Mobile County Mut. Ins. Co. v. Southern Agent Corp., 1111
| Decision Date | 22 January 1975 |
| Docket Number | No. 1111,1111 |
| Citation | 519 S.W.2d 186 |
| Parties | MOBILE COUNTY MUTUAL INSURANCE COMPANY et al., Appellants, v. SOUTHERN AGENT CORPORATION, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Alton C. Todd, Mills, Shirley, McMicken & Eckel, Galveston, John Louis Shook, Robert H. Osburn, Blassingame, Hendley & Coker, Dallas, for appellants.
Elmo Schwab, Barker, Lain, Smith & Schwab, Galveston, for appellee .
This is a plea of privilege case.
The plaintiff, Southern Agent Corporation (Southern), brought suit against Gaylon Young and Rodney D. Young, individually and doing business as Rodney D. Young Insurance Agency (the Agency) and the Mobile County Mutual Insurance Company (the Insurance Co.). Southern sought to recover from the defendant, jointly and severally, the sum of $15,535.01 on a debt together with reasonable attorney's fees, interest and costs.
Southern is in the business of financing insurance premiums for automobile insurance policies. In its petition, Southern alleged that it had undertaken the financing of premiums for certain insurance policies sold by the Agency and issued by the Insurance Co . It is further alleged that the agreement under which the premium for such a policy was financed called for the Insurance Co., through the Agency, to return to Southern the net returned premium and refund of commission upon cancellation of each such policy, considered individually. Southern allegedly possessed a limited power of attorney from each insured party whose premium was financed through Southern. Upon the insured's failure to make a payment to Southern on the note executed in consideration of Southern's financing the insurance premium, Southern was authorized to notify the insurance company to cancel the policy. Southern in turn was entitled to receive the net return premium and refund of commission due for the unexpired insurance.
The original petition alleges that the defendants failed to honor their commitments under the financing agreement and that they are jointly and severally indebted to Southern in the amount of $15,535.01 for return premiums and commission refunds which they refused to return to Southern. It was further alleged that the Insurance Co. refused to return to Southern the money owed, and instead applied the same to the account of the Agency because of certain debts owed by the Agency to the Insurance Co.
Each of the defendants is a resident of Dallas County, Texas. The suit was brought in the district court of Galveston County, Texas. Each of the defendants filed a plea of privilege to be sued in Dallas County. Southern filed a controverting affidavit to each plea of privilege and a hearing was held regarding said pleas of privilege. Following such hearing, each plea of privilege was overruled on July 30, 1974 and each defendant has appealed.
Southern contends that vanue was proper as to the Insurance Co. under Vernon's Tex.Rev.Civ.Stat.Ann. art. 1995 § 23 (1964). The pertinent portion of which may be paraphrased as follows:
Suit against a private corporation may be brought in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation has an agency or representative in such county.
The Insurance Co.'s second and third points of error urge that the plaintiff failed to present sufficient evidence to establish the exception under Section 23.
Upon the hearing of the plea of privilege, Southern had the burden of showing that it, as plaintiff, resided in Galveston County at the time the cause of action arose and that the Insurance Co. had an agency or representative in Galveston County at the time suit was filed. Also, Southern had the burden to prove a cause of action against the Insurance Co. by preponderance of the evidence. Vines v . Harry Newton, Inc., 445 S.W.2d 260 (Tex.Civ.App.--Houston (1st Dist .) 1969, writ dism'd); Brown Express Company v. Dieckman, 344 S.W.2d 501, 504 (Tex.Civ.App.--Austin 1961, no writ).
To establish that the Insurance Co. was represented by an agent in Galveston County at the time suit was brought, the plaintiff called James L. Brister. He testified that he was, and had been since 1972, an agent for the Insurance Co. in Galveston County and that he possessed contractually binding authority from the Insurance Co. Such testimony was sufficient to establish that the Insurance Co. had a representative in Galveston County at the time the suit was filed. Pepsi Cola Company v Sprangler, 401 S.W.2d 923, 925 (Tex.Civ.App.--Texarkana 1966, no writ).
The second venue fact that Southern had the burden to prove was that at the time...
To continue reading
Request your trial
-
Zodiac Corp. v. General Elec. Credit Corp.
...determined not by residence of any particular officer but by the principal office of the corporation. Mobile County Mutual Insurance Company v. Southern Agent Corporation, 519 S.W.2d 186 (Tex.Civ.App.-Houston (14th Dist.) 1975, n. w. h.); Pepsi-Cola Company v. Spangler, 401 S.W.2d 923, 925 ......
-
Dealer Service Plan, Inc. v. Chabarria, 6548
...to be filed. We also note that this issue was not raised at the trial level, and it has been waived. Mobile County Mutual Insurance Company v. Southern Agent Corporation, 519 S.W.2d 186 (Tex.Civ.App.--Houston (14th Dist.) 1975, no The Appellant's three points of error are overruled. The ord......