On Motion for Rehearing.
The twelfth paragraph of appellee’s motion for a rehearing is as follows:
“This Court erred in holding that the portion of the Court’s charge just preceding the issue submitting the amount of damages
*340“ ‘If in response to tlie foregoing question you have answered that the defendant’s truck was operated in a negligent manner, and that such negligence, if any, caused the injury to the plaintiff, and if you have also answered that the plaintiff was not guilty of negligence contributing to the accident, then you will answer the following question; otherwise you need not answer the following question:’ constituted reversible error, because in so holding the decision of this Court holds differently upon a question of law, and is in conflict with a prior decision of its own, and of other Courts of Civil Appeals, and of the Supreme Court in the following cases: D. & H. Truck Line v. Hopson (Tex. Civ. App.) 4 S.W.(2d) 1013; D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661; Texas Landscape Company v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423; Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S.W.(2d) 208, 211; Texas Employers’ Insurance Association v. Heuer (Tex. Civ. App.) 10 S.W.(2d) 756, 759; Missouri, O. & G. Railway v. Webb (Tex. Civ. App.) 178 S. W. 728.”
The three cases first cited do not discuss the question here raised in such a way as to disclose on the face of the opinion that this question was in these cases. Appellee, realizing this fact, has accompanied his motion for a rehearing with copies of briefs to disclose the fact that this question was actually raised in these three cases and either overruled without comment or ignored by the court. There is nothing said in these opinions which conflicts with what we have said in our original opinion.
Appellee next mentions Ineeda Laundry v. Newton; there the complaint was with reference to questions 11, 12, and 13. By question 11 the court inquired of the jury if ap-pellee received injuries in the collision with appellant’s truck; by question 12 the jury was asked whether or not the truck was being operated by an. agent or employee of appellant. Question 13 submitted to the jury, “What sum of money paid now would, in your judgment, compensate the plaintiff for the injuries, if any, received by her?” In connection with these questions, the court instructed the jury that, if they had answered questions 11 and 12 “No,” then not to answer question 13. There was of course nothing improper in this instruction. If there was no injury, it would have been confusing, and, on the weight of the evidence, for the court to require the jury to find the amount of damages when they had previously answered that there was no injury. In the case at bar the injury was undisputed. Grasso had lost an arm as a direct result of this collision and the jury could have properly stated the amount of his damages independent of the question of negligence. Texas Employers’ Ins. Ass’n v. Heuer (Tex. Civ. App.) 10 S.W.(2d) 756, 759, is a similar case to the Ineeda Laundry Case.
In Missouri, O. & G. R. Co. v. Webb (Tex. Civ. App.) 178 S. W. 728, the court said in effect that the giving of a general charge in a case submitted on special issues was harmless error. This opinion was rendered June 6, 1915, at which time submission of cases on general charges was rather the usual custom, and submission on special issues was rather new in this state. There are so many recent opinions which in effect overrule the opinion in that case, and the case on which it is based, Texarkana, etc., R. Co. v. Casey (Tex. Civ. App.) 172 S. W. 729, that we will not attempt to cite all of them. In addition to those cited in our original opinion, we add: McDaniel v. Morrison (Tex. Civ. App.) 42 S.W.(2d) 454; Tex. Ind. Ins. Co. v. Davis (Tex. Civ. App.) 32 S.W.(2d) 240; Kemper v. Police & Firemen’s Ins. Ass’n (Tex. Com. App.) 48 S.W.(2d) 254; Solo Serve Co. v. Howell (Tex. Civ. App.) 35 S.W.(2d) 474; Southwestern Land & Loan Co. v. Burr (Tex. Civ. App.) 285 S. W. 675, 678; Hovey v. See (Tex. Civ. App.) 191 S. W. 606; St. Louis Southwestern Railway Co. v. Osborne (Tex. Civ. App.) 270 S. W. 922, 923.
