The Piedmont and Arlington Life Insurance Co. v. Tresy Ray et al., 50 Tex. 511

Moore, Chief Justice. If it appears on the face of the petition that the subject-matter of the suit is not within the jurisdiction of the District Court, the defect in the petition maybe taken advantage of by general demurrer. But when the objection to jurisdiction is not for want of power in the court to hear and determine the subject-matter of the suit, but want of proper service because defendant is entitled to be sued in some other county, unless the defendant pleads to the jurisdiction of the court, or specially excepts to the petition, the objection is waived. 2.

If the objection to the jurisdiction is because of the privilege of defendant of being sued in some other court than that in which the action is brought, or because there has been no sufficient service to require defendant to answer, it is a familiar principle that an answer to the merits gives jurisdiction of the person, and is a waiver of the privilege of being sued elsewhere. 8.

The third error assigned by appellant is, that the policy upon which the suit was brought should not have been admitted in evidence, because plaintiff did not prove that there was any such company incorporated in the State of Virginia as the Piedmont and Arlington Life Insurance Company, by producing the special act of incorporation passed by the Legislature of said State, if any such act ever existed. In answer to this assignment, it is sufficient to say that it is not warranted by the record. Bo such objection was made to the introduction in evidence of the policy as that suggested in the assignment.

The only objection taken to the introduction of the policy, or at least the only one shown by the record, is that said policy “ was not authenticated.as required by law to admit the same in evidence.” As the point ruled by the court has not been assigned as error or discussed by counsel, we need not notice it. 4. The fourth, fifth, sixth, and seventh assignments relate to issues of fact raised by appellant’s answer denying the execution of the contract of assurance set up in plaintiff’s petition.

We see nothing in the record, in respect to any of the matters referred to in these assignments, of which appellant can complain, or which would warrant a reversal of the judgment. Concede that appellant forbade its agents to accept drafts or bills in payment of premiums for their policies: the want of authority of the agent to receive payment in this way, might be waived and such payment acquiesced in and accepted by the company. There was, unquestionably, evidence tending to prove that such was the fact in respect to this policy.

If so, the payment was just as valid and effectual as if it had been made in cash. 8. The eighth assignment is, in our opinion, well taken. The judgment in appellee’s favor for the sum of $319.58 as reasonable attorney’s fees, is unwarranted and cannot be sustained. The loss on account of which this suit was brought, had occurred long before the enactment of the law allowing a recovery of reasonable attorney’s fees in suits against life insurance companies incorporated out of this State.

It is a well-settled rule that statutes are always held to operate prospectively, unless a contrary construction is evidently required by their plain and unequivocal language.

The law relied upon to support this judgment reads as follows: “The several insurance companies, and those incorporated out of this State, in all cases where a loss occurs, and when they refuse to pay within the time specified in the policy, shall be liable to pay the holder of said policy, in addition to the loss, not more than twelve per cent, on the liability of said company for said loss; also all reasonable attorney’s fees for the prosecution of the case against said company.” Certainly the language here used seems much more appropriately to apply to losses to occur after the passage of the law, than to such as had previously occurred, though they were still unpaid; but if it plainly appears that the Legislature intended it to apply to all cases, without reference to the date of loss, we should feel constrained to hold that effect could not be given to this intention in this case.

To do so would, in our opinion, violate the obligation of the contract, and also be in direct conflict with the provision of our State Constitution prohibiting the enactment of retrospective laws. Whether like constitutional objections will prevent a judgment for attorney’s fees where the loss occurs after the enactment of the law, on a policy issued prior thereto, we are not now called upon to determine. 9. If the minor plaintiffs were necessary parties to this suit, the judgment would have to be reversed.

In earlier times there seems to have prevailed rather technical and subtle distinctions in courts of law, as well as of equity, in respect to the prosecuting and defending of suits and actions by infants. At law, an infant having a guardian might sue by his guardian or next friend, though in practice it is said he generally sues by his next friend, but in all cases he must defend by his guardian. (1 Black., 464; 2 Inst, 261; 2 Saund., 117f.) In equity, the practice seems to be for infants in all cases to sue by their next friend, although they have a guardian, but they may defend by their guardian. (Danl. Ch.

Pr., 94, and notes; Story’s Eq. Pl., sec. 58, and note 3.) While the authority of his next friend to sue for an infant is said to be derived from statutes passed in the time of Edward I, (Story’s Eq. Pl., sec. 58, note 3,) they were certainly permitted to sue in this way in this State previous to the enactment of the probate law of 1870, and possibly since, though there is no statute expressly authorizing it, unless this is impliedly done by the authority given the court to appoint special guardians ad litem for infant parties.

After all, it seems of little moment whether the party by whom the infant sues is called by the one name or the other, if the authority to represent the infant is recognized by the court; for it is said on high authority that guardians and prochein amy are sometimes named in the books one for the other. (Id.) But though the name by which the representative of the infant may be designated may not be very material, before he can bind the infant, or before judgment should be rendered in his favor, if objection be made, he must, we think, take the oath and give the bond required of special guardians by the statute; and for this reason, if in this case the infants were necessary parties, the judgment would have to be reversed and the cause remanded.

By the terms of the policy the whole amount of loss is payable to Mrs. Ray, one-half in her own right and the other ■half in trust for the children of herself and her deceased husband. The policy, by its terms, is “ for the sole use of his (Gabriel A. Ray’

s) wife Treasy Ray and his surviving children, wife to become guardian without giving bond or security.” Certainly this clause in the policy does not make Mrs. Bay the guardian; but it plainly shows, as we think, the intention of the parties to the contract, that the entire amount for which the policy calls, was to be paid to her. The object and purpose of the stipulation, so far as concerns appellant, were that it might be authorized to settle the loss at once with Mrs. Bay, and not be embarrassed in doing so by reason of the interest of the children, for whom no guardian might have been appointed.

If the assured chose to insure his life for the benefit of his children, coupled with the condition that the policy should be payable to their mother in trust for them, he certainly had the right to do so.’ The judgment, in our opinion, in effect accomplishes the purpose of the policy. The mere technical difference in her recovery as the next friend of her minor children, instead of in trust for them, is not of such moment as to require a remand of the case. But for the error of the court in allowing attorney’s fees, the judgment must be reversed and reformed. And it is so ordered. Beversed and reformed.