Wheeler v. Kight, 40753
| Decision Date | 29 April 1958 |
| Docket Number | No. 40753,40753 |
| Citation | 102 So.2d 374,233 Miss. 425 |
| Parties | J. D. WHEELER, Receiver for Allied Underwriters, v. K. K. KIGHT, d. b. a. Malvern-Hot Springs Transportation Company. |
| Court | Mississippi Supreme Court |
James Stone & Sons, Oxford, for appellant.
Fant & Bush, Holly Springs, for appellee.
On August 12, 1954, the appellant J. D. Wheeler, Statutory Receiver for the Allied Underwriters, an unincorporated 'reciprocal insurance exchange' domiciled in Dallas, Texas, and which receiver was also the liquidator for the Board of Insurance Commissioners of the State of Texas, filed this suit in the Circuit Court of Marshall County, Mississippi, against the appellee K. K. Kight, who was formerly doing business as Malvern-Hot Springs Transportation Company, for the sum of $1,141.65, representing an assessment of an amount equal to the insurance premiums which had been earned and paid under certain policies of liability insurance, for $10,000 for each person, $20,000 for each accident, and property damage liability of $5,000 for each accident on two 1935 International passenger busses, the said insurance policies having been issued by a general agent, Willis V. Lewis, at Little Rock, Arkansas, on behalf of the Allied Underwriters.
The suit was predicated upon a judgment rendered for the said amount against the appellee in the 126th District Court of Travis County, Texas, on February 16, 1949, in a class suit filed by the receiver against certain policyholders of Allied Underwriters in the State of Texas who had signed subscribers' agreements and had become members of the Allied Underwriters. The suit also sought to obtain a judgment, and which was accordingly rendered, against a number of nonresidents of the State of Texas, including the appellee K. K. Kight of Malvern, Arkansas, and which said nonresidents were not sued by name in the class suit in Travis County, Texas, and against whom no process was had except by mailing the same to them at their respective places of residence.
There was attached to the declaration as an exhibit thereto a subscribers' agreement to which the name of the appellee had been subscribed by someone without his knowledge or consent, according to his testimony. He testified that the signature was not his own; that he did not write his name that way, and to substantiate his contention he produced his driver's license containing his genuine signature and wrote his name on a sheet of paper six times for the inspection of the jury. No one disputed his testimony that he did not sign the subscribers' agreement. The declaration alleged that 'he, and all other subscribers of said exchange, under the terms of their applications and agreements, reciprocally engaged themselves to idemnify each other and one another against losses and hazards described in the policy or policies issued to him and to them.'
It appears that a specimen policy had been approved by the Board of Insurance Commissioners of the State of Texas for use by Allied Underwriters in that state. That specimen policy did contain the provision that: 'SUBSCRIBERS HEREAT (ALLIED UNDERWRITERS) aRe individuals, partneRships And corporations which have each executed an agreement hereby made a part hereof, which vests in F. M. Moulton and E. F. Dardnne herein called 'Attorney', power to issue this policy for them, which is issued to the Subscriber named herein in exchange for, and in consideration of, indemnity extended by him to other subscribers.' The specimen policy then contained a provision limiting the liability of those signing the subscribers' agreement and becoming members in Allied Underwriters to the additional amount of the premium earned and paid on their policies, and which additional liability was to secure the payment of the claims of all policyholders in the event of the insolvency of the said reciprocal insurance exchange. It is undisputed that the Allied Underwriters became insolvent on December 31, 1940, and was still insolvent on August 17, 1943, at which later date the affairs thereof were taken over by the receiver.
The judgment rendered against the appellee by the 12th District Court of Travis County, Texas, in assessing him with the sum herein sued for was on February 16, 1949. It is contended by the appellant that this case is controlled by the statutes and decisions of the courts of Texas, where the Allied Underwriters was incorporated and domiciled, whereas it is contended by the appellee that since he applied for insurance on his three busses with a local agent, K. L. Harris of Malvern, Arkansas, and that the policies were issued by Willis V. Lewis, the General State Agent in Arkansas of the Allied Underwriters, the premiums paid in Arkansas where the appellee resided, that the case is governed by the laws of the State of Arkansas, and that this suit became barred five years after February 16, 1949, before the suit was filed on August 12, 1954. But in view of the conclusions that we have reached on other grounds, we pretermit any decision as to whether the five-year statute of limitation of the State of Arkansas or that of the forum, applies. Ark.Stats. Sec. 37-213.
We predicate our decision in this case upon the sole question of whether or not the Full...
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