This is а venue case; to the pending suit, Cause No. 33754-G, defendant interposing by plea of privilege a right to be sued in the place of its corporate residence — -Harris County.
The controverting affidavit of insured plaintiff claimed applicability of subdivisions 23 and 28, Article 1995, Vernon’s Ann.Civ.St.; assеrting that this cause of action arises out of a written policy of insurance, No. 6AC 74761, issued to him by defendant under terms of which it was obligated to defend plaintiff in any suit, whether groundless or not, growing out of operation of plaintiff’s butane and propane retail gas service; that defеndant had refused and neglected to defend cause No. 25949, styled Willie Parnell, et al., v. Blue Flame Gas Company, for damages in the amount of $202,000.00 perforce of alleged negligent operation by plaintiff of his retail gas service; the instant suit being for attorney’s fees for $1,000 incurred in dеfending said suit, as is more fully set forth in original petition incorporated in said controverting affidavit for all purposes. By way of trial amendment plaintiff was permitted to interline in said controverting affidavit the fact of an additional policy No. 6MCL 10361, placing in evidence such policy of insurance. On pretrial of cause No. 25949 plaintiff was dismissed as a party defendant to that suit. Appellant had refused to defend suit on behalf of appellee because, in its opinion, it had no policy of insurance affording coverage to appellеe in event a judgment had been taken against him in said Parnell cause of action as alleged. On hearing, the plea of privilege was overruled with timely appeal by the insurance company.
Policy No. 6AC 74761, above, headed “Combination Automobile”, recited as coverages “A — Bodily Injury Liability: to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of thе ownership, maintenance or use of the automobile” “B — -Property Damage Liability: to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use therеof, caused by accident and arising out of the ownership, maintenance or use of the automobile”. And under “conditions” paragraph 25 “purpose of use”, Section (c), “use of the automobile for the purpose stated includes the loading or unloading thereof”. Attached thereto was Form 77 “Motor Vehicle Endorsement” prescribed by the Texas Railroad Commission providing in part “it is understood that the policy to which this endorsement is attached is to be offered for filing by the above named insured with the Railroad Commission of Texas * * * (b) as a cоndition precedent to the privilege to operate as a Liquefied Petroleum Gas Licensee within the State of Texas under the authority of a permit or license heretofore issued, or which may hereafter be issued, and in compliance with the provisions of Article 6053, Revised Statutes of Texas and Amendments thereto * * * and this endorsement is attached for the purpose of making the provisions of the policy conform with the requirements of said laws * * * the obligations and promises of this endorsement shall be effective only while the automobile covered by this policy are being operated within the boundaries of the State of Texas * * * this en *340 dorsement covers all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or diseases, including death, at any time resulting thеrefrom, sustained by any person other than the insured or his employees, and injury to or destruction of property, other than the property of the named insured occurring during the term of said policy through such operation of such trucks and trailers within the boundaries of the State оf Texas.”
Policy No. 6MCL 10361, headed “Manufacturers’ and Contractors’ Liability” contained bodily injury and property liability provisions similar to A and B of the combination Automobile Policy, but only for “premises operation”; under the latter head reciting “liquefied petroleum gas distribution-including installаtion, servicing and repair of liquefied petroleum gas systems, piping and customers’ equipment with or without filling of containers * * No Railroad Commission Endorsement was attached to this policy.
Article 6053, Section 11, first requires a $2,000 surety bond of all licensees, not material here; providing further as follows: “In addition to the bond herein required, such licensee shall be required to procure from some reliable insurance carrier qualified to do business in this state, and keep same in force so long as they shall continue in business, insurance coverage as follows:
“(1) Autоmobile bodily injury and property damage insurance coverages on each and every motor vehicle, including trailers and semi-trailers, used in the transportation of liquefied petroleum gases, in an amount of not less than Five Thousand ($5,000.00) Dollars for bodily injuries sustained by any one person in any one accident and not less than Ten Thousand ($10,-000.00) Dollars for bodily injuries sustained by two or more persons in any one accident, and not less than Five Thousand ($5,000.00) Dollars total property damage for any one accident.
