(dissenting).
I do not agree with the conclusion reached by Chief Justice ARCHER and without restating the facts I will briefly note my dissent.
Smith was injured in Travis County and appellant’s suit is to establish liability for that injury. This liability originated, if at all, in Travis County and not elsewhere and except for this injury the cause of action would never have arisen.
It is undisputed that appellee issued its policy of insurance covering Capitol Aggregates, Inc.’s trucks while loading and unloading, that it denies liability and that it is a corporation.
The only question presented on this venue hearing is: Did a part of appellant’s cause of action arise in Travis County? If it did then venue in Travis County is fixed by Exception 23 which in part provides: “Suits against a private corporation * * * may be brought * * * in the county in which the cause of action or part thereof arose * *
It is not disputed that appellee issued the •contract of insurance in question; that Smith was injured and that such injury occurred in Travis County where Capitol Aggregates, Inc.’s trucks were being operated. These are the facts that gave appellant the right to- bring the suit and are the facts from which appellant’s remedy originated. In Western Wool Commission Co. v. Hart, Tex.Sup., 20 S.W. 131, 132, the court said:
"Every cause of action, it is said by Mr. Pomeroy, consists, when subjected to analysis, of two separate and distinct elements, — the primary right and duty of the parties respectively, and the wrongful act or omission violating it. Our statute (section 21, art. 1198) seems to recognize the fact' that the cause of action consists of two distinct elements, .as it provides that the jurisdiction of the court shall attach where ‘a part thereof arose.’ The proof certainly shows that the transactions between appellant’s agent and appellee in Howard county, with reference to the shipment of the wool to appellant at St. Louis, formed a part of the cause of action, (without these facts, which the proof disclosed, plaintiff showed no right of recovery;) and it is difficult to understand the meaning of the language giving jurisdiction ‘where a part thereof arose’ if it was not intended to embrace a case like the present.”
The court said further:
“ * * * in the case under consideration the plaintiff seeks a recovery on the ground that ‘a part of the cause of action arose’ in Howard county, Tex. That a part of it arose in that county is manifest, because, if the facts (the dealings and transactions between plaintiff and Robinson, appellant’s agent in Howard county) be eliminated from this controversy, plaintiff could not recover. That part of the cause of action which arose in that county is so essential to the existence of the cause of action as a whole that there would be none without it.”
In Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621, 624, the court quoted with approval from Western *240■Wool Commission Co. v. Hart, supra, as follows:
“The cause of action is that in which the plaintiff’s remedy has its origin— the fact or facts giving him the right to bring the suit. * * * Those facts which show the plaintiff’s primary right in the matter are as much a part of the cause of action, and are as necessary as a foundation for the suit, as are those facts showing a violation or invasion of his right, ordinarily termed a breach of the contract or covenant by the defendant.”
I would reverse the judgment of the trial court and here render judgment overruling appellee’s plea of privilege.