State Farm County Mut. Ins. Co. of Texas v. Landers

• Decision Date: 14 March 1975
• Docket Number: No. 17590,17590
• Citation: 520 S.W.2d 604
• Parties: STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellant, v. Donald L. LANDERS et ux., Appellees.
• Court: Texas Court of Appeals

Page 604

520 S.W.2d 604

STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellant, v. Donald L. LANDERS et ux., Appellees.

No. 17590.

Court of Civil Appeals of Texas,

Fort Worth.

March 14, 1975.

Strasburger, Price, Kelton, Martin & Unis, and Robert Keith Drummond, Dallas, for appellant.

John W. Herrick, Fort Worth, and Richard E. Ward, Roanoke, for appellees.

OPINION

BREWSTER, Justice.

This is an appeal by the defendant, State Farm County Mutual Insurance Company of Texas, from the trial court's order overruling its plea of privilege. The plaintiffs, Donald L. Landers and wife, Ola Mae, sued to recover benefits provided for under the uninsured motorist coverage of an insurance policy that was issued to them by defendant.

We affirm.

Part IV of the policy sued upon contained the following provisions relating to uninsured motorists coverage that are material here: (The insurer agrees) 'To pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury, . . . caused by accident and arising out of the ownership . . . of such uninsured motor vehicle . . ..'

Under definitions in this Part IV of the policy, an 'uninsured motor vehicle' is described as including a 'hit-and-run automobile.'

The definitions in that part of the policy further provide the following: "hit-and-run automobile' means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile'; (b) the Insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (c) at the company's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.' (Emphasis supplied.)

The plaintiffs sought to maintain venue of the case in Tarrant County under Subdivision 23 of Art. 1995. To do so one thing that they had to prove at the venue hearing is that they had a cause of action against the defendant corporation. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605 (1950), and 60 Tex.Jur.2d 64, Venue, Sec. 206.

Plaintiffs' petition alleged in substance that they were driving west in their car on the Stemmons Freeway in Dallas and were approaching the toll gate to the Dallas/Fort Worth Turnpike when a tractor-trailer combination (a truck) negligently swerved into their pathway, causing the rear wheels of the trailer to collide with plaintiffs' car and cause personal injuries to Mrs. Landers. Plaintiffs further alleged in substance that after the collision the tractor-trailer did not stop and plaintiffs are unable to say who was the driver or owner of the tractor-trailer.

Plaintiffs alleged that they have complied with all conditions precedent in the policy and that they have made demand on defendant...