Equitable considerations govern the disposition of a litigant's argument that someone in an indispensable party. Toney v. White, 476 F.2d 203, 207 (5th Cir.), modified and aff'd en banc on other grounds, 488 F.2d 310 (5th Cir. 1973); Britton v. Green, 325 F.2d 377, 382 (10th Cir. 1963); Texas N.O.R.R. v. City of New Orleans, 22 F.R.D. 84, 87 (E.D.La. 1958). The equitable considerations in this case go against Shell and Badon.
In Wear the Court cites and quotes with approval from Huyler's v. Ritz-Carlton Restaurant Hotel, D.Delaware, 1924, 1 F.2d 491, 492. The Bank cites 10-A Texas Jurisprudence, Contracts, § 174, p. 351; 10 Texas Jurisprudence, Contracts, § 166, p. 288; 17 C.J.S. Contracts § 58, p. 409; 17A C.J.S. Contracts § 346; Henderson v. Little, Tex.Civ.App., 1952, 248 S.W.2d 759 (writ ref'd n.r.e.); Miles v. Martin, 1959, 159 Tex. 336, 321 S.W.2d 62; Texas N.O.R.R. v. City of New Orleans, 5 Cir., 1961, 292 F.2d 607, 611, upholding E.D.La., 1960, 185 F. Supp. 85, and E.D.La., 1958, 22 F.R.D. 84, 87. The Bank urges Pittsburgh C. St. L. Ry. v. Keokuk Hamilton Bridge Co., 1888, 131 U.S. 371, 9 S.Ct. 770, 33 L.Ed. 157; Pittsburgh, C. St. L. Ry. v. Keokuk Hamilton Bridge Co., 1894, 155 U.S. 156, 15 S.Ct. 42, 39 L.Ed. 106; Positype Corp. of Amer. v. Mahin, 2 Cir., 1929, 32 F.2d 202.
Save for such reservations, plainly indicated, we are in general accord with that penetrating analysis of this complex problem. An earlier opinion on a procedural point but demonstrating Terminal's peculiar position is reported in D.C., 22 F.R.D. 84. Some of the background is also reflected in our opinions deciding an earlier controversy between Belt and TNO: City of New Orleans v. Texas N.O.R. Co., 5 Cir., 1952, 195 F.2d 882; and City of New Orleans v. Texas Pacific Ry. Co., 5 Cir., 1952, 195 F.2d 887.
To the same effect are Lenz v. Wagner, 5 Cir., 240 F.2d 666, 669; Boesenberg v. Chicago Title Trust Co., 7 Cir., 128 F.2d 245, 247, 141 A.L.R. 565; Glens Falls Ins. Co. v. Cook Brothers Inc., D.C. S.D.Ind., 23 F.R.D. 269. There are similar holdings where there is intervention of right by an additional defendant possessing the same citizenship as the plaintiff, Texas New Orleans R. Co. v. City of New Orleans, D.C.E.D.La., 22 F.R.D. 84, 88; Knapp v. Hankins, supra, at page 45 of 106 F. Supp.; Tatum v. Cardillo, supra, 11 F.R.D. 585; see Division 525 etc. v. Gorman, 8 Cir., 133 F.2d 273, 277; see United States to Use and for Benefit of Foster Wheeler Corp. v. American Surety Co. of New York, 2 Cir., 142 F.2d 726, 728, or where the person intervening of right comes in to file a complaint against a plaintiff of the same citizenship, Northeast Clackamas County Electric Coop. v. Continental Cas. Co., supra, at page 332 of 221 F.2d. The law seems to be well phrased and formulated in 4 Moore's Federal Practice, Second Edition, where, upon a review of the cases and an examination of the various reasons cited by the courts for their conclusions, it is said, § 24.18, pp. 135-136:
Generally, a third party is not a necessary or indispensable party to an action to determine the rights of other parties under a contract, simply because the third party's rights or obligations under an entirely separate contract will be seriously affected by the action. See, e. g., Allstate Insurance Co. v. Harrison, 307 F.Supp. 743 (W.D.Ark.1969) (guest's insurer not indispensable party to action determining rights under host's insurance policy); Texas & New Orleans Railroad v. City of New Orleans, 22 F.R.D. 84 (E.D.La.1958); American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 10 F.Supp. 512 (S.D.N.Y.), Aff'd 76 F.2d 1002 (2d Cir. 1935), Cert. denied City of New York v. Murray, 295 U.S. 760, 55 S.Ct. 923, 79 L.Ed. 1702 (1935) (although setting aside lease would make impossible the performance of a contract between the lessee and another, third person was only a proper party and could be joined or not at option of the plaintiff). In State Farm Mutual Automobile Insurance Co. v. Mid-Continent Casualty Co., supra, an action was filed by an automobile lessee's insurer against the lessor's insurer for declaration of rights arising out of an accident involving a rental automobile while operated by lessee.
Terminal's interest is discussed in an earlier opinion granting its motion to intervene. D.C., 22 F.R.D. 84. The pertinent facts are not in dispute; the applicable law is elementary; and the basic issue is a narrow one.