rights of action derived from commercial acts shall be subject to prescription in accordance with the provisions of this Code.'

"Article 1039. `The periods fixed for the enforcement of rights of action arising out of commercial acts shall be fatal except restitution against same is given.'

"Article 1043. `One year shall prescribe actions derived from contracts of life insurance, sea and land.'

"That, under and by virtue of the above-quoted provisions of the Mexican laws, any cause of action such as that asserted by plaintiff herein is and was barred if no suit was instituted thereon within one year from the date of the accrual thereof, and these garnishees here now specially plead that no suit was instituted on said policy against the said defendant within such one-year period, and plead such fact and the fact that said suit numbered 39643 was not instituted within said one-year period, nor were the garnishments in this proceeding sued out within one year from the accrual of the cause of action, and plead the provisions of said Commercial Code of the Republic of Mexico in bar of these garnishments, and of said suit numbered 39643, and pray that they may be hence dismissed.

"(3) These garnishees further specially plead that the policy declared on by plaintiff in said cause numbered 39643 was void from its inception because it was then represented to the defendant that the value of the vessel alleged to have been insured thereby was in excess of the amount of such policy and these garnishees allege that in fact said representations of plaintiff were not true, and the value of said vessel was not as much as the amount of said policy.

"(4) These garnishees allege that said vessel was not a total loss, and that, notwithstanding such fact, the said vessel was abandoned by plaintiff without notice to the defendant, in violation of the terms of the policy, and that it was the duty of plaintiff, under the terms of said policy, to repair said vessel at the cost and expense of defendant, and defendant is liable, if at all, only for the cost of such repairs, and not for the face of such policy.

"The defendant, Mexican insurance company, answered in the main suit by pleading the same provisions as to limitation under the Mexican law, and the provisions of the contract and other defensive matters that were pleaded by the garnishees; this answer being filed by attorneys appointed by the court to represent the Mexican insurance company, which had been cited by publication.

"Appellee demurred to all of the allegations of the answers of the Mexican insurance company, and the garnishees, which set up contractual limitation and limitation under the laws of the Republic of Mexico. These demurrers were sustained by the court, and judgment was rendered against the Mexican insurance company for $36,675 and against each of the American insurance companies, as garnishees, for $18,337.50. The court filed findings of fact and conclusions of law in both cases, as follows:

"`I. I find that on the 18th day of March, 1921, the defendant, the Compania General Anglo-Mexicana de Seguros, S. A., issued its policy No. 18098 to Charles B. Bonner of Tampico, Mexico, wherein said company insured the tug R. Waverly, also known as Waverly R., for a period of one year from the last-named date, for the sum of $35,000, the loss or damage under said policy being payable to the Texas & Gulf Steamship Company and C. J. Dick, as their respective interests might appear, and that the defendant received from the parties interested the full amount of premium demanded for the issuance of said policy.

"`II. I find that, on May 24, 1921, all the right of Charles B. Bonner in said policy was transferred to A. W. Turner, and that on July 18, 1921, all the rights of A. W....