Appellee further contends that, even if the charge was error, it was harmless error, as no resulting injury was shown.
We cannot agree with this contention. When an erroneous instruction is given, then a reversal of the judgment must follow, unless it clearly appears that no prejudice resulted to the losing party by reason thereof. Walker v. Dawley (Tex. Civ. App.) 4 S.W.(2d) 159; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169; article 2189, R. S. 1925.
In Humble Oil & Ref. Co. v. McLean (Tex Com. App.) 280 S. W. 557, 559, an opinion by the Commission of Appeals, and approved by the Supreme Court, Judge Harvey said:
“Every party litigant has the right to have his case tried in accordance with such statutory provisions. If this right be violated, over his objection, by the submission of instructions not authorized by statute, injury to the objecting party is presumed; and, unless it clearly appears that no injury or prejudice results to him, or his cause, he is entitled to a new trial. * * *
“In such a case, it is not required that the objecting party, in stating his objection, shall point out specifically in what particular way such a charge operates prejudicially to his cause, but it is sufficient that he directs attention to the fact that such charge is a general .one not authorized by the statutes, and that he bases his objection on that ground.”
Our attention is called to Commercial *341Standard Ins. Co. v. Paul M. Caster, by the Court of Civil Appeals for the Tenth District at Waco, decided March 30,1933,1 in which it is held that there is no error in the charge under consideration. The authorities cited in that opinion are D. & H. Truck Line v. Hopson, supra; D. & H. Truck Line v. Lavallee, supra; and Texas Landscape Co. v. Longoria, supra. As we said above, the opinions in these cases do not contain one word of discussion of this charge. We cannot agree with that opinion.
Appellee further contends that in our original opinion, wherein we held that there was a misjoinder of parties, we are in conflict with the following cases: Paul v. Dutton (Tex. Civ. App.) 55 S.W.(2d) 606; American Fidelity & Casualty Company v. Williams (Tex. Civ. App.) 34 S.W.(2d) 396, 402; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662; Thurman v. Chandler (Tex. Civ. App.) 52 S.W.(2d) 315; American Auto Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, and Commercial Standard Ins. Co. v. Caster, supra. We are not in conflict with American Auto Ins. Co. v. Struwe, because the city ordinance under which the insurance policy was issued in that ease is sufficient to distinguish it from this ease, in that the ordinance required such insurance to inure to the benefit of the public. In Paul v. Dutton and Thurman v. Chandler, supra, the court makes it plain that they base their decisions on Monzingo v. Jones, so what we shall hereafter say with reference to this case will apply also to Paul v. Dutton and Thurman v. Chandler.
In American Fidelity & Casualty Co. v. Williams the injured party first secured judgment against the assured and then brought suit on this judgment against the insurance company. The facts are so different in that case from those in the case at bar that we do not deem it necessary to discuss the same further.
In Commercial Standard Ins. Co. v. Caster, supra, the court bases its holding largely on the Monzingo Case and Texas Landscape Co. v. Longoria, supra. If the Longoria Case is to be construed as holding that an insurance company can be properly joined with the assured under a policy such as we have in the present case, it has been in effect overruled by Cuellar v. Moore, supra, and the very recent case of Ray v. Maxon (Tex. Civ. App.) 56 S.W.(2d) 469. We feel that Cuellar v. Moore and Ray v. Maxon correctly state the law in cases where a private individual ‘is the assured in a policy, such as is described in those two cases, and especially is this true where the policy has what is known in legal parlance as a no-action clause.
This leaves just two other questions to be disposed of, which are: (1) Does the absence of a “no-action” clause in the policy change the rule? and (2) Does the statute with reference to bus companies and truck lines, to wit, section 11 of article 911a, and section 13 of article 911b, change the rule?
