Middleton v. Texas Power & Light Co.

• Court: Texas Supreme Court
• Writing for the Court: Phillips
• Citation: Middleton v. Texas Power & Light Co., 185 S.W. 556 (Tex. 1916)
• Decision Date: 26 April 1916
• Docket Number: (No. 2744.)
• Parties: MIDDLETON v. TEXAS POWER & LIGHT CO.

185 S.W. 556

MIDDLETON v. TEXAS POWER & LIGHT CO.

(No. 2744.)

Supreme Court of Texas.

April 26, 1916.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Charlie Middleton against the Texas Power & Light Company. From judgment for defendant, plaintiff appealed to the Court of Civil Appeals (178 S. W. 956), which reversed and remanded the case and certified questions to the Supreme Court. Questions answered.

Witt & Saunders and Chas. A. Braun, all of Waco, for plaintiff. Lawther, Pope & Mays and Homer R. Mitchell, all of Dallas, Spell & Sanford, of Waco, Batts & Brooks, of Austin, and Jas. Harrington Boyd, of Toledo, Ohio, for defendant.

PHILLIPS, C. J.

In this case we are called upon to answer seventeen questions certified by the honorable Court of Civil Appeals for the Third District as to the constitutionality of the Act of the Thirty-third Legislature (Acts 33d Leg. c. 179) relating to the liability of employers and compensation of workmen for personal injuries. Apparently every possible constitutional question suggested by the act has been embraced in the certificate, including some which the appellant was in no position to raise.

The Act contains many provisions and is therefore of considerable length. Instead of setting out its different sections, its evident purpose, operation and effect, will be stated to such extent as is necessary.

Its general purpose is to work an important change in the law in regard to the liability of employers for personal injuries to their employees, or for death resulting from such injuries, and the compensation afforded therefor to employees or their beneficiaries. It creates an employers' insurance association to which any employer of labor in the State, with certain exceptions, may become a subscriber. Out of the funds of this association, derived from the premiums upon policies of liability insurance by it issued to subscribing members and assessments authorized against them, if necessary, the compensation provided by the Act as due on account of personal injuries sustained by their employees, or on account of death resulting from personal injury, is to be paid. This compensation, fixed by the Act on the basis of the employee's average weekly wages, accrues to him absolutely upon his suffering any personal injury in the course of his employment which incapacitates him from earning full wages for as long a period as one week, or to his representatives or beneficiaries in the event of his death from the injury, whether or not due to the negligence of the employer or any of his servants or agents; and is protected from all process or claims to the same extent as current wages under existing laws. It is the substitute intended and provided by the Act for damages ordinarily recoverable at common law or by statute on account of injuries suffered by an employee or because of his death, when due to the negligence of the employer or his servants; it being declared by the Act that the employee of a subscribing employer shall have no cause of action against him for damages for personal injuries, nor shall his representatives or beneficiaries in case of his death, except that exemplary damages may be recovered in an ordinary suit by the surviving husband, wife and heirs of any deceased employee whose death is caused by homicide through the wilful act or omission or gross negligence of his employer.

While any employer of labor within the State, with the exceptions provided, may become a subscriber and by complying with the Act be, except as to exemplary damages just noted, exempt from all common law or statutory liability on account of injuries suffered in his service by his employees, by the Act all employers who do not become subscribers, in a suit for damages on account of such injuries, or for death resulting therefrom, are deprived of the common law defenses of the negligence of a fellow servant and assumed risk, and, as an absolute defense, of contributory negligence on the part of the employee, as well; it being provided that the damages in such suits shall be diminished in proportion to the amount of any negligence attributable to the employee, and that no employee shall be deemed guilty of contributory negligence where the violation by the employer of any statute enacted for the safety of employees contributed to his injury or death. It is declared however that in all such actions against a non-subscribing employer, it shall be proved, as necessary to a recovery, that the injury to or death of the employee was due to the negligence of the employer, or some agent or servant acting for him within the general scope of his employment: and that where the injury was caused by the wilful intention of the employee to bring it about, the employer may defend upon that ground.

Wholly excepted from the operation of the Act are employers, — and their employees as well, — operating railways as common carriers, cotton gins, and those engaged in any class of business having in their employ not more than five employees. The Act likewise does not apply to employees who are domestic servants or farm laborers.

Every employer becoming a subscriber to the insurance association is required to give written or printed notice to all employees under contract of employment with him that he has provided for payment by the association of compensation for injuries received by them in the course of their employment.

Under certain conditions an employer holding a policy insuring against his liability, issued by any insurance company lawfully transacting a liability or accident insurance business within the State, shall be deemed a subscriber within the meaning of the Act.

There is also created by the Act and charged with its administration, a board of three members whose duties are defined. In general, its province is the determination of disputed claims arising under the Act. If its decision is not accepted, suit may be brought upon the claim, or be required to be brought, against the association if the employer of the injured or deceased employee was a subscriber at the time of his injury or death, in a court of competent jurisdiction, which, however, shall adjudicate the questions of liability and compensation according to the provisions of the Act.

In brief, the operation of the Act, as to all employers of labor within the State not excepted by its terms, is this:

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 employees, they are exempt from all common law or other statutory liability for personal injury suffered by such employees in their service, except that for exemplary damages where an employee is killed through an employer's wilful 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 employees 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 employee wilfully caused his own injury.

As to employees, this is the effect of the Act:

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 employees 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 employees for injuries resulting in death, except that the surviving husband, wife and heirs of any such deceased employee killed through the wilful act or omission or gross negligence of such employer may maintain an action for exemplary damages on account of his death.

This being the operation of the Act upon employers and employees, the question that commands first attention in the consideration of its constitutionality is, Does it violate any of their fundamental rights? This will be determined in the light of the several questions certified, without setting them out or attempting to answer them separately. As to employers, it is clear that no fundamental right is invaded. The Act leaves them free to adopt its plan of compensation, or remain ungoverned by it. The consequence attached to their not consenting to it, is the denial of the right, existing in common law actions, to interpose the common law defenses of fellow servant, assumed risk, and contributory negligence in suits for the recovery of damages for personal injuries suffered by their employees in the course of their employment. But that is not a vested right or a right of property. Those defenses are but doctrines or rules of the common law. Rights of property which have been created by the common law cannot be taken away by the Legislature. They are protected from destruction by any process except the due process of the law, that is, law in...