Wheeler v. Metteauer

• Decision Date: 28 July 1955
• Docket Number: No. 12842,12842
• Citation: 283 S.W.2d 95
• Court: Texas Court of Appeals
• Parties: J. D. WHEELER, Receiver, Appellant, v. E. Lynn METTEAUER et al., Appellees.

Page 95

283 S.W.2d 95

J. D. WHEELER, Receiver, Appellant, v. E. Lynn METTEAUER et al., Appellees.

No. 12842.

Court of Civil Appeals of Texas, Galveston.

July 28, 1955.

Rehearing Denied Oct. 27, 1955.

F. L. Kuykendall, Austin, for appellant.

Dies, Anderson & Dies and Martin Dies, Jr., Lufkin, for appellees.

CODY, Justice.

This is an appeal from the order of the 133rd District Court, the Honorable Wilmer B. Hunt presiding, overruling defendant's plea of privilege and pleas of jurisdiction. The plaintiffs in this suit were E. Lynn Metteauer, the Deep East Texas Finance Company, and Lynn Motors Company, Inc., the said plaintiff E. Lynn Metteauer being the president of said two corporations. The defendant was J. D. Wheeler, receiver of the Commercial Security Insurance Company by virtue of the judgment of the 53rd Judicial District Court of Travis County rendered on August 4, 1954, whereby the said insurance company's charter was cancelled and the said Wheeler appointed liquidator and conservator of said insurance company as well as receiver.

The plaintiffs filed their said suit on October 12, 1954.

The different plaintiffs urge somewhat different causes of action, and we deem it necessary to give a sufficient review of the pleadings to indicate these different positions and claims of the different plaintiffs.

According to plaintiffs' allegations, on May 2, 1952 plaintiff Metteauer was appointed the agent of Century Lloyds Insurance Company to issue policies for automobile insurance, and thereafter pursuant thereto wrote the policies which are listed in Exhibit 'A' attached to plaintiffs' petition. That as time went on, Century Lloyds became ever slower about paying the claims under its policies, and finally in 1954 completely stopped paying them. That plaintiff Metteauer urged Century Lloyds to transfer the policies he had written to a company that would pay off claims thereunder. That as a result of these negotiations it was agreed on April 23, 1954, that all policies written by said plaintiff should be transferred to Commercial Security Insurance Company. That pursuant thereto the Commercial Security Insurance Company executed and delivered to said plaintiff 'a Bordereaux which is a customary manner and means of one insurance company taking over and assuming the policies and business of another insurance company.' That it was thereupon understood that from said date the Commercial Security Insurance Company had been substituted as the insurer on the policies listed on the bordereaux, which policies were those also listed on Exhibit 'A'.

Plaintiffs then go on to allege the judgment of the 53rd Judicial District Court of Travis County, aforesaid, of August 4, 1954, which cancelled the charter of the Commercial Security Insurance Company and made the defendant receiver, liquidator and conservator of said company. Plaintiffs further allege that two days later said Wheeler executed a contract under and by means of which the Houston Fire and Casualty Insurance Company of Fort Worth assumed all the policies issued and executed by the Commercial Security Insurance Company.

Plaintiffs then go on to allege that the policies aforesaid which are shown on Exhibit 'A' and being those made the subject matter of the bordereaux aforesaid were cancelled or attempted to be cancelled by the receiver, which happened after April 23, 1954, the date of the issuance of the Bordereaux, and prior to the assumption by the Houston Fire and Casualty Insurance Company on August 6, 1954, and then to quote direct from plaintiffs' petition, plaintiffs allege 'because of the cancellation of those policies plaintiff E. Lynn Metteauer was forced to and did expend his own money to either reimburse the policyholders for unearned premiums due or to purchase for them insurance in another company.'

Said plaintiff alleged that all total amount of the unearned premiums owing on each of the policies which he had paid out and which he was entitled to recover amounted to $6,769.04.

Plaintiffs further allege that between April 23, 1954, the date of the issuance of the bordereaux, and August 6, 1954, the date of the assumption by the Houston Fire and Casualty Insurance Company, plaintiff Deep East Texas Finance Company had two total losses on automobiles financed by it and shown on Exhibit 'B'. That these two automobiles were insured with the Commercial Security Insurance Company, and the receiver has refused to pay same to the said corporate plaintiffs' damages in the sum of $1,362.75.

Plaintiffs further allege that during the same period policyholders listed on Exhibit 'C' had losses shown thereon totaling $604.86.

Defendant pled that the District Court of Harris County did not have jurisdiction and additionally filed its plea of privilege. The further material allegations of defendant's answer will be referred to under the appropriate points urged by defendant. The defendant's plea of privilege was in the usual form, and additionally alleged the judgment of the District Court of Travis County, which appointed him as receiver, liquidator and conservator, and cancelled the charter of the Commercial Security Insurance Company.

Plaintiffs' controverting affidavit alleged that the principal place of business of the Commercial Security Insurance Company as shown by its charter was in Houston, Harris County, Texas, and that its books and so forth were there located, and relied upon the aforesaid District Court of Harris County having venue and jurisdiction on Article 2311, V. A.T.S., reading as follows: 'Actions may be brought against the receiver of the property of any person where said person resides; and against receivers of a corporation in the county where the principal office of said corporation may be located, and against receivers of railroad companies in any county through or into which the road is constructed. * * *' And the controverting affidavit stated that said facts were as set forth in plaintiffs' original petition.

The defendant predicates its appeal upon five points.

Defendant's first point is that since the pleadings and evidence failed to allege or show a cause of action in favor of the plaintiffs against the receiver, the trial court erred in overruling defendant's plea of privilege.

We sustain defendant's first point so far as the plaintiff Metteauer is concerned and overrule the same so far as the two corporate plaintiffs are concerned.

It is well settled that in order to overcome the plea of privilege in statutory form, plaintiff must make out a case against the defendant as one of the facts necessary to be established to confer venue in the county where the suit is pending. Taylor v. Whitehead, Tex.Civ.App., 88 S.W.2d 716; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 and Ray v. W. W. Kimball Co., Tex.Civ.App., 207 S.W. 351; 43-b Tex.Jur. 391, Sec. 158.

The Supreme Court held in Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 67, '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.' The plaintiff Metteauer was under no legal obligation to repay to the policyholders the unearned portions of the premiums on their policies of insurance. Whether this was commendable or laudable or the meeting of a point of honor, is not the question. He was not legally liable to make said payments, and in doing so, he was a volunteer. It is hardly necessary to cite authority to support the proposition that a person who voluntarily makes payments which he is under no legal obligation to make and which he is not required to make in order to protect his legal rights has no cause of action thereon. See Stone v. Tilley, 100 Tex. 487, 101 S.W. 201, 10 L.R.A.,N.S., 678, and Burkhardt v. Lieberman, 138 Tex. 409, 159...