Statement of the Case.
Russell and Borrum, owners of certain cattle situate in Brewster and Térrell counties, Tex., shipped them over, appellant’s and its connecting lines of railway to points in Oklahoma. Appellee insurance company insured them to said owners against the hazards of transportation, with the agreement that upon the payment to them of the losses for which plaintiff became liable under the terms of its policies the said owners’ claims against the carriers should be transferred to and assigned to appellee, and that it should be subrogated to all their rights in the premises. Losses were sustained. Appellee paid said losses, and the owners transferred their claims against the carriers to appellee in accordance with their contract. This action was brought by the insurance company against the initial carrier alone to recover the damages growing out of the shipment.
Defendant answered first by plea in abatement: (a) That the appellee is a foreign corporation chartered under the laws of Connecticut, and it has no power under its charter to make such contracts as form the basis of this suit; (b) no permit to do business in this state under its laws; (c) 'and no authority to prosecute its suit.
“Appellant also pleaded specially that each shipment of cattle was carried under a written contract exempting appellant and each carrierPage 783from all liability except for negligence of tbe carriers and their employés, and for all damage due to the inherent vices or weakness of the cattle or the improper mixing, crowding, or overloading of the cattle, and it was alleged that caretakers accompanied each shipment of cattle under the contracts, in which they were bound to look after and care for the cattle in transit. It was also alleged, in substance,' that the cattle were too poor and weak to withstand the shipment, and it was negligence to ship them in the first instance, and plaintiff assumed the risk of the loss and damage. Also that they were improperly loaded, overloaded, and mixed in the cars, and because of their poverty and weakness and viciousness they injured themselves and one another, and got down and were trampled on, and the caretakers neglected to properly look after them and keep them, as was their' duty to do, and it was expressly alleged that the loss and damage was all due to the inherent vices and poverty of the cattle and the negligent manner in which they were mixed in loading, and to the negligence of the caretakers during transportation, and to the negligence of the shippers in shipping cattle in such condition, in the first instance, or the said negligence of the shippers and caretakers at least contributed to the loss and damage. All of which defenses were set out at length and in detail in the answer, concluding with a brief review of same.”
Appellee filed exceptions to the plea in abatement, and they were by the court sustained. Tried to jury, and resulted in a verdict and judgment for appellee for $10,257, from which appeal is perfected.
Opinion.
By the first two assignments and propositions appellant raises the following questions, based upon its plea in abatement:
“(a) Appellee had no power or authority under its charter to make contracts such as form the basis of this suit.
“(b) That it had no power or authority from any source to acquire and prosecute such causes of action as it has asserted in this suit.
“(c) That it had no power or authority under its permit to do business in Texas to make contracts such as form the basis of this suit, or to acquire and prosecute claims such as are sued on in this case.
“(d) That it had no authority under the law of this state to make contracts such as form the basis of this suit, and no authority to acquire and prosecute such causes of action as it asserts in this case.”
First proposition is, stated in our own words:
Since the truth of the matters contained in the plea in abatement did not appear upon the face of the record so as to enable the court to decide the questions raised as a matter of law, it was error to sustain the exceptions to the plea.
The charter of plaintiff and its permit to do and carry on business in Texas having been introduced in evidence the action of the court in sustaining the exceptions to the plea prior to the introduction of the evidence was immaterial. Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; J. L. Collins Piano Co. v. Adams, 216 S. W. 420.
If the evidence adduced upon the issues raised establish plaintiff’s powers under its charter to make the contracts which form the basis of this suit, and that it had such a permit from the state of Texas to make the contracts by and through which it acquired the claims, or that the claim could be lawfully acquired and prosecuted in this state without permit, then it would follow that there was no error in sustaining the exceptions to the plea.
The foundation of this action lies within these questions: As to plaintiff’s charter powers, the evidence discloses that it is a foreign insurance corporation organized and chartered under and by virtue of the laws of the state of Connecticut, and its charter provides:
“That the Hartford Fire Insurance Company * * * is authorized to grant insurance against loss or damage which may be caused to all kinds of property by the elements, etc., * * * including fire, * * * ¿nd against the hazards of inland navigation and transportation.”
This suffices to authorize the company to write the insurance, as well as to acquire from the assured by the law of subrogation or by contract of purchase their claim against the carriers of the stock, and to prosecute the suit to recover against the carrier in the name of the assured or in its own name, unless prohibited from so' doing by some statute or rule of law of this state. Hall et al. v. Chattanooga Ry. Co., 80 U. S. (13 Wall.) 367, 20 L. Ed. 594; St. Louis, I. M. & So. Ry. Co. v. Commercial Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; Kangerga & Bro. v. Willard, 191 S. W. 195.
