Mutual Fire & Auto. Ins. Co. v. Kirkman

• Citation: 231 S.W.2d 459
• Decision Date: 28 April 1950
• Docket Number: No. 2799,2799
• Parties: MUTUAL FIRE & AUTOMOBILE INS. CO. v. KIRKMAN. ,Court of Civil Appeals of Texas, Eastland
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 459

231 S.W.2d 459

MUTUAL FIRE & AUTOMOBILE INS. CO. v. KIRKMAN.

No. 2799.

,Court of Civil Appeals of Texas, Eastland.

April 28, 1950.

Rehearing Denied June 9, 1950.

John Touchstone, Dallas, for appellant.

Levie Old, Brownwood, for appellee.

GRISSOM, Chief Justice.

W. E. Kirkman sued Mutual Fire & Automobile Insurance Company in Brown County on a fire insurance policy covering a caterpillar tractor. Kirkman alleged that said insurance company executed a policy insuring him against loss of his tractor by fire; that it was destroyed by fire in Brown County and his loss was $3,000.00. The insurance company filed a plea of privilege to be sued in Dallas County. Kirkman filed a controverting affidavit in which he alleged the cause of action arose in Brown County; that said company was a corporation, and that venue was in Brown County under exception 23, Article 1995, Vernon's Ann.Civ.St. Upon a trial to the court the plea of privilege was overruled and the insurance company has appealed. The appellee has not filed a brief.

Appellant admitted that it was a corporation engaged in writing fire insurance on motor vehicles and that the policy sued on was issued. Appellant's admission contained the following statement: 'It further alleges that it is a corporation existing under the Mutual Assessment Plan.' Appellant contends that 28a, Article 1995, is the only exception applicable to a Statewide Mutual Assessment Company and that appellee has failed to plead or prove a case within that exception and, therefore, the judgment should be reversed and the cause transferred to Dallas County. Said exception provides: 'In all actions brought against Fraternal Benefit Societies and/or Statewide Mutual Assessment Companies, regardless of the plan upon which they operate and whether incorporated or not, growing out of or based upon any alleged right or claim or loss or proceeds due, arising from or predicated upon any policy or contract issued or made by such Fraternal Benefit Society and/or Statewide Mutual Assessment Companies, venue shall lie in the county where the policyholder or beneficiary instituting such suit resides or in the county of the principal office of such association or where such cause of action arose.'

The record does not conclusively show that appellant is a Statewide Mutual Assessment Company. See Underwriters Life Ins. Co. v. Bornemann, Tex.Civ.App., 141 S.W.2d 1005, 1007. Appellee specifically alleged venue was in Brown County under exception 23, Article 1995. However, appellee alleged his cause of action arose in Brown County. If he proved this allegation, venue was established in Brown County under exception 28a. Edmonson v. Underwriters Life Ins. Co., Tex.Civ.App., 153 S.W.2d 236, 237.

Venue was established in Brown County under exception 23 by allegation and proof that appellant is a private corporation and that part of appellee's cause of action arose in Brown County, unless appellant is (1) a Statewide Mutual Assessment Company and (2) venue as to such a company is governed exclusively by exception 28a. The provision that 'venue shall lie' in the county where the cause of action arose, etc., merely signifies an intention to give a plaintiff the legal right, if he chooses, to maintain such a suit there. National Life Company v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024. This language is not equivalent to the command that the suit 'must be brought' in a certain county, as such phrase is used in some exceptions to Article 1995. See Bachus v. Foster, 132 Tex. 183, 122 S.W.2d 1058, 1060; Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867 and Hodges v. Coke County, Tex.Civ.App., 196 S.W.2d 935. We have been cited to no special venue statute, nor have we found one, that comes within exception 30, Article 1995, which requires that a suit against such a fire insurance company as appellant be brought in a certain county. We are of the opinion that 28a is not the only exception applicable to such a suit. The judgment should be sustained under a presumed finding that appellant is a private corporation and that, at least, a part of appellee's cause of action arose in Brown County. Union Trust Estate v. Orr, Tex.Civ.App., 3 N.W.2d 472, 474; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533. The tractor was destroyed by fire in Brown County.

Appellant contends that appellee did not prove that a cause of action 'arose' in Brown County, or elsewhere, because he did not prove that the insured tractor was registered and that he obtained a certificate of title thereto. Appellant relies upon the Certificate of Title Law, Article 1436-1, Vernon's Ann.P.C., and, particularly, Sections 52 and 53 which make it unlawful to buy a motor vehicle 'registered or licensed in this State' without then and there demanding of the seller...