Southwestern Life Ins. Co. v. Sanguinet, 15145

• Decision Date: 09 June 1950
• Docket Number: No. 15145,15145
• Parties: SOUTHWESTERN LIFE INS. CO. v. SANGUINET.
• Court: Texas Court of Appeals

Page 727

231 S.W.2d 727

SOUTHWESTERN LIFE INS. CO. v. SANGUINET.

No. 15145.

Court of Civil Appeals of Texas, Fort Worth.

June 9, 1950.

Rehearing Denied July 14, 1950.

James P. Swift, J. L. Walsh, Jr., and Paul McCarroll, Dallas, for appellant.

Fay W. Prescott, Fort Worth, for appellee.

SPEER, Justice.

The subject of this suit is a life insurance policy. The controversy is, who is entitled to the proceeds and how, when and where shall the provisions of the contract be enforced.

From the pleadings of all parties and certain stipulated facts, it is quite apparent that Southwestern Life Insurance Company had issued its policy of insurance for $1,000 on the life of Robert Marshall Sanguinet, naming Nannie Mary Sanguinet, wife of the insured, as beneficiary. This policy was in effect at the time of the death of insured from drowning on August 29, 1949; he left no will. Insured had borrowed $28.70 on the policy and that amount was properly deductible from the face of the policy.

The insured and his wife (the beneficiary) were divorced in December, 1948, and the wife was awarded full custody of their only child, James Robert Sanguinet, a minor, and it was decreed that the husband pay $10 per week for the support of the child until he became sixteen years of age. Insured had made all payments of support until the date of his death.

Shortly after the death of the insured, W. M. Sanguinet, Sr., was appointed temporary administrator of deceased's estate. Both the named beneficiary wife and the administrator made demands on the insurance company for payment. The Company advised both claimants of its willingness to pay if they could agree upon which was entitled to receive it. No agreement could be reached.

On September 28, 1949, Southwestern Life Insurance Company filed an interpleader action in a district court of Dallas County, naming as defendants the above named administrator residing in Dallas County, and the wife, a resident of Tarrant County. Confession of liability was made in the petition by the Company and full amount due was paid into the registry of the court, with prayer for an adjudication determining the rightful owner and for a reasonable attorney's fee. When the interpleader suit was filed, its attorney advised the clerk to withhold issuance of citation until further notice. On the same day the petition was filed, the attorney for the Company wrote the attorneys for the two claimants with whom he had had previous correspondence, advising them of the filing of the suit, sent each a copy of the petition of interpleader and advised that he had not ordered citation issued under the belief that each would prefer to answer and thus save court costs and expenses. Neither of the defendants replied to the letter, nor did either file answer. The Insurance Company thereafter, on October 20, 1949, procured the issuance of process and caused it to be promptly served on the administrator and on Nannie Mary Sanguinet, the named beneficiary.

In the meantime, to wit, on October 15, 1949, Nannie Mary Sanguinet instituted the suit from which this appeal came in Tarrant County against the Insurance Company, seeking a recovery for the amount due on the policy, and by appropriate allegations sought recovery of statutory penalties and attorney's fees for failure of the Company to make prompt payment.

The Insurance Company (defendant in the instant case) answered by plea in abatement and exceptions to the court's exercising jurisdiction in the controversy on account of the pending suit; the material parts of the pending petition in Dallas County were set out at the time of filing the plea in abatement. Defendant further answered, subject to and insisting upon its plea in abatement and exceptions, admitting the issuance of the policy and its liability thereon and again asserted the existence of the Dallas County case, re-affirming substantially all that it had asserted in that petition.

The court heard the plea in abatement and exceptions and entered an order overruling them and postponed the hearing on the merits until a later date, stating that before the date set for trial defendant could amend and make new parties if it so desired. Defendant timely excepted to the overruling of the plea and exceptions to the exercise of jurisdiction.

The Insurance Company thereafter filed its first amended answer, which contained this language: 'without waiving its exception to the action of the court in overruling this defendant's plea in abatement filed herein on October 25, 1949 but intending expressly to reserve such exception * * *' Then followed a reference to the plea and the stipulation of facts when the plea was heard and overruled. In the amendment the administrator of deceased's estate was made a party to the end that at a trial on the merits the court could dispose of the respective interests of the parties claiming the proceeds of the policy.

The administrator answered, claiming the proceeds for the estate he represented under allegations, among which was one that the beneficiary (the wife) had no insurable interest in the life of deceased. We think it unnecessary to give more of the details of the administrator's answer.

Testimony during the trial developed that the attorney for Mrs. Sanguinet had filed a claim with the Company for the minor son, James Robert Sanguinet, but had later withdrawn it, and then the Company filed a trial amendment setting up such facts and asked that the minor be made a party defendant. Mrs. Sanguinet was his legal guardian but the court appointed a guardian ad litem to answer and represent his interest. An answer was filed claiming the proceeds of the policy as the only heir of insured; the answer asserted however that if the mother was awarded the proceeds he made no claim thereto in his own right.

Trial on the merits was had to the court. Judgment was awarded to Nannie Mary Sanguinet for the proceeds of the policy but no penalty or attorney's fees were allowed and the costs were taxed against her. The administrator was denied a recovery. Attorney's fees to the Insurance Company were denied. All parties excepted to the judgment and gave notice of appeal. The Insurance Company alone perfected an appeal to this court. No findings of fact or conclusions of law were requested or filed.

Appellant (Insurance Company) presents three points of error. They are in substance: Error of the court in overruling its plea in abatement, its exceptions to the exercise of jurisdiction, and failure of the court to allow it attorney's fees when the case was tried on its merits.

We have concluded that the first two points are well taken. This requires a reversal of the judgment. If we are correct in this, we do not reach the third point, nor the several cross-points urged by appellee, plaintiff below.

Under our system of judicial procedure, our district courts have coordinate jurisdiction and our rules of practice require that such courts accord comity to each other to avoid a multiplicity of suits and to prevent different judgments being entered between the same parties upon the same issues. To accomplish these things it is the recognized rule in this state that the court first acquiring jurisdiction retains it to the exclusion of all other similar courts until the issues are tried and determined. Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647, 26 Am.St.Rep. 776; Sparks v. National Bank of Commerce, Tex.Civ.App., 168 S.W. 48, writ dismissed; Benson v. Fulmore, Tex.Com.App., 269 S.W. 71; Cleveland v. Ward, Judge, 116 Tex. 1, 285 S.W. 1063; Cook v. Gregg, Tex.Civ.App., 226 S.W.2d 146; Wheelis v. Wheelis, Tex.Civ.App., 226 S.W.2d 224. In Way v. Coca Cola Bottling Co., 119 Tex. 419, 29...