*538On Rehearing.
In disposing of the motion for rehearing by the Highway Motor Freight Lines, we do not deem it necessary to add anything to our original opinion. The position of the Commercial Standard Insurance Company on rehearing is revealed by the following excerpt from its motion, to wit: “It inevitably follows that Commercial Standard Insurance Company was unlawfully joined in the suit. No possible cause of action was stated against it. The court knows that suit could not be maintained against Commercial Standard Insurance Company in connection with plaintiff's cause of action against defendant, Highway Motor Freight Lines, and therefore, the plea of privilege of Commercial Standard Insurance Company should have been sustained.”
We readily agree that, under the rule announced by the Supreme Court in Grasso v. Cannon Ball, etc., Lines, 81 S.W.(2d) 482, referred to in our original opinion, the Commercial Standard Insurance Company was improperly joined, and that the facts alleged present, as to it, simply a potential cause of action, but questions as to misjoinder and the sufficiency of the petition are not before us for consideration. The contention is made that, as the court knows the suit cannot be maintained against the Commercial Standard Insurance Company in connection with the Highway Motor Freight Lines, therefore the plea of privilege of the Commercial Standard Insurance Company should have been sustained. We do not think it follows by any means that, because the petition reveals a misjoinder and a potential rather than actual cause of action against the Commercial Standard. Insurance Company, that its plea of privilege should have been sustained for either reason. We cannot anticipate and decide those questions on an appeal, from an order overruling the plea of privilege. The statute (article 2007) defines the issues to be tried on such a contest. The plea itself is a sweeping denial and prima facie proof of the nonexistence of any exception authorizing the maintenance of the suit in the county where same is pending. If contested, the issue framed relates to the existence, whether or not, of the fact or facts relied upon to confer venue; neither the merits of the case nor any other matter is primarily involved. Expressions may be found in cases to the effect that it is incumbent on a contestant to show a prima facie cause -of action. Obviously this is true only in cases where, in order to establish the fact or facts relied upon to confer venue, it becomes necessary to delve into the merits of the case, as where venue is based on a contract in writing to perform in a particular county, such contract, being also the basis of the suit, must be introduced; also where both the cause of action and venue are based upon fraud, crime, offense, or trespass. We are of opinion that only in cases of the nature of those just mentioned can it be said that a contestant is required to make prima facie proof of his cause of action, and even then such proof is made, not that it is necessary on such hearing to show pri-ma facie a cause of action, but owing to the nature of the case, the evidence that tends to establish the fact or facts relied upon to confer venue also tends to establish the cause of action.
In his contesting affidavit, plaintiff referred to and adopted the allegations of the original petition, which reveals the nature of the action against the Commercial Standard Insurance Company. In substance, plaintiff alleged that the insurance company issued its policy of liability insurance to the motor carrier, insuring against liability for damages, etc.; that such insurance was carried by the motor carrier, in obedience to the statutes of the state; and that all persons having a bona fide claim for injury or damage against the motor carrier were privies, having an interest in the insurance contract. Each defendant was sued as a private corporation and venue in Grayson county was claimed under subdivision 23 of article 1995, in that the cause of action arose in that county.
The nature of the cause of action, as revealed by the petition, was not in issue, nor was the exception under which venue was expressly based an issuable fact, being a matter of law plaintiff was not required to allege, but having done so, and erroneously based the claim of venue on a wrong exception, it did not preclude this court from considering exceptions applicable to the facts alleged and proven, and sustaining venue thereunder.
The case of American, etc., Co. v. McClendon, Chief Justice, et al. (Tex. Com. App.) 81 S.W.(2d) 493 (an original application for mandamus), is very similar on the facts to the case at bar, but we think *539there exists a material variance in the question of law presented and discussed, and because of this differentiation do not regard that decision as an authority on the question we are now considering. In American, etc., Co. v. McClendon, supra, venue was claimed under subdivisions 4 and 29a of article 1995, in regard to which the Court of Civil Appeals said: “The first issue presented is whether appellant is, under subdivisions 4 and 29a of article 1995, Vernon’s Ann. Civ. St., a proper or necessary party to appellee’s suit. If so, the Caldwell county district court had jurisdiction over appellant. If not, appellant’s plea should have been sustained. This in turn depends upon whether appellant’s undertaking was a liability policy or merely an indemnity policy; that is, whether appellant was primarily liable for the damages sustained, or was liable only as in-demnitor to repay to M'erritt what he was compelled to pay out as such damages after final judgment against him.” American Fidelity & Casualty Co. v. Newman (Tex. Civ. App.) 60 S.W.(2d) 482, 483.. The judgment of the trial court, overruling the plea of privilege, having been affirmed by the Court of Civil Appeals, an original petition for mandamus-was filed by the insurance company in the Supreme Court against the Chief Justice and other members of the Court of Civil Appeals for the Third District, to compel respondents to certify to the Supreme Court whether or not the insurance company was a proper or necessary party to the action for damages by the passenger against the operator of the motorbus, insured; the question being determinable on the issue as to whether the policy of insurance declared upon was a contract to indemnify insured against loss, etc., as contradistinguished from a contract of direct liability to the injured person. The Supreme Court having determined, in Grasso v. Cannon Ball, etc., 81 S.W.(2d) 482, that such an insurance contract did not create a primary liability to the injured party, therefore in the mandamus proceedings the court held that the insurance company being neither a necessary nor a proper party to the suit by the injured passenger against the motorbus operator, that venue could not be maintained under either subdivision 4 or 29a of article 1995. No other question was certified or discussed, and if those were the only exceptions to exclusive venue applicable in the instant •case, we would hold, as stated in our original opinion, “that the trial court- erred in overruling the Insurance Company’s plea of privilege,” but for reasons heretofore stated, we believe venue in Grayson county, as to the Commercial Standard Insurance Company, should be sustained under subdivision 28 of article 1995.
Since writing this opinion, we have received the advance sheet containing report of case of Farmers’ Seed & Gin Co. v. Brooks (Tex. Com. App.) 81 S.W.(2d) 675, in which Judge Taylor, in an able and exhaustive opinion, approved by the Supreme Court, answering certified, questions by the Eastland Court, announced the rule that fully vindicates our contention, holding that, under the statute providing that plaintiff, desiring to resist a plea of privilege, should file a controverting plea setting out the facts relied upon to confer venue on the court where case is pending, and that the issue of venue, not of liability, is raised when the controverting plea is filed.
Theréfore, the request that the question of law involved be certified to the Supreme Court is denied, and appellants’ motions for rehearing are overruled.
Overruled.