1. — Misjoinder of Parties — Indemnity Insurance.
Under an insurance policy of indemnity containing a "no action clause" the insurance company is not liable until a judgment has been obtained against the policy holder, and it would constitute a misjoinder of parties for an injured third party to sue said company as a co-defendant in an action for damages against the policy holder. Kuntz v. Spence, 67 S.W.2d 254, approved.
2. — Motor Carriers.
A policy of indemnity insurance issued to a bus operator under section 11, Article 911a (2 Vernon's Anno. Civ. Stat.), inures to the benefit of an injured third party only after he has secured a final judgment against the insured. Monzingo v. Jones, 34 S.W.2d 662, distinguished. Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482, followed.
MR. JUDGE CRITZ delivered the opinion of the Commission of Appeals, Section A.
1 The opinion of the Court of Civil Appeals in this case is reported in 56 S.W.2d 469. In the case of Kuntz v. Spence, 67 S.W.2d 254, this Section of the Commission adopted Judge Martin's opinion in the instant case. The opinion in the Kuntz case, supra, settles the issue of misjoinder in this case in accordance with the views expressed by Judge Martin's opinion. No good can be accomplished by further discussion here.
It will be noted that the opinion of the Court of Civil Appeals in the instant case contains the following statement:
"The Monzingo v. Jones case, supra, construes a policy required by law to be taken out by motorbus operators and by statute is required to be so written as to give the injured party an affirmative right of action thereon."
2 Monzingo v. Jones (Civ. App.), 34 S.W.2d 662, holds that an insurance company which has issued an insurance policy to a bus operator under the provisions of Section 11 of Article 911a, Vernon's Annotated Civil Statutes of Texas, 1925, Vol. 2, can be sued on such policy in a damage suit for negligence against the insured. We do not construe the above-quoted portion of the opinion of the Court of Civil Appeals in the instant case as upholding that ruling. Volker Grasso v. Cannon Ball Motor Freight Lines et al, No. 6671, this day decided by this Section of the Commission, 125 Tex. 154, 81, S.W.2d 482. It is true that a policy written under the provisions of Section 11, supra, inures to the benefit of an injured third party, but his right of action thereon does not arise or accrue until he has obtained a final judgment against the insured. See Grasso v. Cannon Ball Motor Freight Lines, et al, supra, for a full discussion of this question.
The judgment of the Court of Civil Appeals, which reversed the judgment of the district court, is affirmed.
Opinion adopted by Supreme Court April 3, 1935.