Middleton v. Texas Power & Light Co.

• Decision Date: 20 January 1915
• Docket Number: (No. 5408.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 178 S.W. 956
• Parties: MIDDLETON v. TEXAS POWER & LIGHT CO.
• Court: Texas Court of Appeals

Page 956

178 S.W. 956

MIDDLETON v. TEXAS POWER & LIGHT CO.

(No. 5408.)^†

Court of Civil Appeals of Texas. Austin.

January 20, 1915.

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by Charles Middleton against the Texas Power & Light Company. Judgment for defendant, dismissing the action, and plaintiff appeals. Reversed and remanded.

Witt & Saunders, Chas. B. Braun, and J. E. Yantis, all of Waco, for appellant. Lawther, Pope & Mays and Homer R. Mitchell, all of Dallas, for appellee. Spell & Sanford, of Waco, and Gregory Batts & Brooks, of Austin, for Industrial Board.

KEY, C. J.

Appellant brought this suit against appellee, seeking to recover $5,000 as damages for injuries sustained by him while in the employ of appellee, which injuries he alleged were caused by appellee's negligence. Appellee filed a plea in abatement showing that it, as an employer, had complied with the requirements of the Employers' Liability Act enacted by the Thirty-Third Legislature, and asked that the suit be dismissed. In a supplemental petition appellant excepted to the plea referred to, charging that the Employers' Liability Act was unconstitutional and void. The trial court overruled the exceptions, sustained the plea in abatement, and dismissed the cause of action, and the appellant has prosecuted an appeal.

If that portion of the Employers' Liability Act which prescribes that when an employer has complied with the requirements of the act his employés shall have no right of action against him for damages for personal injuries is unconstitutional and void as to nonconsenting employés, then the trial court committed error when it sustained the plea in abatement. The act referred to is too voluminous to be copied in full in this opinion, and we deem it sufficient to copy from appellant's printed argument the following synopsis of it:

"Chapter 179 of the General Laws of the state of Texas passed by the Thirty-Third Legislature at its regular session, page 429, approved April 16, 1913, effective September 1, 1913, is divided into four parts.

"Section 1, pt. 1, abolishes certain common-law defenses available to the employer in personal injury suits brought by an employé. Section 2 declares that the provisions of the act shall not apply to actions to recover damages for personal injuries sustained by certain classes of employés. Section 3 takes away any and all rights of action by employés of subscribers against their employer for damages for personal injuries, and provides that they shall look for compensation solely to certain insurance associations or companies, which, by subsequent terms of the law, the employer is allowed to contract with for the benefit of such employés. Section 4 excludes employés from participating in the benefits of the insurance organization, if their employers are not subscribers, and also declares their constitutional and common law right to bring suits against their employers. Section 5 relates solely to the recovery of exemplary damages. Sections 6 to 13 relate to the scale of compensation to be paid to the injured employé. For the purposes under consideration, it is sufficient to note that section 6 provides that no compensation shall be paid for an injury which does not incapacitate the employé for a period of at least one week from earning full wages; that section 7 makes provision for furnishing, during the first week, of reasonable medical aid, hospital services, and medicine; that section 10 fixes a maximum and minimum amount to be paid weekly to an injured employé during a maximum period of time, while incapacity for work is total; that section 11 has the same character of restrictions, while the capacity for work is partial; that section 12 provides for certain compensation for certain specific injuries. By section 14 it is provided that no agreement of any employé to waive his rights to compensation under this act shall be valid.

"Part 2 of the act creates an Industrial Accident Board, with state-wide jurisdiction of the subject-matter presented in the act. For the purposes under consideration it is sufficient to note, by section 4 of part 2, it is provided that the board may require any employé, claiming to have sustained injury, to submit himself to a physical examination, and that a refusal so to do shall deprive him of the right to compensation during the continuance of such refusal; that section 5 provides that, in the event an interested party is not willing to abide the final ruling and decision of the board on any disputed claim, he may sue on such claim, or may require suit to be brought thereon in some court of competent jurisdiction, and that, in such suit, the rights and liabilities of the parties thereto shall be determined by the provisions of this act; that such suit shall be against the association and the recovery shall not exceed the maximum of compensation allowed under the provisions of this act.

"By part 3, the `Texas Employers' Insurance Association' is created a body corporate, with powers provided for in subsequent sections of the act. Sections 19 and 20 of the act provide that subscribers shall give notice in writing or print to all persons under contract of hire with him, and to all persons about to enter into a contract of hire with him, that he has provided for payment of compensation for injuries to employés by the association.

"Part 4 defines the terms used generally in the act. Among other terms thus defined is `association,' which is declared to mean the `Texas Employers' Insurance Association,' or any other insurance company authorized under this act to insure the payment of compensation to injured employés, or to the beneficiaries of deceased employés. `Subscriber' is also defined to mean, `any employer who has become a member of the association by paying a year's premium in advance and received the receipt of the association therefor.' Section 2 of part 4 grants insurance companies, other than the Texas Employers' Association, the right to insure the liability to pay the compensation provided for by the act, and imposes certain duties upon such companies. Section 4, pt. 4, provides that, should any `part' of this act be for any reason held to be invalid or inoperative, no other part or parts shall be affected thereby, and if any exceptions to, or limitations upon, any general provision herein contained shall be held to be unconstitutional or invalid or ineffective, the general provisions shall, nevertheless, stand effective and valid as if it has been enacted without exception or limitation."

The counsel who represent appellant have filed well-prepared printed brief and argument, presenting quite a number of constitutional objections to the validity of the statute in question. Counsel for appellee, in printed brief and argument, manifesting equally as much ability and research, have undertaken to answer all the objections referred to; and, in addition to this valuable assistance, the respective counsel made able oral arguments when the case was submitted.

This court has attempted to give the case that careful consideration which its importance demands, and the writer of this opinion has read every American decision construing employers' liability or workman's compensation acts cited by counsel or otherwise found. In some of the states, if not in all, there seems to be great necessity and demand for legislation upon the subject referred to; and, while this court is not required to commit itself upon any question of legislative policy, still we feel that it is not improper to say that the evils sought to be cured by such legislation are widespread and of such a nature as to justify the best efforts of statesmanship, in order that a law may be enacted which will afford substantial remedy without exceeding constitutional limitations.

Several of the states have already dealt with the question, and some of the provisions of their statutes, and the decisions construing them, may hereafter be referred to.

We have reached the conclusion that so much of the statute here involved as undertakes to deprive an employé of what otherwise would be his cause of action against his employer is unconstitutional and void; but as the jurisdiction of this court is not final, and as the case will go to the Supreme Court, we shall not undertake to decide other constitutional questions. Our reason for holding that the provision of the statute referred to is unconstitutional is based upon the fact that it leaves it optional as to the employer, and makes it compulsory as to the employé when the employer has elected to avail himself of the benefits of the statute. The federal Constitution declares that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and our state Constitution, in section 3, art. 1, in general terms declares the equal rights of men. Section 19, art. 1, reads:

"No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."

The Constitution also vests in the Legislature the exclusive power to make laws, and therefore that body has no power to delegate legislative authority to any private person. Undoubtedly, the statute here involved is optional as to the employer — he has his choice and may or may not become a subscriber, pay premiums, obtain insurance for the benefit of his employés, and thereby release himself from what would otherwise be his liability to such employés. It is true that if he does not pursue that course he loses some of his common-law defenses, but the fact remains that he has an option and may choose between two laws concerning himself and his employés and fixing their respective rights.

We think it is also quite clear that the statute is compulsory as to the employé,...