Harrington v. North American Union Life Insurance Co.

FANNING, Justice. This is an appeal by Mary Sue Harrington and Nancy Kay Harrington from an order sustaining the plea of privilege of North American Union Life Insurance Company to be sued in Tom Green County, T exas. Mary Sue Harrington and Nancy Kay Harrington, residents of Gregg County Texas, sued W. S. Powers (who filed a plea of privilege to be sued in Harris County, Texas), together with North American Union Life Insurance Company, a corporation, and Texas Western Securities, Inc., a corporation, which defendant corporation also filed pleas of privilege to be sued in Tom Green County, Texas. Plaintiffs alleged that Powers, acting for his own benefit and as agent for the defendant corporations, had by certain fraudulent representations made in Gregg County, Texas, induced the plaintiffs to purchase 400 shares of stock of North American Union Life Insurance Company at $7 per share or a total of $2,800, when the stock in truth and in fact was worth less than $1 per share or approximately $1 per share. The plea of North American Union Life Insurance Company was seasonably filed and controverted on the ground that Powers, acting for his own benefit and as agent for the defendant corporation, had committed a fraud on the plaintiffs in Gregg County, Texas, within the meaning of Exception No. 7, Article 1995, Vernon’s Texas Civ.St. The plea of privilege of North American Union Life Insurance Company was sustained and Mary Sue Harrington and Nancy Kay Harrington have filed a separate appeal in this cause, No. 7022. We have this day affirmed in cause No. 7030, Powers v. Harrington, Tex.Civ.App., 308 S.W.2d 234, the judgment of the trial court overruling W. S. Powers’ plea of privilege to be sued in Harris County, Texas, and we have this day also affirmed in cause No. 7024, Texas Western Securities, Inc., v. Harrington, Tex.Civ.App., 308 S.W.2d 237, the judgment of the trial court in overruling the plea of privilege of Texas Western Securities, Inc., to be sued in Tom Green County, Texas. The judgment of the trial court in this cause, No. 7022, is also affirmed. Appellants’ first point reads as follows: “The Court should have overruled the plea of privilege of the appellee, North American Union Life Insurance Company, in keeping with subdivision 7 of Article 1995, providing for the venue of cases involving fraud to be tried in the county in which the fraud is committed.” In cause No. 7030 we held that the evidence was sufficient to show that Powers had committed a fraud against appellants in Gregg County, Texas, and affirmed the judgment of the trial court overruling Powers’ plea of privilege. We refer to that case for a statement of the case. In cause No. 7024 we supplemented the facts stated in the Powers case (No. 7030), and pointed out that Texas Western Securities, Inc., got the fruits of Powers’ fraud, with the checks in question being made payable to and were endorsed by Texas Western Securities, Inc., and pointed out other supplementary facts with reference to Texas Western Securities, Inc., and held that there was sufficient evidence of probative force in the record to support a finding by th.e trial court that Powers was an agent of Texas Western Securities, Inc., acting within the scope of his apparent authority when Powers committed a fraud upon ap-pellees in Gregg County, Texas, and we affirmed the judgment of the trial court overruling the plea of privilege of Texas Western Securities, Inc. We refer to this case for a more detailed explanation of the situation of the defendant Texas Western Securities, Inc. [583] Here we have, however, a different situation. We have carefully examined this record and have reached the opinion that under this record the trial court was amply justified in holding that the proof was insufficient to show that Powers was an agent of North American Union Life Insurance Company, acting within the scope of his authority or apparent authority for said Company. The checks in question were not made payable to North American Union Life Insurance Company nor did such Company endorse same. The undisputed evidence shows that Texas Western Securities, Inc., got the fruits of the fraud committed by Powers. There is no proof in the record that North American Union Life Insurance Company got the fruits of Powers’ fraud. Powers’ statement that he was an agent of said Insurance Company, and his presentation of his printed card was not competent evidence to prove that he was agent of the Insurance Company, and the trial court correctly excluded such evidence as against the Insurance Company. The issuance of the stock certificates in question by the Insurance Company which were mailed by Texas Western Securities, Inc., to appellees, do not establish that Powers was agent of the Insurance Company with authority or apparent authority to make the representations that he made to appellees. Also, none of the letters from the Insurance Company, either admitted or excluded from the evidence in the case, established that Powers was an agent of the Insurance Company with authority or apparent authority to bind the Insurance Company. We have carefully reviewed all the evidence both admitted and excluded, and all of the circumstances in the case and are of the opinion that there was no evidence of sufficient probative force in the record to show that Powers was an agent of North American Union Life Insurance Company, with authority to bind such Insurance Company, and especially is this true since the record does not show that such Insurance Company received the fruits of the fraud, as the undisputed evidence shows that Texas Western Securities, Inc., got the fruits of the fraud. Appellants’ remaining points are deemed to be without merit and are respectfully overruled. Finding no reversible error in the record, the judgment of the trial court is accordingly affirmed.