On Appellant’s Motion for Rehearing.
Appellant criticises the recitation in the original opinion that “Hatfield was not a beneficiary in the policy”; this was an inaccuracy in recitation rather than in the statement of the actual facts as applied to the concrete case in court; in other words, this court was considering the application of this indemnity-policy to the two litiga-tions involving it — the first suit of the ap-pellee against the Gulf Brewing Company, and his second one against L. M. Robertson — in neither of which was the driver, Hatfield, sued, or in any “litigious nor practical sense” a party.
A re-examination of the record, which reflects only stipulations about and extracts from the policy, shows:
(1) It was one of indemnity only, obligating appellant to pay on behalf of any insureds under it “all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, (A) for bodily injuries, and (B) for injuries to or destruction of property”; obviously, these provisions could only take effect as against such an assured as had at least been made party to a suit, in which it was sought to hold him liable for one or the other of these two sorts of damages; wherefore, appellant cannot predicate any derivative liability upon Hatfield.
(2) Hatfield, the non-sued driver of this automobile, was at most only a potential beneficiary in the policy, contingent upon whether or not he was shown to have been using the automobile at the time with the permission of the specifically-named insureds, Gulf Brewing Company and L. M. Robertson; there was no proof of this indispensable permission as to L. M. Robertson, only mere averments to that effect in appellant’s bill for injunction herein.
The motion has been carefully considered, but under the conclusion that the cause was correctly decided here on original submission, it will be overruled.
Motion for rehearing refused.