Summary
In McGuire, the court did not hold that the employee could not bring his wrongful death claim, a claim that was based on Arkansas law, in Texas because Article 8306, Section 19 did not apply.
Summary of this case from Lazenby v. HMT Construction Services, Inc.Opinion
No. 4146.
March 31, 1932. Rehearing Denied April 21, 1932.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by Thelma Edwards against McGuire Cavender. From a judgment for plaintiff, defendants appeal.
Reversed and rendered.
The action was to recover damages for the alleged wrongful act causing the death of Walter Edwards. Walter Edwards, husband of the appellee, Thelma Edwards, was killed about 6 o'clock p. m., on November 4, 1930, in an automobile collision occurring on a public highway in Miller county, Ark., at a point about twelve miles from Texarkana, Tex. A Chevrolet truck owned by the appellants, a partnership, and being driven by their employee, was going westerly towards Texarkana and collided with a Ford coupé driven by Mr. Gunnels, going easterly. Walter Edwards and several other employees of the appellants were at the time en route to their lodgings in Texarkana, their day's labor being ended in construction work upon the highway. The city of Texarkana is partly in Texas and partly in Arkansas, although legally they are distinct cities. The roadway at the place of the collision is described as being between twenty and twenty-five feet wide and laid with hard surface. There is a gradual curve in the road. Looking from the east towards the curve, objects on the roadway are visible for a distance of some three hundred yards, and there are no obstructions to impair the vision. The collision occurred at a point near the west portion of the curve. The truck was being driven at the rate of speed of between twenty and twenty-five miles an hour, and the Ford automobile was being driven at about the same rate of speed. The darkness of the night had set in. The evidence is conflicting as to the cause of the collision. According to the evidence of the driver of the Ford coupe, he was driving east "on the south side hugging the curve" which was on the right side of the road when going east. As the driver of the Ford coupe was entering upon the curve he saw the truck approaching from the east going west. He stated that the truck at the time was being driven without "any lights," but, "so far as I could see he was at the time on the proper side of the road or was in the center." As further testified, as the truck neared the coupé and when about "thirty steps away," the driver of the truck suddenly "flashed on the lights in front of me," and then "headed" it (the truck) south, which means it was coming over to my side, and "when I saw I could not miss him by going to the right I swerved to the left" and "we collided." According to the evidence given by the driver of the truck, when he first noticed the Ford coupe approaching, it was "about five hundred feet away." He further testified: "I had my truck lighted since I left the corral at six o'clock. When I first saw the Ford he was coming rapidly, but I could not tell how fast, on the north side, which was on my side of the road. When I saw that he was on my side of the road I slowed down to wait and see what he was going to do. At the time some of my wheels were on the shoulders of the road near the side of the embankment which was five feet high. The driver of the Ford did not ever turn to his side of the road, and to avoid a head-on collision I turned slightly to the left. It was impossible on account of the embankment for me to turn to the right. The Ford struck my truck about where the running board and fender joins." The jury found that the fault lay entirely with the truck driver. There is sufficiency of circumstances in evidence considered together to raise an issue of fact of the negligence vel non of the driver of the truck in the manner of its operation.
