Southern Farm Bureau Cas. Ins. Co. v. Alexander

• Decision Date: 16 June 1959
• Docket Number: No. 7132,7132
• Citation: 326 S.W.2d 644
• Court: Texas Court of Appeals
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Mrs. Mae ALEXANDER, Appellee.

Page 644

326 S.W.2d 644

SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Mrs. Mae ALEXANDER, Appellee.

No. 7132.

Court of Civil Appeals of Texas, Texarkana.

June 16, 1959.

Ramey, Brelsford, Hull & Flock, Tyler, for appellant.

Baldwin & Baldwin, Marshall, for appellee.

FANNING, Justice.

Mrs. Mae Alexander, widow of E. R. Alexander, deceased (and other parties who were later dismissed), sued Southern Farm Bureau Casualty Insurance Company in the District Court of Harrison County, Texas. Defendant, a foreign corporation, filed its plea of privilege seeking the transfer of the cause of McLennan County, Texas, the county of its Texas residence, which plea was controverted by plaintiff relying on venue under exceptions 27 and 28 to Art. 1995, Vernon's Ann.Civ.St. The trial court, without the intervention of a jury, heard and overruled defendant's plea of privilege. Defendant has appealed.

Appellant presents three points wherein it contends to the effect that the trial court erred in overruling the plea of privilege because appellee wholly failed to prove by a preponderance of the evidence that the action was maintainable in Harrison County, Texas, under either exception 27 or exception 28 or any other exception to Art. 1995, V.A.C.S.

Mrs. Mae Alexander and her deceased husband, E. R. Alexander, at all times material hereto, were residents of Minden, Louisiana. Appellant insurance company is a foreign corporation but maintains a Texas residence and domicile in McLennan County, Texas--it also had no agency or representatives in Harrison County, Texas.

On or about September 7, 1957, appellant insurance company, through its agent in Minden, Louisiana, issued an insurance policy to E. R. Alexander which contained, among other things, a so-called 'death indemnity coverage' which provision provided in substance that appellant would pay the principal sum ($5,000) in the event the death of the insured resulted directly and independently of all other causes from bodily injury caused by accident and sustained by the insured through being struck by an automobile. Mrs. Alexander, as beneficiary under the policy, in this cause sought recovery of $5,000 on said 'death indemnity coverage' feature of said insurance policy.

The only evidence offered by plaintiff was her own testimony and a certified copy of a death certificate relating to the death of E. R. Alexander. Plaintiff Mrs. Alexander testified to the effect that she and her husband, E. R. Alexander, were visiting in the town of Leigh in Harrison County, Texas, on or about October 25, 1957, when a truck rolled back against Mr. Alexander, inflicting injury to him, that they went home to Minden, Louisiana, and that on October 26, 1957, Mr. Alexander entered a hospital at Shreveport, Louisiana, and remained there until he died there on November 3, 1957. Mrs. Alexander attempted to testify to the effect that the said injury caused her husband's death, but on objection of defendant this offered testimony was properly excluded by the trial court.

No proof was offered to show that appellant had any agency or representative in Harrison County, Texas. It was undisputed that appellant was a foreign corporation with its Texas residence or domicile being in McLennan County, Texas. It was further undisputed that the insurance policy in question was not written, executed, or delivered in Harrison County, Texas.

Under exception 27 to Art. 1995, V.A.C.S., a plaintiff has the right to sue a foreign corporation in any county (a) where the cause of action or a part thereof accrues; or (b) where the defendant may have an agency or representative; or (c) in the county in which the principal office of such company may be situated; or (d) in the county where plaintiff resides if the defendant has no agent or representative in the State of Texas.

Appellee offered no proof on the requirements b, c and d, supra. As we understand appellee's position, she contends that she proved a part of a cause of action accruing in Harrison County sufficiently to maintain venue therein under exception 27 of the venue statute. Appellee's view seems to be that proof of the injury in Harrison County proves that a part of the cause of action accrued in Harrison County.

Therefore, in order for appellee in this cause to maintain venue in Harrison County, Texas, under said exception 27, it was necessary for her to prove (1) that she had a cause of action against appellant, and (2) that the cause of action, or a part thereof, accrued in Harrison County, Texas. See the following authorities: Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, and General Motors Corp. v. Ewing, Tex.Civ.App., 300 S.W.2d 714.

In Victoria Bank & Trust Co. v. Monteith, supra, 158 S.W.2d 63, 67 it is stated:

'A cause of action does not accrue or arise unless there is a cause of action. To prove that a cause of action has arisen in his favor a plaintiff must prove that he in fact has a cause of action.'

In General Motors Corp. v. Ewing, supra, 300 S.W.2d 714, 718, it is stated:

'Although plaintiff did not specifically allege that venue was laid in Van Zandt County under subdivisions 23 and 27, Art. 1995, Vernon's Ann.Civ.Sts., yet his controverting affidavit did specifically allege 'That because at least a part of the cause of action arose in Van Zandt County, Texas, this court has venue to try said suit.' Much has been written on subdivisions 23 and 27 of our venue statute and it is now well settled that for plaintiff to sustain venue in the county where the cause of action or a part thereof arose, the plaintiff must prove that he has a cause of action against the defendant by a preponderance of the evidence.' Citing Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, and other cases.

The term 'cause of action' as related to the venue statutes was defined in Birkes v. Lloyds Caualty Insurer, Tex.Civ.App., 209 S.W.2d 438, 440, as follows:

'A cause of action consists not alone of the genesis of the right but of the breach of the right, and in order to maintain the suit in some county other than that in which the corporation's principal place of business is located, it is necessary and only necessary that some part of the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is filed.'

For similar definitions also see the following cases: Brown Cracker & Candy Co. v. Jensen, Tex.Civ.App., 32 S.W.2d 227; Hoffer Oil Corporation v. Brian, Tex.Civ.App., 38 S.W.2d 596; San Jacinto Life Ins. Co. v. Boyd, Tex.Civ.App., 214 S.W....