City of Tyler v. Texas Employers' Ins. Ass'n

• Decision Date: 17 November 1926
• Docket Number: (No. 701-4626.)
• Citation: 288 S.W. 409
• Parties: CITY OF TYLER v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Supreme Court

Page 409

288 S.W. 409

CITY OF TYLER v. TEXAS EMPLOYERS' INS. ASS'N.

(No. 701-4626.)

Commission of Appeals of Texas, Section B.

November 17, 1926.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the Texas Employers' Insurance Association against the City of Tyler. A judgment of dismissal was reversed, and the cause remanded by the Court of Civil Appeals (283 S. W. 929), and defendant brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Troy Smith, of Tyler, for plaintiff in error.

Lawther, Pope, Leachman & Lawther, of Dallas, and T. G. Pollard and Bullock & Ramey, all of Tyler, for defendant in error.

SPEER, J.

Are incorporated cities and towns in this state within the terms of our Workmen's Compensation Act? This is the sole question raised by the application for a writ of error to the decision of the Court of Civil Appeals for the Sixth District holding that they are. 283 S. W. 929. An examination of the act in part is necessary.

Article 8306, Rev. Civ. Stat. 1925, is in part as follows:

"Sec. 1. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:

"1. That the employee was guilty of contributory negligence.

"2. That the injury was caused by the negligence of a fellow employee.

"3. That the employee had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employee to bring about the injury, or was so caused while the employee was in a state of intoxication.

"4. In all such actions against an employer who is not a subscriber, as defined hereafter in this law, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.

"Sec. 2. The provisions of this law shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers, ranch laborers, nor to employees of any firm, person or corporation having in his or their employ less than three employees, nor to the employees of any person, firm, or corporation operating any steam, electric, street, or interurban railway as a common carrier. Any employer of three or more employees at the time of becoming a subscriber shall remain a subscriber subject to all the rights, liabilities, duties and exemptions of such, notwithstanding after having become a subscriber the number of employees may at times be less than three."

It will be noticed the act in the first place covers actions for damages for personal injuries sustained by an employé in the course of his employment or for death resulting from personal injury, whether the employer is a subscriber under the act or not. Within its scope it abolishes the defenses of contributory negligence, negligence of a fellow servant, and assumed risk of injury incident to the employment. It does require, however, that, in all actions against an employer who is not a subscriber as defined by the act, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant acting within the general scope of his employment. It cannot be doubted, in the absence of some constitutional provision, that the Legislature has the power thus to fix the rights and liabilities of parties to such contracts of employment. Honnold Work, Comp. vol. 1, p. 68, note 58. The whole scheme of the act as to contracts of employment coming within its terms is a departure from the common-law rules governing such relation. It dispenses with the necessity of showing negligence upon the part of the employer or his agents and proceeds upon the theory that society is best served by making industry bear the loss sustained in injuries to, or the death of, its workmen, in the course of their employment; that such items are a part of the cost of production. The act is a substitute for the rule of the common law in those cases of eligibles who accept its terms and comply with its provisions. The employer assents by becoming a subscriber, but the employé may reserve his right of action at common law or under any statute by giving timely notice of such intention. Otherwise, the act specifically declares that:

"Employees of a subscriber and the parents of minor employees shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employer or his agent, servant or employee for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for." Section 3.

It contemplates that the employer, while a subscriber under the act, shall be "subject to all the rights, liabilities, duties, and exemptions of such" act.

It will be thus seen that the act provides a radically different method of compensating injuries received in industrial accidents from that provided by the common law, and, what is extremely important in the present inquiry, creates a right of recovery with the attendant liabilities, where no cause of action had previously existed. We refer to the right given by the act to compensation where the employer is not shown to be guilty of negligence.

There can be no doubt but that it is competent for an ordinary employer, whether an individual or a private corporation, to accept this scheme of compensation and of course to agree to all its terms. This is the simple right of contract. But whether or not it is competent for an incorporated city or town to enter into such scheme and make such agreement remains to be seen.

The act defines the terms "employer," "employé," and "subscriber," and it may be admitted that its language is broad enough to include incorporated cities and towns within its scope. The act, however, does not specifically include municipal corporations. The most that can be said is that it is a matter of ascertaining the intention of the Legislature with respect to including them. The intention of the Legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict language of the statute. Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the act. Russell v. Farquhar, 55 Tex. 355; Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex. 298; Edwards v. Morton, 92 Tex. 152, 46 S. W. 792. A matter which is within the obvious purpose and meaning of the statute is as much within the statute as if it were within the letter. Conversely, a thing which is not within the intent and purpose of the statute is not within the statute, though within its letter. Lewis Sutherland Stat. Const. vol. 2, § 379, p. 730.

Ordinarily words are used in their common acceptation and should be given that meaning unless a contrary intention appears. The ordinary meaning of the word "corporation" is private corporation, and the use by the Legislature of the word "corporation" in the act under consideration should be held to refer only to private corporations, unless it can be said the larger use of the word were intended. This rule of construction finds abundant authority in the limited powers of municipal corporations. They possess only such powers as are expressly conferred or necessarily implied in their charter. The Legislature too has shown a disposition to treat private corporations and municipal corporations as separate things. They are dealt with under separate titles in the statutes. The rule itself has been followed and approved by the United States Supreme Court. East Oakland v. Skinner, 94 U. S. 255, 24 L. Ed. 125. Our own Supreme Court has held the same. In Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250, in construing the old death statute, it held that the word "person" includes a private corporation, and the statute was treated as though it had expressly named private corporations. And afterwards, in Searight v. City of Austin (Tex. Civ. App.) 42 S. W. 857, it was held the statute did not apply where death was caused by the negligence or wrongful act of a municipal corporation. A writ of error was refused to this decision. While in Elliott v. City of Brownwood, 106 Tex. 292, 166 S. W. 1129, the Supreme Court, through Chief Justice Brown, made clear that this statute did not cover a death through the wrongful act, negligence, or the like, of a municipal corporation. The statute itself has been since changed. Rev. Civ. Stat. 1925, art. 4671. The same rule of construction has been announced elsewhere. Cedar County v. Johnson, 50 Mo. 225; Commonwealth v. Beamish, 81 Pa. 389; Campbell v. Paris & D. R. Co., 71 Ill. 611.

In 1913, in an opinion by the Attorney General's department written by First Assistant Attorney General, now Chief Justice, Cureton (Atty. Gen. Op. 1912-1914, p. 437) the Industrial Accident Board was advised that chapter 179, Acts of the Thirty-Third Legislature, the act under consideration, had no application whatever to municipal corporations. That opinion reviews at some length the history of such legislation, and points out that the usual practice of legislative bodies, followed in this country and in foreign countries, has been to specially include municipal corporations when it was desired that the act should cover municipal corporations. Our act, which is patterned after the Massachusetts...