The next question is, Did the plaintiff insurance company have the required permit to do business in this state, to sue and be sued, as it is contended it did by appellee? The record shows the facts to be that the Commissioner of Insurance had issued a permit for the year ending February 28, 1917; that the next permit issued was dated June 25, 1917. The latter reads:
“This is to certify that the Hartford Fire Insurance Company of Hartford, Conn., having complied with all requirements of law relating thereto, is hereby authorized to pursue the business of fire, etc., * * * insurance within this state for the year ending February 28, 1918.”
It will be noted from this statement that between the dates February 28, 1917 (being the date of expiration of the one permit), and June 25, 1917, the plaintiff had no permit to pursue its business in Texas; in other words, in March, April, and May, 1917, within which months the evidence shows the policies to have been written, the loss to occur,
“No foreign or domestic insurance company shall transact any insurance business in this state other than the lending of money, unless it shall first procure from the commissioner of insurance and banking a certificate of authority, stating that the requirements of the laws of this state have been fully complied with by it, and authorizing it to do business in this state. Such certificate of authority shall expire on the last day of February in each year, and shall be renewed annually so long as the company shall continue to comply with the laws of the state, such renewals to be granted upon the same terms and considerations as the original certificate.” 1
It seems clear that there is nothing in the wording of this statute which could be construed into the meaning that any business done prior to the issuance of the certificate was or could be validated thereby. For its express provisions are that it shall not transact any other business except “lending of money, unless it shall first procure * * * a certificate of authority,” etc., and the statute terminated the permit February 28, 1918, no matter when written.
But it is urged by appellee that the. fact that it did not have the certificate required by this statute to transact the business of insurance companies, at the time it issued the policy and acquired the assured’s claim for damages, nevertheless it is not precluded thereby from maintaining this action, .for the reason that there is no inhibition in the statutes applicable to foreign insurance companies against its maintaining a suit upon any cause of action as proposed by appellant. Appellant’s proposition being that ap-pellee or plaintiff below, being a foreign corporation without authority to do any business in this state, it was not entitled to bring this suit, citing Rev. Civ. Stat. Vernon’s Sayles’ arts. 4900, 4960, and 49G4. Delaware Insurance Co. v. Security Co., 54 S. W. 916; Taber v. Association, 91 Tex. 94, 40 S. W. 954, etc.
The articles of the statute referred to are incorporated in title 71, chapters 9 and 15, and apply to insurance companies, but in no way prohibit the maintenance of a suit, but simply fix a penalty for pursuing the business of insurance companies without first obtaining permit. Article 4972, title 71, provides that the provisions of this title are conditions upon which foreign insurance companies shall be permitted to do business within the state.
The decisions cited apply only to foreign corporations other than insurance companies. As to such, article 1314, tit. 25, c. 26, Rl S., provides that they shall obtain a permit to transact business in the state, and article 1318, same title and chapter, provides that such corporations shall not maintain a suit * * * upon any demand * * * in the absence of complying with said statute, but article 1319, of the same title and chapter, provides that the provisions of this chapter shall not apply to insurance companies, so neither the statutes nor the decisions cited sustain the contention of appellant.
The twenty-fifth assignment urges that the court erred in refusing to give the peremptory instruction for defendant The proposition is that—
“Appellant was entitled to an instructed verdict because it appears from the certified copy of appellee’s charter and permit to do business in Texas that as a matter of law it had no power or authority to make the contract of insurance in question or to acquire the claim sued on in Texas. The said insurance contracts and claims were made and acquired in violation of the civil and penal statutes of this state, and they are ultra vires and void, and ought not to be enforced against appellant.”
This proposition is well taken. As noted above at the time the insurance was written which was the basis for the acquisition of the claims sued Upon, the appellee had no permit to do business of any kind in this state other than lending money, and by its acts of so writing this insurance and through such insurance contracts acquiring the claims sued upon without first obtaining such permit it violated the provisions of article 4761, above quoted, articles 4900, 4972, Rev. Civ. Statutes, of this state, and was subject to the penalty therein prescribed. The courts will not lend their support to a claim founded upon the violation of express law. Oscanyon v. Arms Co., 103 U. S. 261, 26 L. Ed. 539; Republic Trust Co. v. Taylor, 184 S. W. 772; Bishop v. Japhet, 171 S. W. 499.
Many other assignments of error are presented in the brief of appellant, predicated upon the admission and exclusion of evidence, erroneous charges given, and charging error in refusing to submit special charges. They have been reviewed, and we are of the opinion that they are without merit.
For the reason that the claims which form the basis of this cause of action were acquired in violation of law, the cause is reversed, and here rendered for appellant. •