San Jacinto Life Ins. Co. v. Boyd.

• Decision Date: 07 May 1919
• Docket Number: (No. 1541.)
• Citation: 214 S.W. 482
• Parties: SAN JACINTO LIFE INS. CO. v. BOYD.
• Court: Texas Court of Appeals

214 S.W. 482

SAN JACINTO LIFE INS. CO. v. BOYD.

(No. 1541.)

Court of Civil Appeals of Texas. Amarillo.

May 7, 1919.

Rehearing Denied July 2, 1919.

Appeal from Lynn County Court; C. H. Cain, Judge.

Suit by M. M. Boyd against the San Jacinto Life Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.

Oliver J. Todd, of Beaumont, and B. P. Maddox, of Tahoka, for appellant.

G. E. Lockhart, of Tahoka, for appellee.

HUFF, C. J.

The appellee, Boyd, filed suit against appellant company in the county court of Lynn county, on the 9th day of May, 1918, alleging in substance that on or about the 15th day of August, 1917, the plaintiff made and entered into an oral contract with the defendant, whereby the defendant employed the plaintiff to represent the defendant as its district agent, comprising several counties in West Texas, and agreed to pay the plaintiff for his services as such agent the sum of $150 per month, and that said employment was to begin on the 4th day of September, 1917; that by reason of such employment, and by reason of the services and labor performed, the defendant became indebted to plaintiff in the sum of $450, and the defendant paid the plaintiff for such labor performed and services rendered the sum of $210, leaving a balance due him in the sum of $240; that by the terms and conditions of the contract the plaintiff was to receive a certain commission upon current business which he secured for the defendant, and plaintiff alleged that the defendant was due him the sum of $23.50 on account of commissions; that said contract and agreement was made and entered into in Tahoka, Lynn county, Tex., and part of the labor performed and services rendered were rendered in Lynn county, Tex.; and that this cause of action, at least in part, arose and accrued in Lynn county, Tex. The appellant filed in the lower court its plea of privilege to be sued in the county of its domicile, to wit, in Jefferson county, Tex., which plea of privilege was controverted by the affidavit of plaintiff, and on the 11th day of November, 1918, the defendant filed its original answer, which consisted of a general denial and special plea to the effect that the plaintiff's salary was contingent upon the condition that plaintiff and the agency established by him would produce $40,000 of paid-up business per month, excluding term policies, and that the money paid the plaintiff was paid to help him start his business and not as a payment due on salary. The case was tried before the court without a jury, who found against the plea of privilege and also rendered judgment for appellee, from which this appeal is prosecuted.

The first assignment is to the effect that the plaintiff's place of business is shown to have been in Jefferson county, and that the contract was entered into in that county, and that there were no such services to be performed in Lynn county as would fix the venue in that county, and that it was therefore error to overrule the plea of privilege. The court found, and the facts establish, that the appellant was a private corporation under the laws of the state of Texas. The appellee testified substantially that on or about the 22d day of August, 1917, he made with the appellant a verbal contract to work for it as general agent in West Texas territory, adjacent to Plainview and Tahoka, Tex.; that his duties as general agent under a verbal contract were to appoint local agents to write insurance for the appellant and to write insurance himself for appellant, for which services he was to receive a salary of $150 per month, also $1.50 on each $1,000 of paid-up business, also 50 per cent. graded first year business, commission on personal production; that in September 1917, he began work for the appellant, and continued to work for it for three months, during which time he endeavored to secure local agents for company; that among others he approached was one William Wallace of Tahoka, Tex., and that he tried to secure several others, whose names he could not remember; that he corresponded with the company from Tahoka and Plainview, with reference to its business; that he received one letter written on September 13, 1917, from the company, in which the company mailed him his salary check from September 4th to September 15th. Appellee also testified that while he was in the employ of the company he made Tahoka, Lynn county, Tex., his headquarters and worked in and out of Tahoka, Lynn county, Tex., for said company.

The trial court found that the appellant employed the plaintiff to represent it as one of its general agents, and while under the contract of employment appellee was authorized to represent appellant in any part of the state, but especially the territory surrounding West Texas and including Lynn county, Tex., he found that he performed services for the company and made Tahoka, Lynn county, his headquarters; from which place he worked and conducted his correspondence. Also, found that the company agreed to pay him for his services the sum of $150 per month and in...