Lawrence v. Continental Fire & Casualty Ins. Corp.

• Decision Date: 06 June 1947
• Docket Number: No. 13803.,13803.
• Citation: Lawrence v. Continental Fire & Casualty Ins. Corp., 203 S.W.2d 967 (Tex. App. 1947)
• Parties: LAWRENCE v. CONTINENTAL FIRE & CASUALTY INS. CORPORATION.
• Court: Texas Court of Appeals

203 S.W.2d 967

LAWRENCE v. CONTINENTAL FIRE & CASUALTY INS. CORPORATION.

No. 13803.

Court of Civil Appeals of Texas. Dallas.

June 6, 1947.

Rehearing Denied July 11, 1947.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by Continental Fire & Casualty Insurance Corporation against Ralph G. Lawrence, doing business as Government Personnel Underwriters, to recover premiums received by defendant as agent of plaintiff. From an order overruling defendant's plea of privilege, defendant appeals.

Order affirmed.

Locke, Locke & Purnell, of Dallas, for appellant.

J. Hart Willis, of Dallas, for appellee.

YOUNG, Justice.

This is a venue case, appellant having appealed from an order overruling his assertion of privilege to be sued in Bexar County, the place of his residence.

In November 1945, appellee Company had appointed Lawrence as its agent, his territory covering San Antonio, Texas, and vicinity; also Army and Navy reservations wherever automobile insurance may be written; and the main suit was by the Company to recover certain premiums received by defendant as agent and allegedly payable "at the Home Office of the Company at Dallas, Texas" in accordance with terms of the agency contract. Plea of privilege to be sued in Bexar County was duly filed, followed by controverting affidavit, pleading that venue had been properly laid in Dallas, Texas, perforce of subd. 5, Art. 1995, Vernon's Ann.Civ.St.; basis of suit being a contract in writing entered into between plaintiff and defendant to pay all premiums in Dallas County.

Paragraph 8 of the contract at issue (relied on as conferring venue) reads: "The Agent shall remit in full the balance shown due in the report as above provided, which remittance shall be made in time to reach the Home Office of the Company at Dallas, Texas, not later than the last day of the second calendar month following the calendar month for which said reports are made." The following stipulations were made by the parties pursuant to the hearing on said plea: "1. During the period of time when defendant was agent for plaintiff, or for the Federal Underwriters Exchange, in the San Antonio, Texas area, and before the time that plaintiff alleges defendant began withholding premiums on policies written with plaintiff, it was defendant's procedure to mail each month at San Antonio to plaintiff's home office in Dallas, Texas, a statement of the accounts current for the month, together with a check for the balance shown in such statement. 2. The plaintiff kept records of these remittances, records of losses, and records of claims at its home office in Dallas, Texas. The general files of the plaintiff company were also kept in the company's home office in Dallas, Texas. 3. The home office of the plaintiff is Dallas, Dallas County, Texas. 4. The record of each monthly account current forwarded by defendant and the record of each payment or remittance forwarded on such account current were duly audited and recorded at the home office of the company in Dallas, Dallas County, Texas. 5. All remittances made by defendant on said accounts current were mailed in San Antonio, addressed to the home office of the plaintiff at Dallas, Dallas County, Texas." The residence of Ralph G. Lawrence is, and at all times was in San Antonio, Bexar County, Texas.

The provisions of subd. 5, Art. 1995, amended in 193...