Stonewall Ins. Co. v. Donald, 17272

Decision Date14 January 1972
Docket NumberNo. 17272,17272
Citation475 S.W.2d 876
PartiesSTONEWALL INSURANCE COMPANY, Appellant, v. Paul DONALD, Appellee.
CourtTexas Court of Appeals

Oster & Kaufman, and Stanley M. Kaufman, and Herbert Garon, Jr., Dallas, for appellant.

Jack Connell, Bowie, for appellee.

OPINION

BREWSTER, Justice.

The defendant, Stonewall Insurance Company, is here appealing from an order overruling its plea of privilege. Defendant was a foreign corporation that had a permit to do business in Texas and the address of its agent for service was in Dallas County.

On appeal the plaintiff urges that the trial court's ruling was proper, contending that venue can properly be maintained in Montague County, the county of suit, under the parts of Subdivisions 23 and 27 of Article 1995, Vernon's Ann.Civ.St., that we quote below and also under Subd. 5 of that statute.

The only part of Subd. 23 that is material here provides: 'Suits against a private corporation, . . . may be brought in the county . . . in which the cause of action or part thereof arose; . . ..'

The only part of Subd. 27 that is material here provides: 'Foreign Corporations . . . doing business within this State, may be sued in any county where the cause of action or a part thereof accrued, . . ..'

On this appeal the plaintiff concedes that he did not prove at the venue hearing a right to keep venue of this case in the county of suit under any part of either Subd. 23 or 27 other than the parts that we have quoted above, so the other parts of such subdivisions are immaterial here.

In this case plaintiff's petition alleged in substance: that he had previously been injured in a car wreck that he had with one McAllister; that he, Paul Donald, had, in a prior case in that Montague County District Court, sued McAllister for damages for personal injuries caused plaintiff in that automobile collision between their two cars; that he obtained in that case a default judgment for $17,464.00 in damages for such personal injuries against McAllister; that there was in effect at the time of the collision a policy of insurance issued by defendant, Stonewall Insurance Company, to McAllister, which contract provided that the company would pay on behalf of McAllister all sums that he should become legally obligated to pay as damages for personal injuries sustained by others As a result of a car wreck involving the car described in the policy, which car was the same one being driven by McAllister at the time of the wreck; that pursuant to that contract of insurance the defendant here became bound to pay plaintiff the amount of the judgment that he recovered against McAllister in the other case that was also in this same court; that although defendant has often been requested to pay the judgment, it has paid no part thereof; and plaintiff prayed for a recovery from the insurance company of the amount of such judgment, interest and costs.

To sustain venue under Subd. 23 plaintiff was required to allege and to prove at the venue hearing by a preponderance of the evidence: (1) that defendant was a private corporation; (2) that plaintiff had a cause of action against defendant; and (3) that such cause of action or a part thereof arose in Montague County, Texas. See Grayson Enterp., Inc. v. Texas Key Broadcasters, Inc., 390 S.W.2d 346 (Eastland Civ.App., 1965, writ dism.).

To sustain venue under the applicable part of Subd. 27 plaintiff had the burden of pleading and proving by a preponderance of the evidence at the venue hearing that: (1) defendant was a foreign corporation; (2) that plaintiff had a cause of action against defendant; and (3) that at least a part of the cause of action arose in the county of suit. See on this General Mills, Inc. v. Livingston, 333 S.W.2d 215 (Eastland Civ.App., 1960, no writ hist.).

So under both Subds. 23 and 27, the plaintiff was required to prove at the venue hearing by a preponderance of the evidence the cause of action that he had alleged against the insurance company.

The insurance company contends that plaintiff failed to meet that burden and that for that reason the plaintiff did not prove a right to keep venue of the case in Montague County under either Subds. 23 or 27 of Art. 1995. We sustain this contention.

Neither the plaintiff nor any other witness to the alleged car wreck testified. In order to prove the cause of action that he alleged it was necessary that plaintiff offer at the venue hearing some evidence to prove that he was in fact involved in an automobile collision with McAllister's particular car that was alleged to be the one insured, and that Donald sustained injuries therein. It was also necessary that he prove the date of the occurrence of such alleged wreck in order to prove that it occurred within the time period covered by the policy sued on.

At the venue hearing plaintiff offered no evidence that tended to establish those facts.

It is true that he did offer into evidence the judgment that he had obtained against McAllister in Case No. 15171 (to which case the defendant here was not a party) and then offered his own lawyer's testimony that the nature of that case was one by Donald against McAllister for injuries and damages allegedly received by Donald in an accident with McAllister. It was necessary in establishing plaintiff's case that these facts also be proved, but proof of them did not supply the particular omission in the evidence that we have referred to above.

In addition to the above, the plaintiff offered no evidence whatever tending to prove the terms of the contract of insurance that was sued upon, nor the period of time that the policy covered, nor the description of the particular car belonging to McAllister that plaintiff had alleged was the one covered by the policy. This proof was necessary in order to prove the cause of action pleaded, even though defendant did not deny under oath the execution of the contract as required by Rules 93 and 86 of Texas Rules of Civil Procedure. See Thompson v. Republic Acceptance Corporation, 388 S.W .2d 404 (Tex.Sup., 1965).

The proof of these matters listed above were all essential to establish the cause of action sued upon. Any time plaintiff set out to prove up the...

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3 cases
  • Mobil Oil Corp. v. Cook
    • United States
    • Texas Court of Appeals
    • April 23, 1973
    ... ... Stonewall Insurance Company v ... Donald, 475 S.W.2d 876 (Tex.Civ.App.--Fort ... ...
  • Pool Co. v. Hydra-Rig, Inc.
    • United States
    • Texas Court of Appeals
    • November 19, 1981
    ...of action against the appellants; and (2) the cause, or part thereof, arose in Tarrant County. Stonewall Insurance Company v. Donald, 475 S.W.2d 876 (Tex.Civ.App.-Fort Worth 1972, writ dism'd); Van Waters & Rogers, Inc. v. Kilstrom, 456 S.W.2d 570 (Tex.Civ.App.-Waco 1970, no writ); Appell P......
  • Mobile County Mut. Ins. Co. v. Romack
    • United States
    • Texas Court of Appeals
    • June 7, 1972
    ...into evidence, and we have no way of knowing the terms of the policy referred to or its proper application. Stonewall v. Insurance Company v. Donald, 475 S.W.2d 876, 879 (Tex.Civ.App.--Fort Worth 1972, no writ indicated). We believe that appellant in its brief has intended to and has argued......

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