Rogers v. Traders & General Ins. Co.

• Decision Date: 15 May 1940
• Docket Number: No. 2310-7496.,2310-7496.
• Citation: 139 S.W.2d 784
• Parties: ROGERS v. TRADERS & GENERAL INS. CO.
• Court: Texas Supreme Court

139 S.W.2d 784

ROGERS v. TRADERS & GENERAL INS. CO.

No. 2310-7496.

Commission of Appeals of Texas, Section A.

May 15, 1940.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Proceeding for compensation under the Workmen's Compensation Act by J. O. Rogers, employee, opposed by George Kojan, doing business as the New York Bakery, employer, and the Traders & General Insurance Company, insurance carrier. A judgment for the employee against the insurance carrier on appeal from the Industrial Accident Board's order denying the claim was reversed and judgment denying the claim rendered by the Court of Civil Appeals, 119 S.W.2d 679, and claimant brings error.

Judgment of the Court of Civil Appeals affirmed.

Houtchens & Houtchens, Ardell M. Young, and J. Harold Craik, all of Fort Worth, for appellant.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Saunders & Williams, of Dallas, for appellee.

HICKMAN, Commissioner.

This is a Workmen's Compensation case. The Industrial Accident Board denied the claim of plaintiff in error, J. O. Rogers, for compensation; the district court rendered judgment in his favor against defendant in error for $7,398.39 as a lumpsum settlement for total incapacity; and the Court of Civil Appeals reversed that court's judgment and rendered judgment that he take nothing. Traders & Gen. Ins. Co. v. Rogers, 119 S.W.2d 679.

The policy of compensation insurance was issued by defendant in error to George Kojan, doing business as New York Bakery. Rogers received his injuries while repairing and replacing some floor scales in the dough-mixing room of the bakery. He had been working for the bakery for several months prior to receiving his injuries. It is established without controversy that when he was employed he did not have in his possession a health certificate, and that he was never examined by a physician to determine whether he was suffering from any infectious or contagious disease. The only question presented for decision is whether or not Rogers was an employee of the bakery within the purview of the definition of that term as contained in the Workmen's Compensation Law. Art. 8309, sec. 1, R.S. 1925, reads in part as follows: "`Employe' shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, * * *."

Art. 705, Title 12 of the Penal Code, reads in part as follows: "No person, firm, corporation or common carrier, operating or conducting any hotel, cafe, restaurant, dining car or other public eating place, or operating any bakery or meat market, public dairy or candy factory in this State, shall work, employ or keep in their employ in or about any said place any person infected with or affected by any infectious or contagious disease, or work or employ any person to work in or about any said place who, at the time of his employment had not in his possession a certificate from some reputable physician of the county where said person is to be employed, attesting the fact that the bearer has been examined by such physician within one week prior to the time of employment, and that such examination discloses the fact that such person to be employed was free from any infectious or contagious disease; or fail to institute and have made a medical examination of all their employés at intervals of time not to exceed six months and after such examination promptly discharge from their employment in or about any said place any person found to be infected with or affected by any infectious or contagious disease. Whoever violates any provision of this article shall be fined not less than five nor more than one hundred dollars."

As has been often stated in the opinions of our courts, the right of a claimant to recover workmen's compensation does not rest at all upon the common law, but upon the statutes alone, which both create and measure that right. The authorities cited in the opinion of the Court of Civil Appeals announce that principle. They are: Oilmen's Reciprocal Ass'n v. Franklin, 116 Tex. 59, 286 S.W. 195; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Employers' Indemnity Corporation v. Woods, Tex.Com.App., 243 S.W. 1085; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556; Buchanan v. Maryland Casualty Co., 116 Tex. 201, 288 S.W. 116.

Only employees may be awarded compensation under the statutes, and by Art. 8309, supra, for one to be an employee he must have been in the service of the insured under a contract of hire, expressed or implied. That provision of the statute was construed by this court in the case of Texas Employers' Insurance Ass'n v. Tabor, Tex.Com.App., 283 S.W. 779, 780. The injuries for which Tabor sought compensation in that case were sustained by him on Sunday, and the Insurance Company defended upon the theory that, since the work he was doing on Sunday was made a penal offense by certain articles of our Penal Code, the contract of hire to perform such work on Sunday was in violation of such penal statutes and could not therefore be made a basis for recovery. The Court of Civil Appeals (274 S.W. 309) overruled the contention of the Insurance Company upon the ground that the breach of the Sunday law was not the efficient or contributing cause of Tabor's injuries. This court refused to adopt the reasoning of the Court of Civil Appeals, but announced the proposition that, while the principle of proximate cause is of vital importance in common law negligence cases, it has no application to workmen's compensation cases. But upon the question with which we are here concerned the court employed this clear language:

"It is not every mutual agreement that makes a lawful contract. The law will not enforce an agreement to do that which the same law says shall not be done. It would, therefore, be anomalous, indeed, if the law were to sanction contracts which violate the law. The law prohibiting the end will not lend its aid in promoting the means designed to carry it into effect.

"Now, the very right of defendant in error to recover as an employee of Fulwiler Motor Company depends upon his showing that he was in the service of that company under a `contract of hire,' for, unless there is a `contract of hire,' he is not an employee within the meaning of the Workmen's Compensation Act. Vernon's Texas Civil Statutes, 1918 Supplement, art. 5246—82 [Vernon's Ann.Civ.St. art. 8309, § 1]. If the agreement between the motor company and defendant in error was void, then there was no contract, and, of course, no employer or employee. In such a case it is not a question of proximate cause with respect to the injury, but, rather, it is a...