Tigrett v. Heritage Bldg. Co.

• Decision Date: 06 January 1976
• Docket Number: No. 8314,8314
• Parties: Ruby Sears TIGRETT, Appellant, v. HERITAGE BUILDING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 65

533 S.W.2d 65

Ruby Sears TIGRETT, Appellant, v. HERITAGE BUILDING COMPANY, Appellee.

No. 8314.

Court of Civil Appeals of Texas,

Texarkana.

Jan. 6, 1976.

Rehearing Denied Feb. 17, 1976.

Alfred W. Ellis, Woodruff & Smith, Dallas, for appellant.

Gerald Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.

CHADICK, Chief Justice.

Appellant, Ruby Sears Tigrett, moved for judgment upon the verdict a jury returned to special issues in a breach of contract action. ¹ The Motion was overruled and a motion for judgment notwithstanding the verdict, urged by appellee Heritage Building Company, was granted. Judgment was entered in the trial court that Mrs. Tigrett take nothing.

I.

Stated in broad terms the issue in this appeal is whether the parties, Mrs. Tigrett and Heritage Building Company, entered into an enforceable contract. To simplify discussion, the question is divided into two parts and a negative answer to either requires an affirmance of the judgment below.

II.

Heritage Building Company, Mrs. Tigrett's employer at times pertinent to this case, in a non-subscriber as classified by the Texas Workmen's Compensation Act. Heritage's position in this appeal is that Vernon's Ann.Civ.St. art. 8306, Secs. 1 and 4 ² governed Mrs. Tigrett's suit and that such statute excludes a breach of contract action and confined Mrs. Tigrett to a negligent tort action for recovery of damages she claimed for personal injuries received in the course of her employment. Heritage insists the term Shall in Article 8306, Sec. 4 is utilized in the mandatory sense, when consideration is given to the intent of the act and its purposes and restrictions. In this connection it is postulated that the intent of Sec. 4 is to provide an exclusive remedy; and that the only remedy allowed is a suit by an injured employee against a non-subscribing employer for damages resulting from the employer's negligence proximately causing the employee's injury. Article 8306, Sec. 1 is interpreted as impliedly supporting the exclusive remedy construction by singling out and denying to the non-subscriber employer only tort action defenses of contributory negligence, negligence of a fellow employee, and assumed risk of injury incident to employment.

Heritage cites State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958); Crickmer v. King, 507 S.W.2d 314 (Tex.Civ.App . Texarkana 1974, no writ); Few v. The Charter Oak Fire Insurance Company, 463 S.W.2d 424 (Tex.1971) and Employers' Liability Assur. Corporation, Limited v. Young County Lumber Co., 122 Tex. 647, 64 S.W.2d 339 (1933, opinion adopted) in support of its argument that use of the word Shall in Sec. 4 indicates a legislative intent that a negligence suit is mandatory and exclusive. Unquestionably the auxiliary verb Shall has a mandatory connotation. However, not one word but the act as a whole must be consulted in determining the legislative intent. 53 Tex.Jur.2d, Statutes, Sec. 163. Gayle v. Alexander, 75 S.W.2d 706 (Tex.Civ.App. Waco 1934, no writ) ³ provides useful directions for ascertaining legislative intent, there it is said,

'A mandatory provision in a statute is one, the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one, the observance of which is not necessary to the validity of the proceeding. A statute may be mandatory in some respects and directory in others. (Citations omitted) There is no universal rule or absolute test by which directory provisions in a statute may in all circumstances be distinguished from those which are mandatory, but in the determination of this question, as every other question of statutory construction, the prime object is to ascertain the legislative intent from a consideration of the entire statute, its nature, its object, and the consequences that would result from construing it one way or the other. Words of permissive character may be given a mandatory significance to effect the legislative intent. On the other hand, the language of a statute, however mandatory in form, may be deemed directory whenever the legislative purpose can best be carried out by such construction.'

