Southern Casualty Co. v. Morgan

• Decision Date: 01 October 1927
• Docket Number: (No. 11848.)
• Citation: 299 S.W. 476
• Parties: SOUTHERN CASUALTY CO. v. MORGAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 476

299 S.W. 476

SOUTHERN CASUALTY CO. v. MORGAN.^*

(No. 11848.)

Court of Civil Appeals of Texas. Fort Worth.

October 1, 1927.

Rehearing Denied October 29, 1927.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Proceeding under the Workmen's Compensation Act by Paul Morgan, claimant, against the Southern Casualty Company, insurer, for injuries sustained by claimant in the employ of the City of Weatherford. Judgment for claimant on claimant's appeal from the decision of the Industrial Accident Board, and insurer appeals. Reformed and affirmed.

Holland, Bartlett, Thornton & Chilton, of Dallas, for appellant.

Grindstaff, Zellers & Hutcheson, of Weatherford, for appellee.

DUNKLIN, J.

Paul Morgan was employed by the city of Weatherford in the work of repairing the streets of the city, and while engaged in repairing a tractor used by him in such work, he sustained a fall which caused an injury to his leg and knee. Prior to the employment of Morgan, the city of Weatherford became a subscriber to the Texas Employers' Insurance Association under the Workmen's Compensation Law (Rev. St. 1925, arts. 8306-8309) and obtained an insurance policy under that law covering claims for damages for injuries sustained by its employees. The Southern Casualty Company issued a policy of insurance covering such damages. A claim for compensation under the Workmen's Compensation Law was filed by Morgan with the Industrial Accident Board, where his claim was heard and determined. From the decision of that board, Morgan prosecuted an appeal to the district court of Parker county, where a judgment was rendered in his favor against the Southern Casualty Company, defendant in the suit, and that defendant has prosecuted this appeal from that judgment.

Appellant does not question the regularity of any of the proceedings under the provisions of the Workman's Compensation Law which led up to and resulted in the final judgment, including a compliance by the city of Weatherford with the requirements necessary to become a legally authorized subscriber to the Employers' Accident Insurance Association, but it does challenge the right of the city of Weatherford to become such a subscriber, and that is the principal question involved in this appeal.

It is insisted that the policy of insurance sued on was absolutely void and therefore could not furnish any basis for the relief prayed for by Morgan by reason of the following provisions of article 3, § 52, of our state Constitution, to wit:

"The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the state to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation, * * * or to become a stockholder in such corporation, association or company. * * *"

The recent case of City of Tyler v. Texas Employers' Insurance Association, reported in (Tex. Com. App.) 288 S. W. 409, was a suit by the Texas Employers' Insurance Association against the city of Tyler to recover $634.98 claimed as unpaid premiums on an employer's policy of insurance issued to the city of Tyler, and the further sum of $6,349.70 as penalties incurred by the city for misrepresenting its pay roll; the claims for such premiums and penalties being under and by virtue of the provisions of article 8308 of the Workmen's Compensation Law. In that case the trial court sustained a general demurrer to the petition, which judgment was reversed by the Court of Civil Appeals of the Sixth Supreme Judicial District (283 S. W. 929), but the judgment of the latter court was reversed and the judgment of the trial court affirmed by our Supreme Court in an opinion written by Justice Speer of the Commission of Appeals, Section B. As shown in that opinion, it was held that, by reason of the provisions of the Constitution quoted above, a municipal corporation, such as the city of Tyler, could not become a subscriber to the Texas Employers' Insurance Association, and that therefore its contract of subscription was void and unenforceable.

In the present suit the answer of the defendant, the Southern Casualty Company, contained a general demurrer, but the only showing in the transcript filed in this court of any action thereon by the trial judge, is by bill of exception, and it has been held in many decisions that under rule 53 for the government of district and county courts, rulings on demurrers and exceptions to pleadings cannot be shown by bills of exception. Some of those decisions are the following: Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S. W. 236; Alvord Nat. Bank v. Waples-Platter Grocer Co., 54 Tex. Civ. App. 225, 118 S. W. 232; Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442. However, we are of the opinion that, in the absence of any showing in the minutes of the trial court that appellant's general demurrer to the petition was overruled by that court, we believe that the question of insufficiency of plaintiff's petition to sustain the judgment can be raised for the first time in this court, if, as contended by appellant, the petition shows affirmatively and specifically upon its face that the plaintiff was not entitled to any relief. Under such circumstances, we do not believe that the court rule and the decisions noted above would be controlling. But, aside from that question, our conclusion is that the fact that the Legislature is prohibited by the Constitution from vesting a city or other political corporation or subdivision of the state with power to become a stockholder in any association or corporation, or to lend its credit thereto,...