On Motions for Rehearing. Both sides have filed motions for rehearing, the Cab Company and the Underwriters, on the one hand, urging only the setting-aside of the affirmance-portion of our former judgment and in lieu thereof that the cause be remanded for a new trial against the Cab Company, while Crone, on the other hand, insists that such judgment of this court be now vacated entirely and that of the court below be in all things affirmed.
After careful consideration of the questions involved, it is determined that the position of plaintiffs-in-error should be upheld and that of the defendant-in-error overruled, which accordingly will be done, mainly upon these considerations:
(1) As our original opinion discloses, the plaintiffs-in-error rely on the construction put upon essentially the same structural provision as that appearing in this surety-bond — obligating the Cab Company to pay all final judgments which may be rendered against it for damages, etc., — by the Supreme Court in the Grasso Case, 125 Tex. 154,81 S.W.2d 482; while, in turn, the defendant-in-error maintains that, on account of the further provision therein — in effect, that "all suits which may be instituted there on may be instituted and prosecuted to final judgment against either the principal or the surety, or both" — the construction of this bond as a whole is ruled by the principle applied by the Amarillo court — with the Supreme Court's approval in its refusal of a writ of error — in Commercial Standard Company v. Shudde, Tex. Civ. App. 76 S.W.2d 561.
(2) As this court understands it, there is no analogy between the respective holdings in the Grasso and Shudde Cases, but, on the contrary, they run along parallel lines severally construing materially differing respective provisions by state-statute, city-ordinance, and private contract; in other words, the Amarillo court simply held that the city-ordinance in that instance — contrary to the legal effect of the insurance policy itself — imposed primary liability upon the Insurance Company, notwithstanding provisions in its policy directly to the contrary, and that that situation alone distinguished that cause from the line of cases the Grasso Case, supra, falls among, that is Ray v. Moxon, Tex. Civ. App. 56 S.W.2d 469, Kuntz v. Spence, Tex.Com.App.,67 S.W.2d 254, and others.
In the suit at bar there is before us for construction only the surety-bond, quoted in the original opinion; no city-ordinance, so far as the record discloses, was ever pled or proven, hence this court does not know that one even existed; 16 Texas Digest, Evidence, 32, and cited cases.
So that, with nothing but the bond in this instance to construe, the question goes back to one of what effect our courts have given just such a contract between the parties as the quoted provision constitutes; as before held, it is still thought that construction has been definitely settled by the Grasso Case, supra, and those in line with it; indeed, in the very recent case of Seaton v. Pickens, 126 Tex. 271, 87 S.W.2d 709,106 A.L.R. 512, the Supreme Court expressly so determines on a state of facts not deemed by this court to be different in legal effect from those here present; there the main obligation of the Insurance Company was (page 710) "in event a final judgment be rendered against the assured, to pay the same to an amount not exceeding the limits specified herein", which is substantially the same as the one in this bond; the same construction is there given that provision when appearing in the policy of insurance there involved as was given it when appearing in the statute reviewed in the Grasso *Page 508 Case, and it was further determined that, whether so appearing in a private contract or a statute, it did not impose any primary liability upon the insurer or surety, but specifically limited their liability to the payment of a final judgment that might thereafter be rendered against the assured in the policy, or the principal in the bond, thereby making the rendition of a final judgment the basis of a suit against them by the injured person, and forbidding their joinder in advance of that happening.
Wherefore, under these conclusions, it follows that our original judgment of dismissal against the Underwriters was correct and should be adhered to, but, as indicated, a reversal and remanding against the Cab Company for a new trial against it alone should be had, under these authorities: Bransford v. Pageway Coaches, Tex.Com.App., 104 S.W.2d 471; Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Texas Power Light Co. v. Stone, Tex. Civ. App. 84 S.W.2d 738; Page v. Thomas,71 S.W.2d 234.
It will be so ordered.
Motion of defendant-in-error refused, motion of plaintiffs-in-error granted, judgment of affirmance against the Cab Company set aside, and the cause remanded for a new trial as against it alone.
PLEASANTS, C. J., absent.