Gugliemetti

Defendants appeal from a judgment entered against them. The action was for damages alleged to have been suffered by the plaintiffs by reason of the killing of two cows. The cows were struck by an automobile stage driven by defendant Graham and owned by the United Stages. The defendant Western Indemnity Company is sued because of its alleged liability on an undertaking given. The undertaking mentioned was one general in form and that commonly in use, and made for the purpose of insuring automobile carriers against loss by reason of damage caused by the operation of their. vehicles.

The principal point argued by the appellants is that there was a misjoinder of parties defendant, particularly that the surety company by its undertaking only agreed to respond after judgment against the insured; in other words, that the contract was one of insurance against loss and not one to indemnify against liability. It is true that the contract of insurance, in so far as its terms directly fix the liability of the insurer toward the insured, does bear the general character of a contract of insurance against loss, rather than one to indemnify against liability. However, there are two clauses in…