National Life Co. v. Thomason, 2410.

• Decision Date: 19 March 1942
• Docket Number: No. 2410.,2410.
• Citation: 160 S.W.2d 582
• Parties: NATIONAL LIFE CO. v. THOMASON.
• Court: Texas Court of Appeals

160 S.W.2d 582

NATIONAL LIFE CO. v. THOMASON.

No. 2410.

Court of Civil Appeals of Texas. Waco.

March 19, 1942.

Rehearing Denied April 9, 1942.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Suit by Elbert J. Thomason against the National Life Company to enjoin defendant from collecting allegedly excessive premium on life policy, or from canceling the policy, and for writ of mandamus to prohibit defendant from collecting excessive premiums and to compel defendant to accept contract premiums. From an order overruling defendant's plea of privilege, defendant appeals.

Affirmed.

Coker, Rhea & Vickrey, of Dallas, for appellant.

Harris & Gordon, of Waco, for appellee.

HALE, Justice.

This is an appeal from an order overruling a plea of privilege. The sole question presented for decision is whether the asserted cause of action is a suit on a policy of insurance within the meaning of Exception 28 of Article 1995, Vernon's Annotated Statutes.

Elbert J. Thomason instituted the suit in McLennan County on December 5, 1940, against National Life Company. He alleged that on November 8, 1919, the defendant issued to him a policy insuring his life in the sum of $2,000 at an annual premium rate of $33.20; that he had paid all premiums due thereon prior to November 8, 1940, as they matured; that in October, 1940, defendant unlawfully demanded the payment of $159.20 as the annual premium for the policy year beginning November 8, 1940, in violation of the terms of the contract; that he was 62 years of age and by reason thereof could not procure other insurance; that he was ready, able and willing to pay the contract premium of $33.20, which amount he tendered into the registry of the court. He prayed for the immediate issuance of a temporary injunction restraining the defendant from collecting said premium, or cancelling said policy for failure to pay the same; that upon final hearing he have judgment perpetuating the injunction and for a writ of mandamus prohibiting defendant from collecting an excessive premium and compelling defendant to accept the contract premium, keeping the policy in force as long as he pays the contract premium, and "for such other relief, in law and in equity, to which he may be justly entitled."

The defendant timely filed its plea of privilege in statutory form, asserting its right to be sued in Dallas County, Texas, alleging that such was the county of its residence in that it was a corporation organized under the laws of the State of Iowa, with a permit to do business in Texas, its only office in Texas being in Dallas County. Plaintiff seasonably filed and presented his controverting affidavit in which he incorporated his original petition, alleged the facts therein pleaded to be true, that he resided in McLennan County, was bringing the suit as a policy-holder and that his cause of action was therefore within Exception 28 of said Article 1995. Upon the hearing of the issue thus joined, plaintiff introduced in evidence his policy of insurance and testified to the existence of the venue facts alleged by him. Thereupon the court overruled defendant's plea of privilege and hence this appeal.

Appellant presents the case for review in this court upon one proposition, as follows: "It appearing that the cause of action asserted by the plaintiff in his petition and controverting plea as against the defendant, and disclosed by the evidence, was one seeking only an injunction restraining the defendant from collecting a premium or wrongfully cancelling a policy of insurance and mandatorily requiring the defendant to accept a tendered premium and keep the policy in force, such proceeding was not a suit on a policy within the contemplation of subdivision 28 of Article 1995, Revised Statutes, and there being no pleading or proof bringing the case under any other exception to the venue statute, the defendant's plea of privilege timely filed and in statutory form should have been sustained." Subdivision...