Consolidated Underwriters v. Kirby Lumber Co.

• Decision Date: 20 December 1924
• Docket Number: (No. 463-3995.)
• Citation: 267 S.W. 703
• Parties: CONSOLIDATED UNDERWRITERS v. KIRBY LUMBER CO.
• Court: Texas Supreme Court

267 S.W. 703

CONSOLIDATED UNDERWRITERS v. KIRBY LUMBER CO.

(No. 463-3995.)

Commission of Appeals of Texas, Section B.

December 20, 1924.

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

Action by the Consolidated Underwriters against the Kirby Lumber Company, wherein beneficiaries of deceased employé intervened as parties plaintiff. Judgment for defendant was affirmed by the Court of Civil Appeals (250 S. W. 476), and plaintiff brings error. Reversed and remanded.

C. A. Lord, of Beaumont, for plaintiff in error.

G. E. Richardson, of Jasper, and Andrews, Streetman, Logue & Mobley, of Houston, for defendant in error.

STAYTON, J.

Under the allegations of plaintiff's petition, Joe Singletary died January 4, 1920, as a result of injuries inflicted upon him, a month and four days previous to that date, by servants of the Kirby Lumber Company, while he was in the course of his employment in behalf of another corporation, under circumstances entitling him before his death, and his legal beneficiaries after his death, both to recover damages of the Kirby Lumber Company, and to receive compensation under the amended Employers' Liability Act, unless the law disallowed that both recourses might be had. His employer, it is alleged, was carrying insurance with plaintiff in error, Consolidated Underwriters, in accordance with that amendment, and, claim for compensation having been allowed to Singletary against this insurer, it accordingly made certain payments to him and, upon his death, continued periodical payments to the beneficiaries named in the statute.

It then brought this suit against the actual tort-feasor, Kirby Lumber Company, both in its own behalf and that of the beneficiaries, under the provisions of section 6a, part 2, of the amended act above referred to (Comp. St. art. 5246 — 47; Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 47). The beneficiaries intervened, joining in the insurer's amended petition in so far as it pertained to them.

The defendant, Kirby Lumber Company, entered a general demurrer to plaintiff's petition, and general and special demurrers, upon the ground of limitation, to the pleadings of the intervenors. The trial court sustained these demurrers, and the Court of Civil Appeals affirmed its judgment (250 S. W. 476), stating as reasons that the section of the law upon which plaintiff's suit was based is unconstitutional because it involves a subject not expressed in the title to the amended act, and is therefore within the prohibition of section 35, art. 3, of the Constitution and that intervenors' suit was barred by limitation. The plaintiff's case will be considered first.

The judgment of the Court of Civil Appeals, as regards plaintiff, is considered to be erroneous unless sustained by one of several considerations that are presented by the defendant. The first of these involves the constitutional question above mentioned.

Before examining the wording of the title and of the particular section of the act which is relied upon by defendant, it will be useful to deduce from the most important decisions upon the question some familiar principles and points of law that fairly control it in so far as the present case is concerned.

The applicable portion of the cited section of the Constitution reads:

"No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed."

It is well recognized that the purposes of this provision are to advise the Legislature and the people of the nature of each particular bill, so as to prevent the insertion of obnoxious clauses which otherwise might be ingrafted on it and become the law, and to obviate legislation through the combination, upon a composite bill, of the votes of the proponents of different measures included in it, some of which would not pass upon their merits if separately considered. Stone v. Brown, 54 Tex. 342.

But it would be useless and impracticable for the title to express all of the provisions of a particular act and the details of each provision. For, in such a case, this introductory matter would amount to a mere repetition of the legislation itself, and would answer no purpose of abbreviated notice. On the other hand, to embody the various provisions in separate bills would, because of narrow bounds, interfere with the completeness and usefulness of each of them. Breen v. T. & P. R. R. Co., 44 Tex. 305.

As a result, doubtless, of these and other practical difficulties, while constitutional provisions regarding the expression of the subject-matter in the title of bills have always been held mandatory, still they have been interpreted liberally and substantially, and not strictly or literally. Murphey v. Menard, 11 Tex. 673; Austin v. G., C. & S. F. R. R. Co., 45 Tex. 267; Breen v. T. & P. R. R. Co., 44 Tex. 305; State v. Parker, 61 Tex. 267; Gunter v. Texas, etc., Co., 82 Tex. 496, 17 S. W. 840. For like reasons, though there are statements in Adams v. Water Co., 86 Tex. 487, 25 S. W. 605, to the contrary, it has been definitely decided that titles to bills are not subject to the maxim that the expression of one thing is the exclusion of another. Doeppenschmidt v. I. & G. N. R. R. Co., 100 Tex. 532, 101 S. W. 1080.

