Indiana & Ohio Live Stock Ins. Co. v. Krenek , 1911 Tex. App. LEXIS 1163 ( 1911 )

KEY, C. J.

Thi» is a suit instituted in the county court of Lee county upon a written contract, insuring the life of a certain horse. At the trial plaintiff recovered a judgment, and defendant has appealed.

We sustain the third assignment, which complains of the action of the trial court in overruling the defendant’s plea of privilege to be sued in another county. The plaintiff alleged in his petition that he was a resident of Lee county; that the defendant was a nonresident corporation, doing business in Texas, “with J. W. Blanton its agent and attorney for service of process, who resides at Gainesville, Cook county, Tex.” It was also alleged in the petition that the horse died, and the plaintiff’s loss was sustained in Wharton county, Tex. In due time and order the defendant, in due form, filed its plea of privilege, contesting the' right of the county court of Lee county to exercise jurisdiction, and averring “that the defendant was not at the time of the institution of this suit a resident of Lee county, Tex., nor at the time of service of process herein was it a resident of Lee county, .Tex.; that the residence of the general agent of the Indiana & Ohio Live Stock Insurance Company in Texas is at Gainesville, Tex., and that the principal office of the said defendant in Texas is in Gainesville, Cook county, Tex., and that said general agent is J. W. Blanton, whose residence is in Gainesville, in. Cook county, Tex., and that none of the exceptions to exclusive venue mentioned in article 1194 or article 1585 of the Revised Statutes of Texas exist in said cause, so as to give jurisdiction of said cause to the said county court of Lee county, Tex.” The plea referred to, which was verified by affidavit, was presented to and overruled by the trial court. Yenue of suits in district and county courts of this state, is regulated by article 1194 of the Revised Statutes, and the twenty-fifth subdivision of that article fixes venue for suits against foreign corporations “in any county 'where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated, or, when the defendant corporation has no agent or representative in the state, then in the county where the plaintiffs or either of them reside.”

Counsel for appellee contends that the statute just quoted is modified and controlled by article 3070 of the Revised Statutes, which prescribes that “suits may be instituted and prosecuted against any life or health insurance company in any county where the loss has occurred, or where the policy holder instituting such suit resides.” The term “life insurance company” is defined as follows by article 3096a of the Revised Statutes : _ “A life insurance company shall be deemed to be a corporation doing business under any charter involving the payment of money or other thing of value to families or representatives of policy holders, conditioned upon the continuance or cessation of human life, or involving an insurance guaranty contract or pledge for the payment of endowments or annuities.” If this latter statute had not been enacted, we should feel strongly inclined to, and probably Would, hold that the language, “any life or health insurance company,” used in article 3070, had reference and was limited to insurance of the life or health of a human being. But, in view of the language just quoted from article 3096a, we think it is manifest that article 3070 was not intended to include suits brought upon any contract of insurance when the subject-matter of the contract was property, and not a human being. Hence we conclude that article 3070 did not authorize the institution of this suit in Lee county, and that the trial court erred, in not sustaining the plea of privilege, and transferring the case to either Wharton or Cook county.' By the act of 1907 (Acts 1907, c. 133, p. 248), which is incorporated in Sayles’ Supplemental Statutes as articles 1194a, 1194b, and 1194c, it is wisely provided that whenever a plea of privilege to be sued in some other county is sustained, the court shall order the venue changed to the proper court of the county having jurisdiction of the parties and the cause, and we hold that the trial court should have pursued that course in this case. The suit should have been instituted in either Cook county or the county where the loss was sustained, and the court below will have the power, and it will be its duty, to determine to which county it shall be transferred, and to make the necessary order transferring it to the county court of that county.

In view of the disposition here made of the case, we do not feel called upon, and hardly deem it proper, to pass upon the other questions presented in appellant’s brief any further than it has been necessary to do so in deciding the question of venue.

For the error pointed out, the judgment is reversed and the cause remanded, with instructions to the trial court to sustain the defendant’s plea of privilege, and make an ordpr transferring the case to the county court of Cook county, or of the county where the loss was sustained.

Reversed, with instructions.