(concurring).
I concur, with great reluctance, in the disposition of this case. I do so because I feel bound by the prior opinions of our Supreme Court, but in so doing, I point out this self-evident fact: The affirm'ance is required solely because Hanover is a foreign corporation. If it were a domestic corporation, the judgment below would be reversed. In my opinion, this is an obnoxious and discriminatory result, and one which should be called to the attention of the Legislature.
If Hanover were incorporated in Texas, instead of New Jersey, plaintiffs would have been required under Exception 23, Article 1995 to have proved cause of action as a prerequisite to the maintenance of venue in Hardin County. For a discussion of many of the cases so holding, see Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694, 698 (Tyler Tex.Civ.App., 1965, no writ). The statutory requirement that a cause of action be proved on the venue hearing was made a part of Exception 23 by the 1943 amendment to the section. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948), conformed to in East Texas Motor Freight Line v. Jackson, 216 S.W.2d 686 (Texarkana Tex.Civ.App., 1948, no writ). See also, 18 Southwestern Law Journal 291, 298-299 (1964). No comparable amendment was made to Exception 27 relating to foreign corporations* Thus, there is no requirement that a plaintiff suing a foreign corporation prove a cause of action to maintain venue under Exception 27. Andretta v. West, 318 S.W.2d 768, 771 (Texarkana Tex.Civ.App., 1958, error ref. n. r. e.); Pacific Finance Corporation v. Ramsey, 305 S.W.2d 297, 299 (Waco Tex.Civ.App., 1957, no writ); Southwestern Greyhound Lines v. Day, 238 S.W.2d 258 (Eastland Tex.Civ.App., 1951, no writ).
Our Supreme Court has upheld the constitutionality of this statute notwithstanding the obviously discriminatory aspect thereof. Commercial Ins. Co. of Newark, N. J. v. Adams, 369 S.W.2d 927 (Tex.Sup., 1963), overruling this court in Fireman’s Fund Insurance Co. v. McDaniel, 327 S.W.2d 358 (Beaumont Tex.Civ.App., 1959, no writ). The Court of Civil Appeals opinion underlying Adams, supra, is reported in 366 S.W.2d 801 (Houston Tex.Civ.App., 1963, error ref.), and an examination of that opinion shows clearly that there was no attempt made by the plaintiffs to prove a cause of action on the venue hearing.
The invidious and disparate result which we reach is pointed up by the fact structure underlying our appeal, to which I shall now turn. Suing upon the uninsured motorist clause in his own policy, the plaintiff named as defendants not only his own insurer, Hanover, but “John Doe, Uninsured and Unknown Motorist.”
*120Service of process upon Hanover was had by serving the Commissioner of Insurance, not the local recording agent whose residence in the county of suit is relied upon to maintain venue. No effort, insofar as this record discloses, has-been made to determine the identity of “John Doe”, his residence, insurance status, or otherwise. The allegations disclose that this was a “no contact” type of accident and plaintiff’s testimony is equivocal as to whether it was a “hit and run” occurrence.
I forego further discussion of the factual or legal basis, if any, of plaintiffs’ cause of action because we must remand this cause for further charades in the guise of judicial proceedings. But for the peculiar and odious differences between Exceptions 23 and 27 which I have mentioned earlier, we could meet and dispose of the basic issues of this cause at this time. Being unable so to do, I join my brethren in the affirmance, leaving to the trial court the duty of making the disposition of this cause which would otherwise be made here and now.
1 McDonald, Texas Civil Practice (Rev. Ed.) § 4.30.1, p. 514, says: “Exception 23 was rewritten in 1943. Prior to that date, the statutes made no distinction, so far as venue was concerned, between domestic and foreign corporations. The 1943 amendment, however, ignored exception 27, applicable to foreign private and public corporations, joint stock com-pañíes, and associations. Thus foreign corporations or associations having in Texas a principal office or an agent are subject to two venue exceptions, the provisions of which are not identical. The constitutionality of this diverse treatment, after contrary holdings, has now been established. [Footnote citations omitted.]”