The same exclusive remedy contention made in the present appeal was urged ⁴ in Anderson-Berney Realty Co. v. Soria, 123 Tex. 100, 67 S.W.2d 222 (1933). The contention was rejected. The employer in the Soria case was a subscriber when the employment contract with Soria was made. The employers' Workmen's Compensation insurance policy was permitted to lapse but neither statutory nor other notice that the employer had ceased to be a subscriber was given. Soria, a watchman, was murdered in the course and scope of his employment. Soria's wife, as beneficiary, brought an ex contractu action for damages grounded upon a breach of the employment contract, which when made, provided for Texas Workmen's Compensation Act coverage. The ex contractu action was sustained. The Soria case does not decide the precise question presented in this appeal and no case in point, from this or any other jurisdiction, has come to the attention of this court. But the Soria case clearly holds that an employee injured in the course and scope of his employment may prosecute a breach of contract action against his non-subscribing employer and such employee or his beneficiary is not confined by Secs. 1 and 4 to a negligence action.

The primary purpose of the Texas Workmen's Compensation Act is to benefit and protect employees. 62 Tex.Jur.2d, Workmen's Compensation, Sec. 2. The act is generally held to be remedial and its uncertain provisions are liberally construed to accomplish the act's purpose and promote justice. 62 Tex.Jur.2d, Workmen's Compensation, Sec. 8. The act regulates in detail the relationship of subscribing employers and their employees or successor beneficiaries. However, regulation of non-subscribers and their employees is less extensive and the act does not expressly change their relationship except to restrict the non-subscribers' defenses to an employee's negligence action. Deprivation of the valuable right to contract for his own benefit and protection with a non-subscriber is not beneficial to an employee and intent to declare or imply that it is beneficial is not discernable in the terms or objective of the act. No declared or implied purpose of the act that would be furthered by a restriction on the right of non-subscribers and their employees to validly contract is suggested by Heritage or known to this court.

To sum up, consideration of the law settled by Anderson-Berney Realty Co. v. Soria, supra, together with the general purpose of the Texas Workmen's Compensation Act, and application of the rule of Gayle v. Alexander, supra, leads to the conclusion that Article 8306, Secs. 1 and 4 does not provide an exclusive remedy, and that an employee of a non-subscriber may maintain an action for a breach of a valid contract governing employment. Whether Mrs. Tigrett and Heritage entered into a valid contract governing compensation for her injuries must next be considered.

III.

Mrs. Tigrett's pleadings stated the existence of a contract and its breach and relied upon the rule of law that a contract implied in fact arises when the acts of the parties are such as to indicate a mutual intent to contract. See Marr-Piper Co. v. Bullis, 1 S.W.2d 572 (Tex.Comm'n App.1928, jdgmt. adopted); Terry County Airport Board v. Clark d/b/a Clark Aerial Service, 378 S.W.2d 932 (Tex.Civ.App. Amarillo 1964, no writ); Turners, Inc. v. Klaus, 341 S . W.2d 182 (Tex.Civ.App. San Antonio 1960, writ ref'd n.r.e.); Kuhlmann's Estate v. Poss, 220 S.W. 564 (Tex.Civ.App. San Antonio 1920, no writ).

A few months before injury, Mrs. Tigrett, in a casual conversation with a work supervisor concerning delivery of a check to a fellow employee who had undergone surgery, was told '. . . this is such a good company that they pay workmen's compensation to a man when he didn't get hurt on the job.' About ten days after Mrs. Tigrett was injured she asked the shop manager about compensation and was told she, as a piece-work or contract worker, was not entitled to workmen's compensation. She protested that she was an hourly employee at the time of injury and was advised to take the claim for compensation to Mr. G. M. Pointer, described in the record as the owner of the company. She telephoned Mr. Pointer and he agreed to get 'the workmen's compensation checks started.' She thereafter received nine weekly checks for forty-nine dollars ($49.00) each, drawn on the company's compensation account, and several distinctly marked as payment of workmen's compensation. The amount of the each weekly check was equal to the Texas Workmen's Compensation Act rate for weekly total disability under the law in effect when Mrs. Tigrett was injured.

Mr. Pointer's testimony, fairly summarized, was that it was the policy of the company to provide its employees the same...