Appellants were engaged exclusively in the business of doing work by contract upon public highways. They were employers of workmen to do the work, at times having fifty or more employees. They extended their operations over the area of Arkansas, Oklahoma, and portions of Texas and Louisiana, as road work might be open and secured at different points. One of the appellants, and presumably from the evidence, the managing partner, lived in Texarkana, Tex. They owned and maintained a warehouse in Texarkana, Tex. In the building was also a room set apart and used as an office. The warehouse was designed and used for keeping the supplies and tools used in their contracting business. In the office, the books and the records, for the most part, of the business were kept, and the pay checks of employees were made out. The pay checks of employees would be drawn for payment "on a Texarkana, Texas, bank." The warehouse and office had been kept and maintained in Texarkana, Tex., for more than two years prior to the present suit. One of the appellants was asked the question of whether or not "you radiate out from Texarkana to work in all four states," and the answer was "yes." The evidence does not show that appellants had an office or place of business elsewhere. The circumstances warrant the conclusion that Texarkana, Tex., was intended by appellants to be their place of business, and their business was located there as far as circumstances and conditions permitted it to be conducted there. The city of Texarkana, Tex., was conveniently situated as the principal place of business. The western boundary line of Arkansas and the eastern boundary line of Texas adjoin and run through the center of the city of Texarkana, legally created two distinct cities. The city of Texarkana is also located within a few miles of the corner of both Oklahoma and Louisiana. At the time in suit the appellants had been let the contract and were engaged in the work of road construction on the portion of state highway No. 2, located wholly in Miller county, Ark., leading from Garland City, Ark., to Texarkana, Ark. The contract was entered into with proper officials of Arkansas and was to be performed in Miller county, Ark. Appellants hired a number of employees for the work, some fifty or more, one of whom was Walter Edwards, and his duties were that of a teamster. The evidence does not disclose the residence of the employees, except that Walter Edwards and his wife resided and had their lodgings in Texarkana, Tex. Walter Edwards was hired to do personal service for appellants by the day upon the road contract in Miller county, Ark. He was hired at the office of appellants in Texarkana, Tex., to do the personal service. His service was to continue and end with the completion of the particular contract of road construction in Miller county, Ark. The appellants were also working on a road contract in Louisiana. The appellants had no road contract in Texas since two years before the present suit. The appellants had two road contracts in Arkansas just preceding the present one. They carried no compensation insurance on the present contract. The state of Arkansas has no Workmen's Compensation Law.
It appears that the truck in question was new and had been in use for about thirty days only and was in good mechanical condition. The superintendent of appellants testified that "this truck (the one in suit) was provided to bring the men in home when they got through work for McGuire and Cavender. This same truck had not always carried them out to work every morning. We had a trailer truck which was used for the purpose. I instructed the men not to ride with their feet hanging over it." The person assigned to drive the truck was in the employ of appellants as a general utility man, especially assigned to drive a truck and to do any other work directed to be done. According to the evidence of the driver of the truck, the appellants' superintendent "ordered me to drive that truck out there (the place of work) and carry the men out there and bring them back (to their lodgings in Texarkana), and I acted under his directions." The evidence in behalf of the plaintiff further goes to show that transportation by automobile to and from their lodgings to the place of labor was to be furnished by appellants as a part of the consideration of their employment.
The suit was brought by Thelma Edwards, surviving wife of Walter Edwards, deceased, individually and as the administratrix of his estate. Vince Edwards and Lucy Edwards, the surviving father and mother of Walter Edwards, deceased, were made parties in order that all proper parties might be before the court, and they were not claiming any interest in the recovery. Walter Edwards and his wife had no children. The plaintiff predicated liability, first, upon the ground that appellants were subject to the Texas Compensation Law, although not a subscriber, claiming that the appellants were carrying on and conducting their business in Texas and outside the state, and the deceased was an employee of the defendants hired in Texas and was injured in the course of his employment outside of the state. The petition further predicated liability, in the alternative, as upon an action for damages for wrongful death under the Arkansas statute based on common-law negligence. Appellants specially denied being subject to the compensation laws of Texas or any of its provisions, and pleaded further that, if plaintiffs had any cause of action by reason of the death of Walter Edwards, it was an Arkansas cause of action based upon the Arkansas death statute, and, since the laws of the state of Arkansas, pleading pertinent provisions thereof, were so dissimilar to the laws of Texas, the courts of this state would not entertain jurisdiction thereof. The answer further set up assumed risk and the act of a fellow servant as defenses allowable by the laws of Arkansas.
The case was submitted to a jury on special issues. Various acts of pleaded negligence were submitted to the jury, most of which were found in favor of the appellants. The jury made affirmative findings as follows: That the driver of the truck was guilty of negligence in failing to keep a proper lookout for curves in the road and on-coming cars; and that the driver of the truck was, under the circumstances of the case, guilty of negligence in turning to the left instead of to the right at the time done; and that the acts of negligence were each the proximate cause of the injury. The jury awarded plaintiff the sum of $2,000 as damages. The deceased was twenty-seven years old and was earning reasonable wages. We adopt the findings of facts made by the jury as to negligence and as to the amount of the damages awarded, as there is sufficiency of evidence to warrant the same.
Seay, Seay, Malone Lipscomb, of Dallas, and James D. Head, of Texarkana, for appellants.
Elmer L. Lincoln, of Texarkana, and Hugh Carney, of Atlanta, for appellee.
