United Mut. Fire Ins. Co. v. Talley , 211 S.W. 653 ( 1919 )

This writ of error was sued out from a default judgment rendered in favor of defendant in error against plaintiff in error, upon a certain fire insurance policy. The grounds relied upon for a reversal are substantially that the plaintiff's petition was subject to general demurrer and insufficient to support a judgment by default, and that there was no legal service.

It is claimed that the petition was fatally defective because it did not allege that the property insured was destroyed by fire. The record discloses that plaintiff alleged the issuance to him by defendant for a valuable consideration of an insurance policy, insuring his household furniture and goods in the sum of $400. The allegations with regard to the fire are contained in the following paragraph:

"Plaintiff further alleges that on or about the 12th day of January, 1917, the dwelling in which said household goods and furniture was located was totally destroyed by fire, and that the loss thereon was in the full sum of $400; that within 24 hours thereafter plaintiff furnished to defendant proof of loss on said furniture and household effects, as aforesaid, and made demand upon defendant for the payment of said sum of money under said policy, and defendant promised and agreed to pay same; that from said time and up to the time of the institution of this suit defendant had led plaintiff to believe that they would in a few days pay said policy; that they have failed and refused to pay same, or any part thereof, to plaintiff's damage in the sum of $650."

As against a general demurrer, we regard the averments of the petition as sufficient to show a claim of destruction by fire of the household goods and furniture covered by the policy. The petition must be considered as a whole as against the objection urged; and, when so viewed and every reasonable intendment allowed, we think it states a good cause of action. Therefore the first assignment is overruled.

It is next urged that the court erred in rendering judgment for defendant in error, because it was not alleged in the petition that plaintiff in error was a corporation or joint-stock association, and that no service was shown to have been had upon it except through an agent, which is only authorized where the defendant is a corporation. The statute authorizes service upon either a corporation or joint-stock association by delivery to the local agent representing the company in person a true copy of the writ of citation. The allegation in the petition as to the corporate character or capacity of plaintiff in error was that it was "a mutual chartered company doing business in the state of Texas, with its general office in Houston, Texas." The sheriff's return on the citation was as follows:

"Came to hand on the 15th day of May, A.D. 1917, and executed on the 18th day of May, A.D. 1917, by delivering to P. A. Goodall, local agent representing the United Mutual Fire Insurance Company of Houston, Texas., in Waco, McLennan county, Texas, the within named defendant in person, a true copy of this writ."

We regard the allegation above quoted as being equivalent to an averment that plaintiff in error was a domestic corporation, or incorporated company, at least in the absence of a special exception. The words "mutual chartered company," in their ordinary signification, import the meaning of an incorporated company, having a charter and invested with rights and privileges as a corporation under legislative act. Under our laws, we perceive no other meaning that could be attributed to the phrase; and, as against a general demurrer, we think was sufficient allegation of the corporate status of plaintiff in error. The judgment was against it as a corporation, and it is not contended that it is not such in law. Regarding this assignment as without merit, it is likewise overruled.

The only other question remaining is the claim that the court erred in rendering judgment for defendant in error, because the return of the citation shows upon its face that no service was had upon plaintiff in error, as required by law; the service being upon P. A. Goodall, individually. The return in this case shows a delivery in person to the agent of plaintiff in error of a true copy of the citation. The agent was the same person named in the petition and in the citation, and the return is in substantial compliance with the statutes. It is, of course, impossible to follow the literal directions of the statute, to deliver in person to a corporation a copy of the writ, but the statute prescribes that service may be had upon an incorporated company or jointstock association by serving the citation upon the local agent representing such company in the county in which the suit is brought. The requirement that a true copy of the writ of citation must be delivered to the defendant is met by delivery in person to such local agent, who represents the corporation. Therefore we overrule the last assignment. In support of this holding, we cite the following: Railway Co. v. Burke,55 Tex. 329, 40 Am.Rep. 808; Railway Co. v. Scoggin, 57 Tex. Civ. App. 349,123 S.W. 229; Delaware Ins. Co. v. Hutto, 159 S.W. 73.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.