Slinker v. Superior Insurance Company, 17255
| Decision Date | 11 April 1969 |
| Docket Number | No. 17255,17255 |
| Citation | 440 S.W.2d 730 |
| Parties | Nathan SLINKER et al., Appellants, v. SUPERIOR INSURANCE COMPANY, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Wallace A. McLean, of Mitchell, Gilbert & McLean, Austin, for appellants.
Royal H. Brin, Jr., of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
Venue only is involved here. The appellee Superior Insurance Company sued for declaratory judgment against Marvin G. Hulsey, Julian Rogers, Nathan Slinker, Lois Slinker, Ellis Wayne Slinker and Nina Flanagan, alleging that it had issued its family automobile insurance policy to Rogers' father covering a certain automobile; that the said automobile, while driven by Marvin G. Hulsey with Julian Rogers in the car, collided with another automobile, which was driven by Ellis Wayne Slinker (son of Nathan and Lois Slinker) and also occupied by David, Danny and Nina Flanagan (children of Lois Slinker by a previous marriage); that Eillis Wayne Slinker and the three Flanagan children were injured, David and Danny Flanagan fatally, for which injuries and deaths claims have been asserted against plaintiff (appellee) on the premise that the said insurance policy obligated it to defend Hulsey and/or Julian Rogers and to pay any judgments against them or either of them growing out of the accident; but that appellee denied that it was so obligated because (1) Hulsey was not using the automobile with the permission of the named insured John Rogers, and (2) there had been a change of ownership of the automobile. Appellee prayed for judgment declaring that there was no coverage under the said policy of the accident in question, and consequently no duty to defend by suits for injuries or damages therefrom or to pay any judgments arising from any such suits.
Nathan, Lois and Ellis Wayne Slinker and Nina Flanagan filed a joint plea of privilege praying that the cause be transferred to Bexar County, Texas. The defendants Hulsey and Julian Rogers entered a general denial.
The appellee controverted the plea of privilege under Subdivisions 3 and 29a, of Art. 1995, Vernon's Ann.Civ.St.* The appeal is from the order overruling the pleas of privilege.
At the hearing it was stipulated that Ellis Wayne Slinker was a resident of Kentucky, and appellee a resident of Dallas County, on all dates controlling venue in the case. All essential facts were thus established to compel the overruling of Ellis Wayne Slinker's plea under Subdivision 3. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 764 (1956). This was conceded in oral argument.
It only remains, therefore, to determine whether Nathan and Lois Slinker and Nina Flanagan were necessary parties to appellee's suit against Ellis Wayne Slinker, within the meaning of Subdivision 29a, of Art. 1995. In our opinion, they were not.
One is said to be a necessary party when his joinder is 'necessary to afford the plaintiff the full relief to which he is entitled in the suit' which can be maintained against another defendant under some subdivision of Article 1995, V.A.C.S., other than 29a. Ladner v. Reliance Corp., supra. A necessary party has also been defined as one 'so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party.' Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, 75 (1932).
It appears from the meager record before us that appellee has no cause of action against Ellis Wayne Slinker for any of the relief sought and, while the existence of a cause of action is not an essential venue fact to maintain venue in Dallas County as against him under Subdivision 3, the joinder of the order appellants does not create a cause of action against him and they cannot, therefore, be considered as necessary parties. Appellee sought a judgment declaring that it was under no duty (1) to defend anyone who might be sued for damages because of the collision, or (2) pay the judgment in such...
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