Texas Employers' Ins. Ass'n v. Price

• Citation: 300 S.W. 667
• Decision Date: 11 July 1927
• Docket Number: (No. 1948.)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. PRICE.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

300 S.W. 667

TEXAS EMPLOYERS' INS. ASS'N v. PRICE.^*

(No. 1948.)

Court of Civil Appeals of Texas. El Paso.

July 11, 1927.

Rehearing Denied September 5, 1927.

Writ of Error Dismissed November 16, 1927.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit to set aside a final ruling and decision denying compensation for injuries brought by Guy E. Price against the Texas Employers' Insurance Association. Judgment of the Court of Civil Appeals (291 S. W. 287) reversing judgment for plaintiff was reversed (296 S. W. 284), and the cause remanded to the Court of Civil Appeals for further proceeding. Judgment for plaintiff affirmed.

Application for writ of error dismissed, 300 S. W. 672.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

R. A. D. Morton, of El Paso, for appellee.

WALTHALL, J.

A statement of the nature and result of this suit by this court will be found in the Southwestern Reporter, volume 291, at page 287, and a like statement by the Commission of Appeals, section A, by Judge W. R. Bishop, on June 4, 1927 (296 S. W. 284), to each of which we refer.

In our former disposition of the case we discussed only the question of jurisdiction of the district court under the Workmen's Compensation Act of this state, and the case is remanded to this court for consideration of "other assignments of error presented on appeal."

The first proposition going to the jurisdiction of the court was decided against appellant's contention by the Commission of Appeals in the opinion above referred to.

It is insisted by appellant that, at the time of the employment of Price, Goetting was not within the Texas act, not then having any one in his employment in Texas. The record shows that Goetting, a resident of Texas, carried insurance with appellant under the Texas law, the policy dating June 1, 1923, and expiring one year thereafter. The record further shows that Price had been in the employ of Goetting in Texas for several years next preceding his arrangement to go to New Mexico, and that his work in New Mexico was not permanent but temporary; Price testifying that on the completion of the New Mexico work he was to return to Texas. Now it is true, as insisted by appellant, that for a few days immediately before Price went to New Mexico to work for Goetting Price was not being paid a daily wage by Goetting. It seems that, while Price was in the general employment of Goetting, and Goetting, a month prior thereto, contemplated sending, and had engaged, Price to go to New Mexico on the roadwork there, and Price contemplated going, there were some ten days prior to January 1, 1924, when Price was not on Goetting's pay roll in Texas or in New Mexico, but that, on January 1st, and before leaving for New Mexico, Price was in Goetting's employ. Goetting testified:

"I wasn't carrying Mr. Price on my Texas pay roll when he was working in New Mexico. I had no pay roll in Texas. * * * No; I wasn't rendering any pay roll to the Texas Employers' on which to base a premium under this policy covering Mr. Price when I was up in New Mexico."

At that time Goetting had a policy of insurance with the United States Fidelity & Guaranty Company to cover the New Mexico construction work, in force at the time of the injury to Price. Price received a compensation for his injury under the New Mexico law from the United States Fidelity & Guaranty Company, and appellant insists that, under the above facts, briefly stated, Price should not be allowed to recover of appellant under the Texas law for the same injury.

The outstanding facts are that, while Price was an employee of Goetting in Texas, Goetting secured the policy of insurance involved here from appellant, and that, at the time of Price's injury, the time period of the policy had not expired. Under provision of our statute, an employee is entitled to compensation under the policy, "even though such injury was received outside of the state." At the time of the employment both Goetting and Price lived in Texas; they were each then in Texas. Goetting's headquarters, at the time of Price's employment, and for some years before, had been, and apparently than was, in Texas. Goetting testified that Price was hired to go to New Mexico a month before he started on the work there. His pay began before he went there. His pay was going on while he was doing nothing; did not hire him expressly for the New Mexico job. "He was in my employ at the time. * * * I was through in El Paso, and was contemplating a job in New Mexico, and I wanted to use him up there."

Under the facts stated in the record, and only briefly outlined here, we have concluded that Price, at the time of his injury, was a Texas employee under Goetting, and was under the protection of Goetting's Texas policy of insurance, if in fact Goetting had a Texas policy in force at that time.