“(2) Manufacturers and Contractors liability pоlicy in an amount of not less than Five Thousand ($5,000.00) Dollars for bodily injuries sustained by any one person in any one accident and not less than Ten Thousand ($10,000.00) Dollars for bodily injuries sustained by two or more persons in any one accident, and not less than Five Thousand ($5,000.00) Dollars total property damage for any one accident.
“(3) Workmen’s compensation or employers’ liability coverage. As amended Acts 1951, 52nd Leg., p. 612, ch. 363, § 5.”
Appellant’s single point complains of the Court’s error in overruling his plea of privilege, “where appellee, plaintiff in the trial court, wholly failed to establish the existence of any exception tо the exclusive venue in the county of one’s residence.”
The exceptions of Article 1995 V.A.C.S., herein questioned are as follows: (23) “Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time cause of action or part thereof arose, provided such corporation, association or company has an аgency or representative in such county; * * (28) “Insurance. — Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated. Suits on policies may be brought against any life insurance company, or acсident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides.”
Appellee’s answering counter points are now quoted: (1) “A suit for attorney’s fees against an insurance company for failure to defend an action brought against an insured under its liability policy is a *341 suit on the policy within the mеaning of Section 28 of Article 1995, RCS. and properly brought in the county where plaintiff resides. (2) A suit against an insurance corporation is properly maintainable in any County in which it has an agency or representative under Section 21 (23-) of Article 1995 RCS.”
Subdivision 28 relates to suits against designated classes of insurance companies; and it is not necessary for the plaintiff therein to furnish proof prima facie of a cause of action. Under subdivision 23 showing of a cause of action or a part thereof is required. Darnell v. Southwestern American Insurance Company, Tеx.Civ.App.,
Turning for a moment to appellee’s policy No. 6MCL-10361, Manufacturers’ and Contractоrs’ Liability, its coverage is limited to “premises operation” of servicing ■.the Blue Flame Butane System. Our Supreme Court in Pan American Insurance Co. v. Cooper, Tex.,
But appellee argues that the Railroad Commission’s endorsement 77 attached to the combination automobile policy must necessarily be construed to afford all the coverage that can be purchased under Standard Manufacturer’s Liability policy to the statutory limits; that is, inclusive of “products, completed operations”. The contention is refuted we think by the language of said automobile insurance policy, the endorsement in question and the Statute, (all above quoted in material part) ; the law expressly requiring the purchase of three policies of insurance. It may be that the limitations under a Manufacturers’ and Contractors’ policy to “premises operation” was an inadequate compliance with the Statute. If so such was a matter for the Enforcement Division, Railroad Commis *342 sion pursuant to Article 6052a, V.A.C.S.; and as pointed out by the appellant this fact would not warrant the extension of coverage of the statutory automobilе policy beyond its lawful intent; and while, relevant to subdivision 23, there may be a prima facie showing of agency in Dallas County; 1 we conclude that the record is lacking in like proof of a cause of action in Dallas County on which appellee’s suit for attorney’s fees must necessarily depend.
Furthermore, exception 28, Article 1995 applies to designated classes of insurance companies. In Insured Lloyds v. Classic Motors, Tex.Civ.App.,
This appellee has failed to do, simply alleging that defendant was an authorized carrier of public liability insurance. Appellant is not a fire, marine or inland insurance company; the other companies mentioned (life insurance, accident, life and accident, health and accident, life, health and accident) being manifestly referable to Chapter 3, Art. 3.01 et seq., Insurance Code. It is not shown that these enumerated companies are authorized to issue the kind of policies in suit; that is involving public liability and property damage, such as are contemplated by Art. 6053, V.A.C.S.
“Exceptions to the venue statute must be strictly construed and clearly established before a citizen can be deprived of his right under the statutes (Art. 1995) to be sued in the сounty of his domicile.” National Life Co. v. Rice,
The order overruling appellant’s plea of privilege must be reversed and judgment here rendered that the cause be transferred to a District Court of Harris County, Texas as provided in Rule 89, Texas Rules of Civil Procedure.
Reversed and remanded with instructions.
Notes
. The Dallas Clаssified Telephone Directory for November 1957 had the following listing: “Pan American Insurance Company, 10203 Lake Gardens, DA-1-0473” Appellee White testifying to direct instructions from the company that he submit policy claims to one Parker of Parker Claims Service, Dallas, who represented them in Dallas County; service of citation herein being made on John T. Parker, Adjuster.