Kampmann v. Cross

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Kampmann v. Cross, 194 S.W. 437 (Tex. App. 1917)
• Decision Date: 28 March 1917
• Docket Number: (No. 5807.)
• Parties: KAMPMANN et al. v. CROSS.

194 S.W. 437

KAMPMANN et al. v. CROSS.

(No. 5807.)

Court of Civil Appeals of Texas. San Antonio.

March 28, 1917.

Rehearing Denied April 25, 1917.

Appeal from Seventy-Third District Court, Bexar County; W. F. Ezell, Judge.

Action by Jessie Cross against Elizabeth S. Kampmann. On suggestion of defendant's death Ike S. Kampmann and another, as independent executors of her will, were made defendants. Judgment for plaintiff, and defendants appeal. Affirmed.

Kampmann & Burney and Terrell & Terrell, all of San Antonio, for appellants. Sylvan Lang, John Sehorn, and B. A. Greathouse, all of San Antonio, for appellee.

FLY, C. J.

This suit was instituted by appellee for damages alleged to have accrued to her by reason of the loss of a hand while she was in the employment of Mrs. Elizabeth S. Kampmann, in the laundry department of the Menger Hotel, in the city of San Antonio. The grounds of negligence were in furnishing a defective mangle used in the laundry, which defect caused appellee's left hand to be caught and so mangled that it had to be amputated. The cause was submitted to a jury on special issues, and on the answers judgment was rendered in favor of appellee for $10,000. Before the cause was tried Mrs. Kampmann died, and her sons, two of whom, Ike S. Kampmann and John Herman Kampmann, were independent executors of her will, were made parties.

The evidence showed that appellee was injured by a defective mangle negligently furnished by appellants, and thereby lost her left hand. She was in the employ of appellants and earned her livelihood by manual labor.

Through the first, second, third, and fourth assignments of error appellants assert the proposition that the district court did not have original jurisdiction of this cause, but that, under the Employers' Compensation Act passed by the Thirty-Third Legislature (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), the Industrial Accident Board had original jurisdiction.

The act in question was passed in 1913, and its objects, aims, and requirements are fully discussed by the Supreme Court in answer to certified questions in the case of Middleton v. Texas Power & Light Company, 185 S. W. 556. The operation of the act as applied to employers is thus summarized in that opinion:

"1. They may, at their election, become subscribers under the act, or what may be termed consenting members to its general scheme of liability and compensation, or remain without its pale.

"2. If they become subscribers and give the required notice to that effect to their employés, they are exempt from all common-law or other statutory liability for personal injury suffered by such employés in their service, except that for exemplary damages where an employé is killed through an employer's willful act or omission or gross negligence, which may be defended against as under existing law.

"3. If they do not become subscribers, they are amenable to suits for damages recoverable at common law or by statute on account of personal injuries suffered by their employés in the course of their employment, and are denied the right of making what constitute the common-law defenses thereto. In such a suit, however, no recovery may be had against an employer except upon proof of his negligence, or negligence on the part of some agent or servant acting within the general scope of his employment, or where the employé willfully caused his own injury."

The following is the summary therein of the requirements of the law as applied to employés:

"1. They are at liberty to work or not to work for employers who are, or who may become, subscribers under the act.

"2. If they enter the service of a subscribing employer, or remain in his service after written or printed notice given by him that he is such an employer, and are injured in the course of their employment, a stated compensation, based upon their average wages, is paid them therefor, or to their representatives or beneficiaries in the event of death from the injury, without regard to whether the employer is liable therefor as at common law, and therefore without the necessity of proving negligence, through an agency provided by the act as the means of insuring such payment.

"3. Such employés as are injured in the service of subscribing employers who comply with the act are denied all right of action therefor against such employers, as are the representatives and beneficiaries of deceased employés for injuries resulting in death, except that the surviving husband, wife and heirs of any such deceased employé killed through the willful act or omission or gross negligence of such employer may maintain an action for exemplary damages on account of his death."

The Supreme Court held the act constitutional. The act is embodied in Vernon-Sayles' Tex. Civ. Stats. in articles from article 5246h to article 5246zzzz, inclusive.

It will be noted that, in order to obtain the benefits of the act employers must become subscribers or consenting members, and after becoming subscribers or consenting members, in order to obtain the exemptions provided for in case of injury to an employé in their service, they must give the notice required by the statute to the employé. That requirement is that written or printed notice must be given all employés that the employer is a subscriber, and that he has provided for payment by the association of compensation to the employé for injuries received by him in the course of his employment. The printed or written notice to the employé is the condition precedent to the benefits of the bill being appropriated by the employer. The employé is being deprived by the act of the right of obtaining redress for injuries in the courts of the state, and in order to do this a certain method of procedure is prescribed by the law. It must be in case he remains in the service of the employer after notice given as required by law.

While not directly passing upon the absolute necessity of the employer giving the statutory notice in order to obtain the protection therein provided for, the constant repetition of the necessity of notice clearly shows in the Middleton Case that it is the opinion of the Supreme Court that notice is absolutely essential. The status of the employé is fixed by the notice, and he can only escape the results of the act by leaving the employment of the subscriber. He has no choice, and cannot, as is the case in Massachusetts herein cited, retain his right under the common law by notice to the employer. The right to elect as to whether he would or would not retain his rights under the common law seems to be the pivotal point upon which the case was decided of Young v. Duncan, 218 Mass. 346, 106 N. E. 1. Under the Massachusetts statute it is provided that:

The employé "shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right."

The Supreme Judicial Court of Massachusetts held that the plain and absolute provision of the statute was not dependent upon any other condition or circumstance. In Massachusetts notice is required of the employé, in Texas of the employer, and if it was essential that the employé should give notice to retain his common-law status, it must be as essential in Texas for the notice to be given by the employer in order to destroy such common-law right. The Massachusetts case is relied on by appellants to sustain the proposition that notice by the employer was not essential, but the opposite conclusion, it seems, should be drawn from the decision.

In the case of Daniels v. Boldt (W. Va.) 88 S. E. 613, and Bernard v. Traction Co., 188 Mich. 504, 154 N. W. 565, cited by appellants, it is held positively and directly that the employé is entitled to notice and without it he cannot be deprived of his common-law rights. In the West Virginia case it was held that it was absolutely necessary to show notice as required by the statute for the employer to avail himself of the law known as the "Workmen's Compensation Act." The Michigan case is to the same effect. In those states notice by posting is recognized by the statute, but in Texas the statute is silent as to how the notice shall be given; the only requirement being that it shall be written or printed.

The plea in abatement was properly overruled. Appellee had the right to bring her suit for damages in the district court, and if appellants then desired to defend on the ground that Mrs. Kampmann had brought herself within the terms of the Texas Employers' Compensation Law, she could do so, and it then became a question of fact as to whether she had complied with the law so as to be a subscriber thereunder. The answer to the question was reached, as it should have been, by the verdict of a jury.

In the Michigan cases cited by appellants it was held that the employé could not take advantage of the want of notice on the part of the employer, because the law peremptorily demanded that he give notice to his employer at the time of his employment that he would retain his common-law rights. No court has held, so far as we have ascertained, that where notice is required by law that it is not essentially necessary. We can readily see that there might be actual notice which might serve the purpose of written or printed notice, but to comply with the Texas statute there must be notice.

The Texas law does not recognize the giving of notice by posting, and we are not prepared to hold that mere posting in the place of business would as a matter of law be notice. It might under certain circumstances be sufficient to show that an employé had actual notice, while under other circumstances it might be insufficient to convey notice to the employé. The posting of notices might be sufficient to carry the question of notice to the jury, but could not be held notice by the...