There is presented for decision on appeal the points that in the circumstances (1) the appellants were not amenable to the Workmen's Compensation Law of Texas, and (2) the action was a cause of action governed and controlled exclusively by the laws of the state of Arkansas, which are so dissimilar to the laws of Texas that the courts of this state cannot entertain jurisdiction to try the same, and (3) the negligence of the truck driver, as found by the jury, were acts of a fellow servant, which was a defense under the laws of Arkansas, and (4) assumed risk was applicable, which doctrine was in force in the state of Arkansas.
The important question first to determine is that of whether or not the provisions of the Workmen's Compensation Law of this state have application to the situation shown in the evidence. For, if we are to determine that the provisions of the Compensation Law, have not application, and the employer was not amenable thereto, then, it is thought that the plaintiff would likewise be precluded from recovery as respects her action for wrongful death based on the Arkansas statute. The jury made the affirmative finding that the death of the plaintiff's husband was caused solely through the fault of the truck driver in the manner of operating the truck. Under the law of Arkansas, as proven, the common-law rule of fellow servant is in force as respects an individual or partnership employer of labor. As held by the courts of that state, in a state of facts similar to the present case, a truck driver transporting other employees in the course of employment is a fellow servant for whose negligent acts the employer does not become legally responsible. Walsh v. Eubanks, 183 Ark. 34, 34 S.W.2d 762; Parham v. Parker, 183 Ark. 673, 37 S.W.2d 879.
The Workmen's Compensation Law provides that: "In all cases of injury resulting in death, where such injury was sustained in the course of employment, cause of action shall survive." Section 16, art. 8306 (Rev.St.). The facts show an injury in the course of employment within the meaning of the law. The employee was killed in Miller county, Ark., while being transported to his lodging in Texarkana, Tex., from his place of work in Miller county, Ark., as a part of the contract of employment. The relation of employer and employee would nevertheless exist during the transportation of the employee. Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76; Jones v. Casualty Reciprocal Exchange (Tex.Civ.App.) 250 S.W. 1073. And it is further provided in section 19 of article 8306 that: "If an employee who has been hired in this State sustained injury in the course of his employment he shall be entitled to compensation according to the law of this State, even though such injury was received outside of the State." It is apparent that the provision was not intended to extend the compensation law to include an injury occurring without this state which was not referable or incident to service in the industry or business which the employer conducted or pursued in whole or in part in the territorial limits of this state. The statute could legally have no such extra-territorial effect. The language of the section makes it clear of purpose, it is believed, to have the Compensation Law by its terms fix the rights of the parties to a contract of hiring, and enjoin the payment of compensation for injuries received by the employee occurring without this state. In the absence of such provision, the Compensation Law would apply to injury occurring within the state only. And the aim was to write into the contract of hiring the additional terms of compensation for injury which might be "received outside of this State." It was intended by the provision to provide that the contract of hiring, made by an employer engaged in business, localized or partly carried on in Texas, should have the legal effect of including injuries received without this state in case such injury be referable or incident to service in the conduct of the business. A statute is not void that requires a contract to be made by two parties to a hiring that the contract shall have extraterritorial effect.
Employment under the Compensation Act may be treated as contracts of hiring, to be interpreted and enforced as all other contracts, and as binding upon the parties for injuries or death sustained in any place to which such contracts of hiring extend the rights of the parties. And where, under Compensation Acts, as in this state, a contract of hiring is entered into, it would be presumed that such contract was entered into with reference to section 19 and as an integral part thereof, binding the parties, and enforceable the same as any other contract. In this view may the appellants be held amenable to the Workmen's Compensation Act in the situation shown in the evidence? In the evidence, the facts, which we must take as established, are substantially these: The appellee's husband was a resident of Texarkana, Tex. He was employed by appellants, a partnership doing work through contract upon public highways generally in the area of Arkansas, Oklahoma, and portions of Texas and Louisiana, as such Work might be open and secured in such places. He was hired by appellants at their office in Texarkana, Tex., to do labor upon the road in Miller county, Ark., upon which appellants were doing contract work. As a part of the contract of hiring he was to be transported from his home in Texarkana, Tex., to his work in Miller county, Ark. Appellants were not transient contractors with no domicile or place of business except in the locality of the particular