In December, .1929, G. J. Merritt was operating a motorbus as a common carrier for hire over a public highway between the towns of Lockhart and San Marcos, Tex., under a permit issued to him by the Railroad Commission. In compliance with the provisions of section 11, Acts 1927, 40th Leg., p. 399, c. 270 (Vernon’s Ann. Civ. St. articlе 911a, § 11), he carried a, public liability and property damage insurance policy issued to him by appellant. On December 24, 1929, Charles F. Newman, appellee, while a passenger on said motorbus, is alleged to have received
The first issue presentеd is whether appellant is, under subdivisions 4 and 29a of article 1995, Vernon’s Ann. Civ. St., a proper or necessary party to appellee’s suit. If so, the Cаldwell county district court had jurisdiction over appellant. If not, appellant’s plea should have been sustained. This in turn depends upon whether appellant’s undertaking was a liability policy or merely an indemnity policy; that is, whether appellant was primarily liable for the damagеs sustained, or was liable only as indemnitor to repay to Merritt what he was compelled to pay but as such damages after final judgment against him.
Whilе said policy did provide, among other things, that appellant would not be liable thereunder “until a final judgment shall have been recovered against the assured,” it indemnified the assured against loss imposed by law resulting from claims-upon the assured, and stipulated that the policy was written pursuant tо the provisions of the Motorbus Act above referred to; and that its liability was to be fixed in keeping with the provisions of subdivision 11 of said act, anything in the policy to the contrary notwithstanding. Clearly, therefore, appellant’s liability is determinable under the provisions of subdivision 11 of said Motorbus Act.
We dо not deem any extended discussion of this issue necessary. The express language of the act itself requires “the owner or operator to first procure liability and property damage insurance” before permit to operate is authorized to be granted by the Railroad Cоmmission. It also provides that “such policy or policies shall furthermore provide that the insurer will pay all judgments .which may be recovered аgainst the insured * * * on claims for loss or damage from personal injury * * * and that such judgment will be paid by the insurer irrespective of the solvency or insolvency of the insured.” These provisions of the statute both as a matter of law and by the express terms of the policy itself are to be read intо the policy. It is clear, we think, that such provisions fix not only a primary but an absolute liability on the insurer, not merely to indemnify the assured against what he might be compelled to pay out; after judgment, but to itself pay such judgment or, claim regardless of whether the insured mo- ' torbus owner had or could pаy same; and that this protection clearly inured to- the. benefit of the injured party. That being true, , appellant was a proper party to appellee’s; • suit in Caldwell county. Similar policies uri-der this same act have been before the Courts „ of Civil Appeals at Amarillo in Ameriсan Fidelity & Casualty Co. v. Williams, 34 S.W. ' (2d) 396 (writ ref.), and at Beaumont in Mon-zingo v. Jones,
Appellant cites to the contrary an opinion of Judge West in Warnеr v. Kerrvilie Bus Co. (D. C.)
Clearly, therefore, the insurance company was properly joined with Merritt'in this suit.
Appellant next contends that its plea was improрerly overruled because the evidence fails to show that it was a proper or necessary party to the suit. This contention is not sustained. It is now too well settled to require citation of authorities that, as against a plea of privilege duly filed, plaintiff must both allege and provе sufficient facts to retain venue where suit is filed. The sufficiency of appellee’s controverting plea in the instant case in this respect is not questioned. Other than the copy of appellant’s policy of insurance involved, the statement of facts herein consists wholly of stiрulations as to facts, agreed to by the parties, no witnesses • having testified. The stipulation might easily have been made more specific in the respects complained of, but when given a liberal interpretation, as it should be, it was, we think, sufficient. It is obvious that appellant’s chief, ■ if not its whоle, contention both in the trial court and on this appeal, as a basis for its plea of privilege, was and is that its policy was one of indemnity only and not of liability; and not that appellee’s claims did not come within the purview of the policy. The agreement shows that Merritt was oрerating said motorbus line over the route indicated; that he was insured by the policy introduced,
Finding no error in the record, the judgment of the trial court is affirmed.