Appellant submits that, at the time Price was employed for the New Mexico work, Goetting, not then having any one in his employment in Texas, was not within the Texas act, and refers us to section 2 of article 8306, R. S. 1925, providing that the law shall not apply to any person having in his employ less than three employees. It is insisted that on January 1, 1924, Goetting did not have any one employed in Texas, and that it is not disclosed that Goetting ever had as many as three employees in Texas at any one time in the past within the period of the policy. It is further insisted by appellant that Goetting did not pay any premium for this insurance.

The record shows beyond controversy the issuance of the Texas policy sued upon, issued by appellant to Goetting to be effective from June 1, 1923, for one year next thereafter.

Under Home Life & Accident Co. v. Orchard (Tex. Civ. App.) 227 S. W. 705 (707), it is immaterial as between Price and appellant whether Goetting paid the premium on the policy. The provisions of a compensation policy and its statement, warranties, and promises do not affect the rights of injured employees, but only the rights of the subscriber and the insurer inter esse. Sheek v. Texas Co. (Tex. Civ. App.) 286 S. W. 336.

After appellant issued its policy of insurance to Goetting, as it had the right to do, and contracted to insure his employees, it is bound by its contract as between it and Goetting's employee, regardless of whether Goetting then or thereafter became a subscriber and entitled to the benefits conferred upon the employers by the Compensation Act. United States F. & G. Co. v. Summers (Tex. Civ. App.) 262 S. W. 247; Employers' Liability Assurance Corporation v. Light (Tex. Civ. App.) 275 S. W. 685. The statute (section 2, part 1, of the Compensation Act [article 8306, § 2, R. S. 1925]) provides that an employer of three or more, at the time of becoming a subscriber, remains a subscriber, although thereafter he may have less than three employees.

The facts show that Goetting had taken out a policy of insurance with the United States Fidelity & Guaranty Company for the protection of New Mexico employees, including Price, and, pursuant to the Compensation Act in force in that state, Price claimed and collected in full his New Mexico insurance under that policy. Appellant submits that Price, having voluntarily submitted himself to the jurisdiction of New Mexico law in the course of his employment in that state, should not be permitted to collect a second time for the same injury, and for that reason the trial judge should have directed a verdict for appellant. The Compensation Act of New Mexico (Laws 1917, c. 83) is found in the record, and section 5 of the act is copied in appellant's brief. That section provides that the act shall be construed as creating a new right and special procedure for the enforcement of the same, and the rights and remedies provided in the act for workmen and other dependents coming under its terms on account of injuries suffered by accident arising out of and in the course of employment of such workmen shall be exclusive of all other rights and remedies of such workmen, at common law or otherwise, and that all other laws and parts of laws relating thereto, or providing damages for injuries, or under which the same are recoverable, otherwise than as in the act provided, in conflict with the act, shall not apply as to the employments, employers, and workmen in cases in which such employers and workmen are bound by the act.

We have found no case in this state in point on the question presented. If we view the question as presenting a waiver by Price of his rights to compensation under the Texas law, such would seem ineffectual to cause a waiver under the provision of section 14, part 1, of our Texas law, which provides that:

"No agreements by any employee to waive his rights to compensation under the law shall be valid."

The New Mexico law is elective, and any waiver of his rights to come under the New Mexico Compensation Law would seem to be no more inclusive of his rights under the Texas law than an agreement to waive which would not be effective, under section 14 above.

We think that insurance taken by an employer for the benefit of his employees against injuries from accident under the Compensation Law of New Mexico, in addition to the insurance under the Texas Compensation Law of this state, and to collect on each, is not contrary to any public policy of this state or interstate comity, as suggested by appellant. We have found no statutory inhibition in this state against such double insurance, nor have we found it to be such by the decision of the courts; while the liability under the Compensation Acts in either state is contractual, the scheme for compensation for injury suffered is more in the nature of a pension than a liability for breach of contract, or damages intact. The effort here in the instant suit is not to enforce the New Mexico Compensation Law. This suit is in a Texas court to enforce a Texas contract under a Texas statute.

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