Wilson v. Marshall
| Citation | 218 S.W.2d 345 |
| Decision Date | 26 January 1949 |
| Docket Number | No. 11904.,11904. |
| Parties | WILSON v. MARSHALL. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Twenty-eighth District Nueces County; A. J. Pope, Jr., Judge.
Suit by Herbert Marshall, receiver and trustee of the National Indemnity Underwriters of America, against Sam E. Wilson, Jr., to recover the amount of an assessment made against defendant as a subscriber to the National Indemnity Underwriters of America. From a judgment for the plaintiff, the defendant appeals.
Judgment affirmed.
Tarlton, Ogden & Hale, of Corpus Christi, for appellant.
Marion B. Solomon, of Dallas, for appellee.
Sam E. Wilson, Jr., has appealed from a judgment for $4,387.44, rendered against him and in favor of appellee, Herbert Marshall (successor to Keith Kelly), as Receiver and Trustee of National Indemnity Underwriters of America (NIU), a reciprocal or interinsurance exchange organized in accordance with the provisions of Articles 5024-5033, Vernon's Ann.Civ.Stats.
Appellee's suit was filed on May 11, 1945, and is based upon Wilson's liability for an assessment as a subscriber to the NIU. This liability was determined in Cause No. 63621 on the docket of the District Court of Travis County, 98th Judicial District of Texas, styled Keith Kelly, Receiver, v. Nick Linz et al.
The judgment rendered in said cause No. 63621 was sustained as a valid decree entered in a proper class suit. Richardson v. Kelly, 144 Tex. 497, 191 S.W.2d 857, affirming Richardson v. Kelly, Tex.Civ.App., 179 S.W.2d 991.
In the case cited the financial and legal history of the NIU is set out and need not here be repeated in detail. The exchange became insolvent and it was adjudged that the receiver should recover from each defendant an amount of money equal to a full annual premium on each policy during the insolvency period and that the judgment should bind all subscribers because they "constitute a class whose rights * * * are fairly and truly represented herein by the named defendants appearing and answering." [144 Tex. 497, 191 S.W.2d 859]
Wilson interposed a plea of res judicata to the receiver's claim based upon the judgment rendered in said cause No. 63621, contending that on April 15, 1940, Kelly as receiver had brought suit against him in the District Court of Tarrant County, 17th Judicial District of Texas, and that said suit bearing Cause No. 28420-A had been settled and dismissed with prejudice.
The demand asserted by the receiver in Cause No. 28420-A was for premiums charged in the sum of $1,565.16, alleged to be due and owing upon a workmen's compensation policy and a public liability policy which Wilson had with the NIU. Wilson paid $300 to the receiver in settlement of the suit and the same was dismissed with prejudice on July 19, 1940. At the time this dismissal took place, the liability of the subscribers at the exchange for the assessment involved in the present suit had not been fixed and determined. The judgment in Cause No. 63621, Kelly v. Linz was not rendered until March 8, 1941.
The trial court concluded as a matter of law that the cause of action asserted in the present suit "is separate...
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...company cooperatively owned by those it insures. See Kiepfer v. Beller, 944 F.2d 1213, 1216 (5th Cir.1991); Wilson v. Marshall, 218 S.W.2d 345, 346 (Tex.Civ.App.1949). Through such an entity, members "undertake to indemnify each other against certain kinds of losses by means of a mutual exc......
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