Magnolia Petroleum Co. v. Turner

• Decision Date: 20 November 1933
• Docket Number: No. 4-3197.,4-3197.
• Citation: 65 S.W.2d 1
• Parties: MAGNOLIA PETROLEUM CO. v. TURNER.
• Court: Arkansas Supreme Court

Page 1

65 S.W.2d 1

MAGNOLIA PETROLEUM CO. v. TURNER.

No. 4-3197.

Supreme Court of Arkansas.

November 20, 1933.

Appeal from Circuit Court, Clark County; Dexter Bush, Judge.

Action by Connie Turner, by next friend, C. T. Turner, against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals.

Reversed, and cause of action dismissed.

Cockrill, Armistead & Rector, of Little Rock, for appellant.

J. H. Lookadoo and M. Rountree, both of Arkadelphia, for appellee.

JOHNSON, Chief Justice.

This is an action seeking recovery for an alleged common-law tort, and arose under the following circumstances: Appellee Connie Turner is a minor and a resident of the state of Arkansas. Appellant Magnolia Petroleum Company is a Texas corporation, but is authorized and doing business in this state wherein proper service of summons was had upon it. On all material issues the testimony presented is not in dispute and it may be summarized as follows:

In July, 1931, appellee was employed by appellant to perform manual labor for it in and around Kilgore, in the state of Texas. In pursuance of the contract of employment, appellee began the discharge of his duties and, while being transported by appellant from Kilgore to his place of work on August 4, 1931, the truck on which appellee was being transported was negligently and carelessly wrecked by the driver, and appellee was seriously and permanently injured. The contract of employment, the service to be rendered thereunder by appellee, and the injury received by him, all occurred in the state of Texas.

The principal defense offered by appellant was to the following effect:

That under the laws of the state of Texas, on the date of the contract of employment and on the date of the injury, there was no common-law liability for torts existing in favor of appellee and against appellant. The uncontradicted testimony shows that on the date of employment and on the date of the injury appellant was a subscriber under the Texas Employers' Liability and Workman's Compensation Insurance Law, and that appellee had served no notice upon it reserving his rights to prosecute a common-law action for tort at the time or subsequent to his employment.

The controlling question here presented for adjudication is whether or not the Texas Workmen's Compensation Laws afford an exclusive remedy under the circumstances of this case. Article 8306 of Vernon's Annotated Civil Statutes Texas, section 3, in part, provides: "The 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 3a of article 8306, cited supra, reads as follows: "An employee of a subscriber shall be held to have waived his right of action at common law or under any statute of this State to recover damages for injuries sustained in the course of his employment if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within five days of notice of such subscription. An employee who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five days after its delivery to his employer or his agent. Any employee of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives have his or their cause of action for such injuries as now exist by the common law and statutes of this State, which action shall be subject to all defenses under the common law and statutes of this State. (Acts 1917, p. 269.)"

Section 3c of article 8306 provides: "From and after the time of the receipt by the Industrial Accident Board of notice from any employer that the latter has become a subscriber under this law, all employees of said subscriber then and thereafter employed, shall be conclusively deemed to have notice of the fact that such subscriber has provided with the association for the payment of compensation under this law. If any employer ceases to be a subscriber he shall on or before the date on which his policy expires give notice to that effect to the Industrial Accident Board, and to such subscribers' employees by posting notices to that effect in three public places around such subscribers' plant. (Acts 1923, p. 384.)"

In the case of Castleberry v. Frost-Johnson Lumber Company of Texas (Tex. Civ. App.) 268 S. W. 771, 772, the Texas court held that the Workmen's Compensation Act, heretofore referred to and cited, afforded an exclusive remedy to all employees against subscribing employers, and used the following language in support thereof: "If the definition quoted is the correct meaning of the term `damages,' then we must hold that the Legislature used it in that sense, intending to bar all actions against the...