If we should follow the Monzingo v. Jones, Paul v. Dutton, and Commercial Standard Ins. Co. v. Caster Cases, we would answer these questions in the affirmative. We do not follow these eases. We agree with the holding on these questions in American Fidelity & Casualty Co. v. Jones Transfer & Storage Co. (Tex. Civ. App.) 46 S.W.(2d) 1054, and American Automobile Ins. Co. v. Cone (Tex. Civ. App.) 257 S. W. 961.
We do not feel that the no-aetion clause alone is the determining feature. The real question is, Does the policy by its terms expressed or implied give to injured parties a direct right to sue the insurance company, or are they required to first secure judgment against the assured before they can have a cause of action against the insurance company? We think that the provisions in the policy in the present case are sufficient to clearly show that the policy was strictly personal between the insurer and the assured ; that no other person had any claim against the assured until he had secured a judgment establishing the amount of his damages.
The court is bound by the language which the two contracting parties saw fit to use. It cannot write something into the contract of insurance that the parties themselves did not write. It is true that the provisions in an insurance policy are to be construed strictly against the insurance company because the language is selected by the insurance company. However, this rule does not apply to strangers to the contract.
What are the stipulations contained in the policy under investigation? The policy under consideration provides as follows:
(a) “To insure the assured named and described against direct loss by reason of liability imposed by law upon the assured.” '
Shall this be construed to mean liability not imposed by law, when it says liability imposed by law? We think not. Universal Auto Ins. Co. v. Denton, 185 Ark. 899, 50 S.W.(2d) 592; Engler v. Hatton (Tex. Com. App.) 12 S.W.(2d) 990; Owens v. Jackson-Hinton Gin Co. (Tex. Civ. App.) 217 S.W. 762; American Auto Ins. Co. v. Cone (Tex. Civ. App.) 257 S. W. 961; Hanson v. Haymann (Tex. Civ. App.) 280 S. W. 869; American Fidelity & Casualty Co. v. Jones, etc., Co. (Tex. Civ. App.) 46 S.W.(2d) 1054; In re Harrington Motor Co., [1928] 1 Ch. 105, 59 A. L. R. 1111; Fenton v. Poston, 114 Wash. 217, 195 P. 31; Duerler Mfg. Co. v. Dullnig (Tex. Civ. App.) 83 S. W. 889; Bowers v. Gates, 201 Mich. 146, 166 N. W. 880; Van Derhoof v. Chambon, 121 Cal. App. 118, 8 P.(2d) 925; New York Ind. Co. v. Ewen, 221 Ky. 114, 298 S. W. 182; *342Aplin v. Smith, 197 Iowa, 388, 197 N. W. 316; O’Neal v. Pocahontas Transp. Co., 99 W. Va. 456, 129 S. E. 478; Smith -Stage Co. v. Eckert, 21 Ariz. 28, 184 P. 1001, 7 A. L. R. 995; Small v; Morrison, 185 N. O. 577, 118 S. E. 12, 31 A. L. R. 1135; Atlas Hardwood Lumber Co. v. Georgia Life Ins. Co., 129 Tenn. 477, 167 S. W. 109; E'mbler v. Hartford, etc., Co., 158 N. Y. 431, 53 N. E. 212, 44 L. R. A. 512; Carter v. Aetna Life Ins. Co., 76 Kan. 275, 91 P. 178, 11 L. R. A. (N. S.) 1155; Travelers’ .Ins. Co. v. Moses, 63 N. J. Eg. 260, 49 A. 720, 92 Am. St. Rep. 663; Puget Sound Imp. Co. v. Frankfort, etc., Co., 52 Wash. 124, 100 P. 190; Bain v. Atkins, 181 Mass. 240, 63 N. E. 414, 57 L. R. A. 791, 92 Am.'St. Rep. 411; Frye v. Bath, etc., Co., 97 Me. 241, -54 A. 395, 59 L. R. A. 444, 94 Am. St. Rep. 500;- Charlton v. Van Etten (D. C. Minn.) 55 F.(2d) 418; Universal Auto Ins. Co. v. Denton, 185 Ark. 899, 50 S.W.(2d) 592.
