McCaleb v. Continental Casualty Co.
| Citation | 116 S.W.2d 679 |
| Decision Date | 18 May 1938 |
| Docket Number | No. 7401.,7401. |
| Parties | McCALEB v. CONTINENTAL CASUALTY CO. |
| Court | Supreme Court of Texas |
Kleberg, Eckhardt & Lowe and Fred H. Woodard, all of Corpus Christi, for plaintiff in error.
Keys & Holt, of Corpus Christi, for defendant in error.
This case presents principally two questions: (1) Do municipal corporations come under the provisions of the Workmen's Compensation Law, article 8306 et seq., Revised Civil Statutes, Vernon's Ann.Civ. St., and (2) can a municipal corporation take out an insurance policy in an old line insurance company to protect its employees by insurance against injuries, without complying with the Workmen's Compensation Law?
Eva McCaleb filed this suit against the Continental Casualty Company, as the insurance carrier for the city of Corpus Christi, alleging that it had issued a policy of insurance to said city, whereby it agreed to pay the employees of said city, and their beneficiaries, benefits equal to those provided for in the Workmen's Compensation Law. She sued as the beneficiary of the deceased employee, killed in the line of duty, and while the policy was in force. She sought judgment for the sum of $12 per week for 360 weeks, reduced to a lump sum and discounted at 6 per cent., and for interest. The city was not made a party to the suit. The trial court sustained a plea in abatement filed by defendant. The case was appealed to the Court of Civil Appeals, and the judgment of the trial court was affirmed. 113 S.W. 2d 347. This court granted a writ of error to review the opinion of the Court of Civil Appeals.
The parties will be designated as they were in the trial court.
Plaintiff's main contentions are that the Court of Civil Appeals erred in holding: (1) That municipal corporations come within the statutory definition of employer as contemplated in the Workmen's Compensation Law; (2) that the policy of insurance issued to the city was not applicable to the deceased or his surviving wife; and (3) that the plea in abatement pleaded by defendant was properly sustained.
Section 7 of article 8308, Vernon's Ann. Civ.St., of the Workmen's Compensation Act, reads:
Under section 1 of article 8309 is found the following definition of "employer": "`Employer' shall mean any person, firm, partnership, association of persons or corporations or their legal representatives that makes contracts of hire."
In 1913 the Attorney General's Department of this state advised the Industrial Accident Board that the Workmen's Compensation Law, then recently enacted, did not apply to municipal corporations. Attorney General's Opinions, 1912-1914, p. 437.
In 1926 the question reached this court, and it was first held that the Workmen's Compensation Law applied only to ordinary private corporations, and that the law did not apply to cities, towns, or municipal corporations. City of Tyler v. Texas Employers' Ins. Ass'n, Tex.Com. App., 288 S.W. 409; Id., Tex.Com.App., 294 S.W. 195; see, also Southern Casualty Co. v. Morgan, Tex.Com.App., 12 S.W. 2d 200; Adkinson v. City of Port Arthur, Tex.Civ.App., 293 S.W. 191, writ of error refused; Brooks v. State, Tex.Civ.App., 68 S.W.2d 534, writ of error refused; 45 Tex.Jur., p. 455, § 69, and cases cited. It was also held that by virtue of section 52 of article 3 of our Constitution, Vernon's Ann.St.Const. art. 3, § 52, municipal corporations could not take out a policy of insurance in a mutual insurance company which would require a city to become a member of or stockholder in such insurance company. However, on the other hand, it was held that cities could carry insurance issued by old line companies in favor of their employees, irrespective of the fact that the insurer measured its liability by applicable provisions of the Workmen's Compensation Law. Southern Casualty Co. v. Morgan, Tex.Com.App., 12 S.W.2d 200, Id., Tex.Com.App., 16 S.W.2d 533; Maryland Casualty Co. v. Rutherford, 5 Cir., 36 F.2d 226; 45 Tex. Jur., pp. 455-457, § 69; 30 Tex.Jur., pp. 527-529, § 29.
On November 3, 1936, an amendment to the Constitution of Texas (article 3, § 59) was adopted, Vernon's Ann.St.Const. art. 3, § 59, giving the Legislature the power to enact "such laws as may be necessary to provide for Workmen's Compensation Insurance for such State employees, as in its judgment is necessary or required; and to provide for the payment of all costs, charges, and premiums on such policies of insurance; providing the State shall never be required to purchase insurance for any employee."
It will be noted that the Texas Workmen's Compensation Act was first construed in 1913 by the Attorney General's Department, and then in 1926 by this court, and it was held that the law did not cover cities, towns, or municipal corporations. Since that time the Legislature has been in session many times, and has seen fit to amend other provisions of the law; but the provisions above construed remain unchanged. This court would not be justified in holding now that the law as written applies to cities, towns, and municipal corporations; and the Court of Civil Appeals erred in so holding.
The Continental Casualty Company issued to the city of Corpus Christi an indemnity insurance policy to protect the city "against loss from liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered" by its employees in the course of their employment. A rider, entitled "Voluntary Compensation Endorsement," is attached to the policy. Since this suit turns mainly on the construction of the provisions contained in the rider, we set out practically the entire instrument. The pertinent parts read as follows:
To continue reading
Request your trial
-
Rio Grande Nat. Life Ins. Co. v. Bailey, 2131.
...141, affirmed, 5 Cir., 108 F.2d 136, 125 A.L.R. 1436; Home Ins. Co. v. Springer, Tex.Civ. App., 131 S.W.2d 412; McCaleb v. Continental Cas. Co., 132 Tex. 65, 116 S.W.2d 679; First Texas Prudential Ins. Co. v. Ryan, 125 Tex. 377, 82 S.W.2d 635; National Life Co. v. McKelvey, 131 Tex. 113 S.W......
-
Red Ball Motor Freight v. Employers Mut. Liability I. Co.
..."out of the ownership, maintenance or use of the automobile", and judgment should be rendered for the defendant. 4 McCaleb v. Continental Cas. Co., 132 Tex. 65, 116 S.W.2d 679; Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S.W. 1060; 24 Tex.Jur., 702-11; Lewis v. Ocean Accident, 224 N.Y. 18, ......
-
Pennell v. United Ins. Co.
...374; Piper v. Dennis, Tex.Civ.App., 274 S.W. 307, 308; 24 Tex.Jur., p. 701, § 25. This Court, in the case of McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679, 682, said: 'In construing the language used in a policy, if it is ambiguous or contains inconsistent terms, in order......
-
National Surety Marine Ins. Corp. v. Failing
...terms used in the policy admit of two constructions, the construction favorable to the insured will be adopted. McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679; Commonwealth Bonding & Casualty Co. v. Bryant, 113 Tex. 21, 240 S.W. 893; Brown v. Palatine Ins. Co., 89 Tex. 590......