McFarling v. Cavender

Decision Date10 June 1971
Docket NumberNo. 7264,7264
Citation469 S.W.2d 478
PartiesTom I. McFARLING, Conservator of National Bankers Life Insurance Company, Appellant, v. Norman Wesley CAVENDER, Appellee.
CourtTexas Court of Appeals

Strauburger, Price, Kelton, Martin & Unis, Dallas, for appellant.

Lamson & Plessala, Port Arthur, for appellee.

KEITH, Justice.

In this venue appeal, we are required to construe the pleadings of the plaintiff, appellee herein, to determine whether or not the provisions of § 8, Art. 21.28--A, Insurance Code, quoted in the margin, 1 fixes venue in Jefferson or Travis Counties. We will speak of the parties as they appeared in the trial court and the following statement is adopted from defendant's brief with which plaintiff is in basic agreement.

Suit was filed in Jefferson County by Appellee Norman Wesley Cavender, Individually and as Next Friend of Charles Paul Cavender, a Minor, concerning an insurance policy originally issued by National Bankers in 1954 upon the life of Charles Paul Cavender, which was sold and transferred to Southern States Life Insurance Company prior to February 1959, the assumption by Southern States being accepted, signed, and approved by Plaintiff Norman W. Cavender, who thereafter paid premiums to Southern States; Southern States in or about June of 1966 merged with Alabama National Life Insurance Company, which assumed said policy, Plaintiff Cavender thereupon paying premiums to Alabama National. Plaintiff further alleged that he has been notified by the Department of Insurance of the State of Alabama that Alabama National Life Insurance Company was placed in receivership under the laws of the State of Alabama in March, 1970, and the policy in question sold by the Receiver to American Benefit Life Insurance Company, under terms which reduced the benefits provided by the policy.

Plaintiff alleged that there were fraudulent representations by National Bankers which induced him to sign the receipt of the assumption certificate and pay premiums to Southern States and that Plaintiff therefore elects to rescind and cancel the policy and demands return of all premiums paid from Defendant, in the amount of $2,985.60 together with interest on each premium from the time paid, as to each such premium after December, 1954.

Tom I. McFarling, Conservator by appointment of the Commissioner of Insurance of the State of Texas under order of January 25, 1971, filed a plea of privilege herein, asserting venue in Travis County.

Plaintiff, contending that the quoted statutory language fixes venue in Travis County on all cases 'except for causes of action based upon terms of an insurance policy * * * issued by an insurance company placed in conservatorship,' points to paragraph nine of his petition 2 and says that it is 'legally sufficient for the court to render a judgment against Appellant for policy benefits through the 16th year.'

No testimony was introduced upon the hearing and the parties stipulated that 'the only question before the Trial Court was a construction of the Plaintiffs' pleadings * * * as to whether or not such pleadings set forth a cause of action establishing venue in Jefferson County, Texas, with due regard' to the quoted statute. From an order overruling his plea of privilege, the Conservator perfected his appeal. We reverse and order the transfer of the cause for the reasons now to be stated.

To deprive a defendant of the right of trial in the county of his domicile, the case must clearly come within one of the exceptions found in the statute. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 623 (1939). And, if there is an equal doubt between the exception and the rule, the doubt is to be resolved in favor of the rule. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951). Under the provisions of Subdivision 30, Art . 1995, V.A.C.S. unless the suit is clearly one 'upon the terms' of the insurance policy, 'the suit shall be commenced in the county to which jurisdiction may be so expressly given.' The statute which we construe is mandatory, not permissive, and the provisions of Subdivision 30 are controlling. Cf. Langdeau v. Burke Investment Company, 163 Tex. 526, 358 S.W.2d 553, 556 (1962).

Plaintiffs' counsel admits, as he must, that paragraph nine of his petition 'might well be subject to proper exceptions to more specifically plead the cause of action' upon which he seeks to recover. We note that the paragraph in question does not seek any specific sum; there are no allegations that a present claim exists under the policy, or that after demand, payment has been refused. The minor plaintiff is living so that death benefits are not due; there is no claim made for disability benefits, nor is there a suggestion that a cash loan on the policy has been denied. The policy itself is attached to the petition as an exhibit, but an examination thereof does not, under the allegations found in paragraph nine, disclose a Present cause of action upon the policy itself.

Considering the pleading of the plaintiffs in its entirety, it clearly appears that the plaintiffs seek rescission, not a recovery upon the policy of insurance. The primary or dominant purpose was to avoid the contract, ab initio, and to recover the premiums paid since its inception; the alternative allegation which we consider does not, in our opinion, state a cause of action 'upon the terms' of the policy. It follows, therefore, that we disagree with the statement of plaintiffs' counsel that his petition 'is legally sufficient for the court to render a judgment against appellant for policy benefits provided therein through the 16th...

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5 cases
  • Burton v. Rogers
    • United States
    • Texas Court of Appeals
    • March 15, 1973
    ... ... McFarling ... McFarling v. Cavender ... ...
  • Langford v. Kraft
    • United States
    • Texas Court of Appeals
    • July 26, 1973
    ... ... McFarling ... McFarling v. Cavender ... ...
  • Harwood v. Hunt
    • United States
    • Texas Court of Appeals
    • November 11, 1971
    ... ...         See also, McFarling v. Cavender, 469 S.W.2d 478, 480 (Tex.Civ.App., Beaumont, 1971, no writ) wherein additional authorities on the 'primary and dominant purpose' ... ...
  • State Dept. of Highways and Public Transp. v. Herman
    • United States
    • Texas Court of Appeals
    • February 6, 1979
    ... ... Cox v. Palacios, 188 S.W.2d 688 (Tex.Civ.App. San Antonio 1945, no writ); Kendall Corporation v. Ruthstrom, supra; McFarling v. Cavender, 469 S.W.2d 478 (Tex.Civ.App. Beaumont 1971, no writ); Cecil Ruby Company v. Jones, 398 S.W.2d 337 (Tex.Civ.App. Eastland 1965, writ ... ...
  • Request a trial to view additional results

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