Citations
- 321 S.W.2d 354
Full opinion text
ARCHER, Chief Justice.
This is an appeal from a judgment entered by the 53rd Judicial District Court of Travis County, Texas, sustaining certain pleas to the jurisdiction and in abatement filed by the appellee. Upon sustaining said pleas, the trial court dismissed the appeal of the appellant, filed under Article 5.26 of the Insurance Code, V.A.T.S., as amended, from an order of the appellee denying the written application of the appellant to renew a permitted deviation for a lesser rate than the maximum rate of insurance premiums promulgated by the appellee.
The appellant made application with the appellee, State Board of Insurance, for permission to write insurance on fire, extended coverage, and physical loss form on all classes of risks throughout the State for a period of one year commencing September 22, 1957, at a deviated rate of 20% less than the maximum rate prescribed by the State Board of Insurance. After notice and hearing the Board entered its order denying the application. Subsequently appellant filed this suit, which the District Court on pretrial hearing dismissed after sustaining defendant’s (appellee’s) pleas in abatement and to the jurisdiction.
The appeal is based on five points assigned as error and are to the effect that the court erred in holding that the appeal provisions of Article 5.26 of the Insurance Code, as amended, were unconstitutional; that if the said provisions are unconstitutional such are not severable and the balance of the Article is invalid; in sustaining the plea to the jurisdiction because the Board had not consented to be sued; and in refusing leave to appellant to amend.
We are confronted with a Motion to Dismiss this appeal for the reason that the subject matter of this suit is now moot and in support thereof appellee says:
“This suit was instituted in the 53rd District Court of Travis County as an appeal from an order of the State Board of Insurance denying appellant application to write insurance on all fire extended coverage and physical loss forms on all classes and locations in the State of Texas on the basis of a deviated rate of twenty (20%) per cent less than the maximum rate prescribed by the State Board of Insurance for the period' of one year commencing September 22, 1957. Since the period of time for which appellant sought to write insurance at a deviated rate has expired this cause of action has become moot. For this Court to now enter an order reversing or remanding the trial court would in no way correct any infringement upon the rights of the appellant or protect any of their substantial legal rights. Such an order would merely be an advisory opinion upon a purely academic matter.”
Paragraph II of Plaintiff’s Original Petition states:
“That pursuant to Article 5.26 of the Texas Insurance Code, Plaintiff made application to the State Board of Insurance for a deviated rate of twenty percent (20%) on all fire, extended coverage and physical loss form on all classes and locations in the State of Texas for the period of one year commencing September 22, 1957 and which application was for the same deviated rate which Plaintiff had been granted for the prior year.”
Appellant, in answer to the Motion to Dismiss, takes the position that:
“Since Appellant’s application to renew the deviated rate previously granted was filed in accordance with Article 5.26 of the Insurance Code as amended, and since said article specifically provides that the deviation permitted under this article shall be effective for a period of one (1) year from the final granting whether by the Board in the first instance or upon direction'of the court, and since under Section G of Article 5.26 of the Insurance Code as amended, the deviation shall remain in effect during the course of any appeal taken from such order of the Board, Appellant respectfully submits that the appeal of the Appellant has not become moot and that Appellee’s Motion to Dismiss should be overruled.”
It is our opinion that the cause is not moot and that appellee’s motion to dismiss the appeal on this ground should be denied.
While it is true that appellant’s application to deviate expressly states that it desires to deviate for a period of one year commencing September 22, 1957, it is also true that the application was filed pursuant to the provisions of Art. 5.26 of the Insurance Code the pertinent provisions of which we quote:
Art. 5.26 of the Insurance Code, Vol. 14, V.A.C.S., provides, in part, that (Sec.