McCormick v. Vernon Butler Chevrolet Co., 7522
Decision Date | 08 October 1963 |
Docket Number | No. 7522,7522 |
Citation | 372 S.W.2d 757 |
Parties | George McCORMICK, d/b/a McCormick Insurance Agency, Appellant, v. VERNON BUTLER CHEVROLET COMPANY, Inc., Appellee. |
Court | Texas Court of Appeals |
Witts & Ewing, Dallas, Long, Strong, Jackson & Strong, Carthage, for appellant.
Law Office of Tom Bankhead, Carthage, for appellee.
This is a venue case. Appellee motor company sued R. S. Crawford and George McCormick, d/b/a McCormick Insurance Agency in the District Court of Panola County, Texas, on an account for repairs made by appellee on the automobile of Crawford, and appellee sought a joint and several monetary judgment against Crawford and McCormick and also sought a foreclosure of a mechanic's lien against the automobile in the possession of Crawford. McCormick filed a plea of privilege to be sued in Dallas County, Texas, the county of his residence. Plaintiff-appellee filed his controverting plea asserting venue to be in Panola County, Texas, under exceptions 5 and 29a of the venue statute, Vernon's Ann.Civ.St. art. 1995. The trial court overruled McCormick's plea of privilege and he has appealed.
Crawford signed an instrument in writing agreeing to pay appellee for the repairs in Panola County, Texas, and venue as to Crawford was proper in Panola County, Texas, under exception 5 of the venue statute. However McCormick did not execute any contract in writing agreeing to pay in Panola County, Texas, so it is clear that McCormick can not be held in Panola County under exception 5.
Appellee contends that McCormick is a necessary party to the suit and that venue is maintainable in Panola County against McCormick under exception 29a.
As we understand plaintiff-appellee's pleading and proof, it seeks to recover judgment against McCormick, the insurance agent of Crawford, not on any written contract of McCormick, but on the written contract of Crawford, and the oral contract or oral representations of McCormick to the effect that McCormick authorized the repairs in question and agreed that he and the insurance company he represented which carried Crawford's insurance would pay for such repairs and that McCormick orally assured appellee that the insurance company check for the repairs would be issued in the name of appelee, and that contrary to such assurance, the insurance company check was made payable to Crawford who refused to deliver same to appellee but converted same to his, Crawford's benefit. The record reveals that a controversy arose between appellee and Crawford as to whether the repairs were properly made and as to whether appellee's charges were excessive.
Under our venue statutes it must be clearly shown that the case comes within some well-defined statutory exception before one may be deprived of his right to defend a suit against him in the county of his residence. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107.
The party relying upon exception 29a to hold venue in a county other than the county of the residence of a defendant asserting his statutory privilege must plead and prove that such a defendant is a necessary party to the action. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758; Clark, Venue in Civil Cases, ch. 29a Sec. 6; McDonald, Texas Civil Practice, Sec. 4.36.
In Ladner v. Reliance Corporation, supra, it was stated in part as follows:
Another statement pertinent to exception 29a is found in McDonald, Texas Civil Practice, 1962 Cumulative Supplement, p. 146, which text cites Andretta v. West, Tex.Civ.App., 318 S.W.2d 768, wr. ref., n. r. e., as follows:
'Another statement of the requirement (where A is the defendant as to whom venue in the county is established and B the defendant pressing a plea of privilege) is that there 'must be pleadings and proff of (1) a joint cause of action' against A and B 'in which B 'must necessarily be joined in order for' plaintiff 'to secure the full relief to which he might be entitled in the suit against' A; 'or (2) that' B has 'an interest in the suit which could be affected by any decree completely adjudicating the rights of' plaintiff and A; 'or (3) that no effectual decree could be rendered without joining' A and B.'
In York Supply Company v. Dunigan Tool & Supply Co., Tex.Civ.App., 276 S.W.2d 317, it was stated in part as follows:
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