Requirements as to the scope of titles have been applied in such manner as to obviate, as best may be, the evils and difficulties that have been mentioned. They have quite uniformly been taken to mean that, if the general and ultimate subject of a particular act as a whole is to be found within the wording of the title, the subject thus expressed, because giving reasonable notice of them, will serve to support provisions in the body of the act (among others not necessary to mention) that are components of the general subject; are reasonably implied by it because they have been connected with and appropriate to it in similar laws or by usage; are relevant and germane to it; are necessary for the attainment of it; are reasonably auxiliary to it: are complementary to it; or are reasonable incidents of it, or of its incidents as expressed in the title. Snyder v. Compton, 87 Tex. 377, 28 S. W. 1061; Austin v. G., C., & S. F. R. R. Co., 45 Tex. 267; Stone v. Brown, 54 Tex. 343; Breen v. T. & P. R. R. Co., 44 Tex. 305; Morris & Cummings v. State, 62 Tex. 741; Giddings v. San Antonio, 47 Tex. 553, 26 Am. Rep. 321; Doeppenschmidt v. I. & G. N. R. Co., 100 Tex. 534, 101 S. W. 1080; T. & N. O. R. R. Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857; I. & G. N. R. Co. v. Smith Co., 54 Tex. 12; Davey v. Galveston County, 45 Tex. 298; State v. Parker, 61 Tex. 267; Murphey v. Menard, 11 Tex. 673; G., W. T. & P. Ry. Co. v. Fromme, 98 Tex. 460, 84 S. W. 1054; Borden v. Rice Co., 98 Tex. 508, 86 S. W. 11, 107 Am. St. Rep. 640.

On the other hand, it has been held, with equal uniformity, that particular provisions are not within a given title where no subject at all is expressed in the title; where the ultimate subject expressed and that provided for are plainly different; where the provisions are palpably ulterior or foreign to the title; where they are separate, distinct from, and not germane to the subject expressed; where by no intendment they possess a necessary or proper connection with it; where they are disconnected from it and inappropriate to it; or where the provisions come clearly within the evil to be suppressed. Adams v. Water Co., 86 Tex. 487, 25 S. W. 605; Byrnes v. Sampson, 74 Tex. 83, 11 S. W. 1073; I. & G. N. R. Co. v. Railroad Com., 99 Tex. 334, 89 S. W. 961; City of Fort Worth v. Rosen (Tex. Civ. App.) 203 S. W. 89; Rodgers v. Tobias (Tex. Civ. App.) 225 S. W. 804; M. K. & T. v. Mahaffey, 105 Tex. 394, 150 S. W. 883; National Surety Co. v. Murphy-Walker Co. (Tex. Civ. App.) 174 S. W. 1000; Morrill v. Smith Co., 89 Tex. 552, 36 S. W. 56, and many of the cases already cited.

The title of the amended Employers' Liability Act, and the part of the body of that act upon which the plaintiff's suit depends, may now be quoted and considered in the light of what has been said.

The title to the bill reads:

"An act to amend chapter 179 of the General Laws of the State of Texas passed at the regular session of the Thirty-Third Legislature, entitled: `An act relating to employers' liability and providing for the compensation of certain employés, and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for deaths resulting from such injuries, and to provide and determine in what cases compensation shall be paid, and to make the payment thereof more certain and prompt by the creation of an insurance association to insure and guarantee such payments and of an industrial accident board for the investigation of claims and for the adjudication thereof for consenting parties, fixing the membership and powers of said board and its compensation and duties, and the method of its appointment, and the term of office of its members and fixing also the powers, duties and liabilities of said insurance association and the extent of control over same to be exercised by the commissioner of banking and insurance, and providing also for the insurance of payments of compensation to employés by certain other insurance companies and organizations, and declaring an emergency,' and declaring an emergency." Acts 35th Leg. c. 103.

The bill consists of some 88 sections, among which is the provision here in question, which reads:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employé may at his option proceed either at law against that person to recover damages or against the association for compensation...