Zurich Ins. Co. v. Wiegers, 12234
| Decision Date | 10 September 1975 |
| Docket Number | No. 12234,12234 |
| Citation | 527 S.W.2d 511 |
| Parties | ZURICH INSURANCE COMPANY, Appellant, v. Adrian Harold WIEGERS, Appellee. |
| Court | Texas Court of Appeals |
Milton L. Bankston, Joseph V. Crawford, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
Bob Roberts, Byrd, Davis, Eisenberg & Clark, Austin, for appellee.
This is an appeal from the judgment of the district court of Travis County overruling the plea of privilege of appellant, Zurich Insurance Company, and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 4, 23, 27, 28, and 29a.
In March, 1972, a station wagon owned by Quality Meat of Austin, Inc., and driven by Thomas B. Lopez, collided in Travis County with a pickup truck owned and operated by appellee, Adrian Harold Wiegers. Appellee filed suit in January, 1974, against Vanguard Insurance Company and Reliance Insurance Company. Three weeks later appellee filed an amended petition complaining only of Reliance Insurance Company and appellant, Zurich Insurance Company. Reliance Insurance Company was the liability insurance company for Quality Meat of Austin, Inc. and Zurich Insurance Company was the uninsured motorist insurance carrier for Wiegers. Neither the estate of Thomas B. Lopez, deceased, nor Quality Meat of Austin, Inc., were parties to the suit.
Appellee's trial petition characterized the lawsuit as one brought under the 'Declaratory Judgment Statutes and Rules of the State of Texas' to determine '. . . which insurance carrier is responsible in this cause, and for such sums of money as pleaded . . .' Appellee prayed for a determination of whether or not coverage existed for Quality Meat of Austin, Inc., by reason of its policy of insurance with Reliance Insurance Company. In the alternative, appellee pleaded that if it were determined that no such coverage existed, then he sought a recovery against his own uninsured motorist carrier, Zurich.
Zurich filed a plea of privilege to be sued in the county of its domicile, Dallas County. Wiegers filed his controverting plea, asserting that venue was in Travis County by reason of Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 4, 23, 27, 28, and 29a. Upon trial, the court overruled the plea of privilege.
Zurich attacks the judgment by twelve points of error contending that: (1) the judgment may not be sustained by §§ 4 and 29a; and (2) appellee waived any other subdivision of art. 1995 which would have sustained the judgment.
Section 4 of art. 1995 provides in part:
'If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.'
Under § 4 the venue facts to be established are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the suit against the resident defendant; and (3) the plaintiff has a Bona fide claim against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), Hoover v. Barker, 476 S.W.2d 126 (Tex.Civ.App.1972, writ dism'd), 1 McDonald, Texas Civil Practice, § 4.10.2 (Rev.Ed.1965).
By its first point of error Zurich claims that venue cannot be maintained in Travis County under § 4 because there is no evidence that its co-defendant, Reliance Insurance Company, was a resident of Travis County.
We agree that Wiegers failed to prove that Reliance Insurance Company was a resident of Travis County. During the trial, and over Zurich's objection, the court admitted into evidence a response by Reliance Insurance Company to a request for admissions relative to its agent in Travis County. That evidence will not sustain the judgment for the reason that a corporation is not a resident of every county in which it maintains an agent. International Harvester Company v. Faris, 360 S.W.2d 864 (Tex.Civ.App.1962, no writ). To meet his burden of showing that Reliance Insurance Company is a resident of Travis County for venue purposes, Wiegers had to show that the corporation has its registered office in Travis County. Tex.Bus.Corp.Act Ann. art. 8.08 (1955). See also Tex.Bus.Corp.Act Ann. art. 2.09 (1955), Ward v. Fairway Operating Company, 364 S.W.2d 194 (Tex.1963).
Section 29a provides:
'Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.'
Before § 29a is applicable these conditions must be shown to exist: (1) the suit must be against two or more defendants; (2) all of the defendants must reside outside the county of suit; (3) venue must be proper as against at least one of the defendants under some exceptions to the general venue rule; and (4) the defendant urging his privilege must be a necessary party to the claim against the defendant as to whom venue is proper. 1 McDonald, Texas Civil Practice, § 4.36 (Rev.Ed.1965).
Zurich urges in point of error number nine that § 29a cannot be the basis for the judgment for the reason that Wiegers has not shown that appellant is a necessary party to the suit. Assuming that Wiegers' suit is maintainable in Travis County against Reliance Insurance Company, a question which we do not reach in the absence of Reliance from this appeal, we have concluded that Zurich is not a necessary party to the suit. To be a necessary party under § 29a, the joinder of Zurich in the suit against Reliance Insurance Company must be necessary in order to afford Wiegers the complete relief to which he is entitled in his suit against Reliance. To show this Wiegers had the burden to allege and prove joint responsibility of Zurich and Reliance. Alternative responsibility, as pleaded by Wiegers, is not enough. Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973), see State Farm Mutual Automobile Insurance Company v. White, 461 S.W.2d 476 (Tex.Civ.App.1970, no writ).
By its final point of error Zurich claims that Wiegers waived any other sections of art. 1995 which might have sustained the judgment. In addition to §§ 4 and 29a, Wiegers had asserted that venue was proper in Travis County by virtue of §§ 23, 27, and 28.
In his opening statement to the court Wiegers' counsel said:
'We are going under Section 4 and Section 29a of the venue statute as to whether it is proper to have Mr. Bankston (counsel for Zurich), an out-of-state defendant with no agent in this county held in this county by virtue of the other parties.
'Venue is proper as to Mr. Maroney (counsel for Reliance); he has no residence; he is an out-of-state corporation also.
'The other provision is Section 29a, which provides--and this is the main one--where there are two or more defendants in any suit brought in any county in this state and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants--in other words, if it can be maintained lawfully here as to any defendant, then such suit may be maintained in this county against any and all necessary parties hereto.
'Therefore, the only question becomes whether or not these two parties are necessary parties to determine the question of permissive use of uninsured motorist nature or not (sic).
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