Rice v. Garrett

• Decision Date: 18 April 1917
• Docket Number: (No. 1144.)
• Parties: RICE v. GARRETT.
• Court: Texas Court of Appeals

194 S.W. 667

RICE v. GARRETT.

(No. 1144.)

Court of Civil Appeals of Texas. Amarillo.

April 18, 1917.

Rehearing Denied May 2, 1917.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Suit by H. R. Garrett against W. M. Rice. Judgment for plaintiff, and defendant appeals. Affirmed.

Veale & Lumpkin, of Amarillo, for appellant. L. C. Barrett and J. N. Browning, both of Amarillo, for appellee.

BOYCE, J.

This suit was brought by appellee, Garrett, against appellant, Rice, to recover damages, in the sum of $20,000, for personal injuries alleged to have been sustained by appellee while working for appellant, who was a contractor, engaged in the erection and repair of buildings, employing some 15 or 20 men. Appellee alleged that, under the direction of appellant's foreman, he and three other men attempted to carry a heavy timber over ground covered with rubbish, and while so engaged wrenched and strained his back, dislocating the vertebra, which resulted in permanent injury. Appellee alleged further that said piece of timber was too heavy for four men to carry safely over the ground where they were ordered to carry the same, and that protest was made to the foreman in charge of the work to that effect, but who assured the men that they could carry the timbers and commanded them to proceed to do so; and that defendant was negligent in requiring the plaintiff to lift and carry said timber under the conditions existing. A trial resulted in judgment for plaintiff, from which this appeal is taken.

The appellant, Rice, filed a plea in abatement, in which it was alleged that he was a "subscriber" under the Workmen's Compensation Act, Vernon's Sayles' Civil Statutes, articles 5246h to 5246zzzz, having in accordance with the provisions of article 5246yyyy procured insurance with the American Indemnity Company to protect his employés in lieu of becoming a member of the Texas Employers' Insurance Association, provided for by said act; that appellant had given appellee the notice required by said law that he had provided for compensation for injuries to his employés and had complied with the law so as to entitle him to the benefits thereof. Wherefore, he alleged that under the provisions of article 5246i he was not liable to suit for damages resulting from the alleged injury. It was shown that appellant, at the time of the accident, had a policy issued by the American Indemnity Company, providing the insurance referred to in article 5246yyyy, and the question presented for decision on the plea in abatement was whether it was necessary for appellant, in order to escape personal liability for the alleged damages, to show that Garrett had notice of such fact, and whether he in fact did have notice.

Appellee was a day laborer and had begun work for appellant only on the morning of the alleged accident. He was not given any personal written notice of the fact that appellant had taken insurance under the act, and the preponderance of the testimony seems to be that no written or printed notices to this effect were posted on the premises where the work was being done. Appellee had worked for appellant occasionally before this time; the last occasion before this being in November, 1915, prior to the date of the alleged accident on January 31, 1916, at which time appellee worked for appellant about 36 hours at the courthouse building at Vega, Tex. He also worked for appellant for a few days once before on such building and also on two other buildings prior to the time he worked on the courthouse at Vega; the length of time he worked on these jobs not being shown. Appellant testified that he had notices of the fact that he had provided insurance under the compensation act posted up at each of these premises other than the premises at which the accident occurred, though some of the employés working on the Vega courthouse denied having seen any notices there. The appellee denied that he had ever seen any notices posted on any of the premises where he worked for appellant, and testified that he did not know that Rice had insurance. A few days after the accident, appellee inquired of appellant, Rice, if he did not have insurance. On trial of the plea in abatement, with the case on its merits, the court submitted the following special issue to the jury:

"Did the plaintiff receive written or printed notice before the said plaintiff was injured, if he was injured, to the effect that defendant had provided for payment of compensation, etc.?"

The jury answered this issue in the negative, and the court thereupon overruled the plea in abatement.

Appellant, by his first six assignments, the tenth assignment, and twentieth assignment, contends that no notice to appellee that appellant had provided for compensation for injury under the act was necessary; and by his eighth and ninth assignments complains of the action of the court in limiting the issue of notice as submitted to written or printed notice, and refusing to submit an issue as to whether the plaintiff "knew from any source, prior to the time he went to work for defendant, that the defendant had such insurance."

A consideration of the Workmen's Compensation Act referred to, and the analysis thereof, as found in the opinion of the Supreme Court, in the case of Middleton v. Texas Power & Light Co., 185 S. W. 556, discloses, we think, that it was the intention of the Legislature to make it what is commonly known as elective, as to the employer and also the employé, in a limited sense. Many states have in recent years adopted legislation of this character, and, on account of the radical change made by the provisions of such acts in the rights and liabilities of employer and employé, as determined by the prevailing principles of common law and statutory law in force prior thereto, there was evidently some doubt in the minds of the legislators and of the courts as to the constitutionality of a law that would be compulsory. But it was generally recognized that, if the parties were given the opportunity of election or rejection of the provisions of the act, there would then be no constitutional objection, because upon such election the provisions of the law would become a part of the contract of employment and the rights of the parties resulting might properly be governed thereby. Honnold on Workmen's Compensation, §§ 20, 21; Workmen's Compensation Acts, a Corpus Juris Treatise Recently Issued, §§ 2-6; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412; Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. S. 942. It is stated by Honnold that of 34 acts of the several states and territories of the United States 25 are elective as to private employers and 9 compulsory. The Texas act is strictly elective as to the employer, but election as to the employé is only as to acceptance or rejection of employment by one who may or may not be a subscriber. If the employment is accepted from a subscriber with the notice provided by law that the employer is a subscriber, the employé then has no further election—different in this respect from the statutes of some states which provide that even then the employé may give the employer written notice that he will not be bound by the provisions of the compensation act, and in such instances it will not be operative as to him. Ordinarily, of course, as under our statute, there is no difficulty in ascertaining whether the employer has elected to become subject to the provisions of the act; for, of necessity, his election is evidenced by records from which the fact may be readily ascertained and proven. The matter of evidencing the election of the employé, however, it will be readily seen, presents more practical difficulties. The employés of a particular employer are changing from time to time, many may work but a day or two, others for years, and usually the contract of employment is verbal and most of its terms implied. The compensation acts of many of the states provide that unless the employé, when he accepts service, gives written notice himself that he will not be bound by the provisions of the compensation act, he will be held to have waived his right to recover under the common law. The statutes of other states provide that the employer shall give notice to the employé of the fact that he himself has taken advantage of the provisions of the act, and if after such notice the employé accepts employment, or continues in the service, he will be conclusively held to have elected also to be subject to the act. Some statutes provide for the specific manner of giving notice; for instance, posting thereof on the premises of the employer. Daniels v. Charles Boldt Co. (W. Va.) 88 S. E. 613. In all elective acts, however, there is some provision of the statute prescribing the manner in which the employé is put upon his election. These provisions are necessarily important because the election enters into the contract of employment, and the liability is widely different in case an employé has accepted under the act, from that in the event he has not.

While article 5246i of our statutes provides absolutely that "the employés of a subscriber shall have no right of action against their employer for damages for personal injuries * * * but * * * shall look for compensation solely to the Texas Employés' Insurance Association," articles 5246x and 5246xx provide specifically that every subscriber upon securing a policy shall give notice in writing or print to his employés that he has provided for payment of compensation for injuries with the association; also, that upon ceasing to be a subscriber he shall give like notice to his employés, and also that a subscriber shall give such notice to all persons with whom he is about to enter into a contract of hire. While there is no specific statement in the statute of the result of the failure on the part of the employer to give the notice, it was the evident intent of the...