(b) “In event a final judgment be rendered against the assured, to pay the same to an amount not exceeding the limit specified herein.”
Shall this language be construed as meaning that liability shall start before final judgment? In O’Neal v. Pocahontas Transportation Co., 99 W. Va. 450, 129 S. E. 478, 480, the West Virginia court, in construing a policy with such a provision, said: “The policy pleaded is a contract between the assured * * ⅜ and the insurance company, whereby it is,stipulated that it will pay and satisfy judgments finally establishing the assured’s liability in actions for damages. ⅜ * * There is no privity of contract between the injured person and the insurance company. The remedy, well established, is by a suit against the tort-feasor alone.”
We agree with this statement. Aplin v. Smith, 197 Iowa, 388, 197 N. W. 316. In Bowers v. Gates, 201 Mich. 146, 166 N. W. 880, 881, the court said: “Nothing in the contract gives him [the injured party] any right of action in tort, or otherwise, against the insurer of the alleged tort-feasor. The law upon that subject is elementary in principle.”
(e) “It is understood and agreed that the insolvency or bankruptcy of the assured shall not release the company from the payment of damages, for injuries or loss occasioned during the life of the policy. In case execution against the assured ⅜ * * is returned unsatisfied .in an action brought by the assured * * ⅜ an action* may be maintained by the injured person * * * against the company for the amount of the judgment of said action not exceeding the amount of the policy.”
Gan it be said that, because the insurer gave the alleged injured party a secondary right, thereby a stranger to the contract acquired a primary right? It has been well settled in a number of states that under this clause the injured party acquires ho primary rights. Universal Auto Ins. Co. v. Denton, 185 Ark. 899, 50 S.W.(2d) 592; New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S. W. 182; Edwards v. Fidelity & Casualty Co., 11 La. App. 176, 123 So. 162; Smith Stage Co. v. Eckert, 21 Ariz. 28, 184 P. 1001, 7 A. L. R. 995; Aplin v. Smith, 197 Iowa, 388, 197 N. W. 316; Van Derhoof v. Chambon, 121 Cal. App. 118, 8 P.(2d) 925; United States Fid. & Guaranty Co. v. Williams, 148 Md. 289, 129 A. 660.
(d)'“All rights hereunder are strictly personal to the assured named in this policy.”
Shall this language be construed to mean that all rights are not strictly personal to the assured? This stipulation should be given its plain and unmistakable meaning.
(e) “If a claim is made on account of any such accident, the assured shall give like notice thereof immediately after such claim is made with full particulars. If thereafter any suit is brought against the assured to enforce such claim, the assured shall immediately forward to the Company, or its authorized agent, every summons or other process as soon as the same shall have been served. Whenever requested by the Company, the assured shall aid in effecting settlement, securing information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times render all possible cooperation and assistance. The assured shall not voluntarily assume any liability or interfere in any negotiations for settlement or in any legal proceedings, or incur any expense, or settle any claim, except at assured’s own cost without the written consent of the company previously given.”
It has been definitely held in other states that this stipulation confers no primary rights upon injured parties.
Justice Cardozo, in Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 160 N. E. 367, 368, 72 A. L. R. 1443, says: “If the terms could be disregarded, insurers would be helpless to defend themselves against chicanery or covin. They might then be held, though there had been neither notice of the claim nor opportunity reasonably prompt to investigate the merits.” gee, also, Hynding v. Home Accident Insurance Co., 214 Cal. 743, 7 P.(2d) 999; Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374; Piper v. American Fidelity & Casualty Co., 157 S. C. 106, 154 S. E. 106; Smith Stage Co. v. Eckert, supra.
Under accepted rules for the construction of contracts, where a stranger contends that it was intended that the provisions of a contract should inure to his benefit, such intention must be clearly apparent. In the policy under consideration it does not clearly appear that the injured parties shall have primary rights against the insurer, but, on the contrary, it does appear, as above point*343ed. out, that there is to be no primary liability to injured parties. In Van Derhoof v. Chambon, 121 Cal. App. 118, 8 P.(2d) 925, 930, the court said: “Nowhere in the policy is there any express contract of direct liability to third persons. An intent to make an obligation inure to the benefit of a third party must clearly appear in the contract, and if there is any doubt' about it, it should be construed against such intent.” Leon v. Gulf Production Company (Tex. Civ. App.) 35 S.W.(2d) 1101; Hoffer Oil Corp. v. Hughes (Tex. Civ. App.) 16 S.W.(2d) 901; Miles v. Briggs (Tex. Civ. App.) 18 S.W.(2d) 850; Pennington v. Bevering (Tex. Com. App.) 17 S.W.(2d) 772; Southern Travelers’ Ass’n v. Wright (Tex. Com. App.) 34 S.W.(2d) 823; Blair v. Bird (Tex. Civ. App.) 20 S.W.(2d) 843; Sweetwater, etc., Ass’n v. Allison (Tex. Civ. App.) 22 S.W.(2d) 1107.
The only remaining question is, Did the Legislature in passing section 13, art. 911b, Yernon’s Annotated Statutes, intend that injured parties should have a right to join insurance companies in suits against truck lines for damages? Article 911b, dealing with truck lines, was passed by the Forty-First Legislature in 1929 (chapter 314). Article 911a, dealing with bus companies, was passed by the Fortieth Legislature in 1927 (chapter 270). The two articles are almost identical. It is a reasonable deduction that article 911b was largely copied from article 911a. When article 911a (then House Bill No. 50) was before the Senate, an amendment was adopted which read as follows: “The motor bus company and the insurance company carrying the insurance required by this Section may be sued jointly in any action for damages arising from injury to person or •property through the operation of any such motor bus or motor buses.”
This amendment was eliminated by a free conference committee and the bill finally passed without any such provision. Shall we presume that the Legislature intended that which it eliminated from the bill?
It is clear that neither from the face of the policy nor from the provisions of the ■statute can there be found authority which would justify the joining of the insurance company in a suit against the tort-feasor for •damages.
We therefore adhere to our former holding that the plea in abatement of the insurance company should have been sustained.
It is urged that the joinder of the insurance company should be allowed, to avoid a multiplicity of suits. It has been held that, where an insurance company comes into .a suit, furnishes its own attorneys to defend -the suit, examines and cross-examines witnesses, argues to the jury, and participates in the trial as fully as if it were a party, after the plaintiff has secured a favorable verdict from the jury, he may by motion in the original suit have judgment over and against the insurance company, as the law treats as parties all real parties to the litigation, whether technically parties or not. In other words, by participating in the proceedings, one is estopped by the judgment as to any question actually litigated and decided therein. Haines v. West, 101 Tex. 226, 105 S. W. 1118, 130 Am. St. Rep. 839; 15 R. C. L. §§ 481, 483. Thus it is not necessary to name the insurance company in the original suit to avoid a multiplicity of suits.
The question is raised as to what injury will result if the insurance company is joined. In Bergstein v. Popkin, 202 Wis. 625, 233 N. W. 572, 575, the court said: “Whether or not it is an indictment of our jury system, it is a fact recognized by everyone that the purpose of making the insurance company a party defendant is to increase the award of damages made against the insured. That it has that effect, no one familiar with the trial of cases can doubt.”
We have been asked to certify the questions herein to the Supreme Court, but, as a writ of error will lie to the Supreme Court in this ease, we have declined to certify as requested. Magill v. Brown, 20 Tex. Civ. App. 662, 50 S. W. 143, 642; Marnett Oil & Gas Co. v. Munsey (Tex. Civ. App.) 232 S. W. 867.
Appellee’s motion for a rehearing is overruled.
Rehearing pending.