contract then being performed. The circumstances are too definite to warrant the conclusion of pure fact that the appellants did not have nor intend to have and at all times use Texarkana, Tex., as their office and principal place of conducting their business. That was their place of business and used as such. One of the appellants, presumably the managing partner, bodily resided there. A warehouse for keeping supplies and tools of the business, and an office for the work of the business, were owned and maintained there. They transacted their banking business there. They used the locality as the place of convenience from which to "radiate from" or operate in the several states adjoining. They localized their business there as far as circumstances and conditions permitted. They maintained no office or branch office in Miller county, Ark. The legal effect of such facts would be to constitute appellants an inhabitant of this state within the purview of the venue statute. Pecos N. T. Rwy. Co. v. Thompson, 106 Tex. 456, 167 S.W. 801, They would not be within the description of a "transient person," continually on the move from the respective states mentioned, in pursuit of business. And, likewise, the facts go to support the conclusion that the principal place of business of appellant was in Texarkana, Tex., and they were not conducting their business exclusively in Miller county, Ark., and that the contract of employment was made in Texarkana, Tex., and had a direct connection with the business conducted in Texarkana, Tex., and the injury was referable to or an incident of the business. In such situation, the contract of hiring having been entered into in this state, section 19, art. 8306, would be read into the contract as an integral part thereof, and the case would stand precisely as if it had been expressly contracted that for an injury suffered outside of the state in the service of the business or employment the compensation due should be determined by the Compensation Laws of the place of contract. The liability in the case would therefore be enforced under the law of and at the place the contract of hiring is entered into, and not under the law at the place of the performance. Pierce v. Beckins Van Storage Co., 185 Iowa 1246, 172 N.W. 191; Bement Oil Corp. v. Cubbison, 84 Ind. App. 22, 149 N.E. 919; and other cases. It is believed that the appellants were subject to the Compensation Law of Texas, and that its provisions were applicable to the present case. Home Life Accident Ins. Co. v. Orchard (Tex.Civ.App.) 227 S.W. 705; Texas Employers' Ins. Ass'n v. Price (Tex.Civ.App.) 300 S.W. 667; Id. (Tex.Com.App.) 296 S.W. 284; Norwich Union Indemnity Co. v. Wilson (Tex.Civ.App.) 43 S.W.2d 473; Ginsburg v. Byers, 171 Minn. 366, 214 N.W. 55; Hall v. Industrial Commission, 77 Colo. 338, 235 P. 1073; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615. The factual element of having taken out insurance under the Compensation Law would not operate to distinguish some of the cases from the present one. The taking out insurance would only operate to show that the employer has elected to come under the terms of the law. The test is that of whether or not there has been a contract of hiring, and, if so, then the law presumes that the parties have accepted the provisions of section 19, art. 8306, and have agreed to be bound thereby.
We have considered each assignment of error presented and have concluded that they should be overruled as not warranting a reversal of the judgment.
The judgment is affirmed.
On Rehearing.
It is urged by appellants that there was error in the original opinion of this court (1) in the conclusion of fact that Walter Edwards was hired in Texas, and (2) that section 19 of article 8306 of the Workmen's Compensation Law of Texas had application to the situation in this case.
The jury finding that the place Walter Edwards was hired was in Texas, we assumed to be warranted by the evidence. After careful review of the evidence, though, we think that fact cannot be sustained, for the only conclusion warranted is that the place of employment of Walter Edwards was in Miller county, Ark. He was hired in Miller county, Ark., to work upon the roadway there in the course of construction, and as a part of the contract of employment was to be transported to and from the place of work on the roadway in Miller county, Ark., to his residence in Texarkana, Tex. The facts show an injury in the course of employment as Walter Edwards was killed in Miller county, Ark., while being transported to his lodging in Texarkana, Tex. The appellants, a partnership, were not conducting their business exclusively in Miller county, Ark., for they maintained their office and principal place of business in Texarkana, Tex. The injury in suit was referable to and an incident of the general contracting business of appellants, although the proximate cause of the injury was the act of negligent operation of the truck by the truck driver, a fellow servant of the injured employee. The appellants, in fact, were amenable to the Texas Workmen's Compensation Law, although they were nonsubscribers at the time of the injury. All such situation as stated above is, as we now conclude, shown by the evidence.
In the original opinion we concluded that, although the plaintiff was legally precluded of recovery under the laws of Arkansas, the place where the injury occurred, because the injury was solely caused by the act of a fellow servant, yet, in the situation shown, she would be entitled to recover under the provisions of section 19 of article 8306 of the Workmen's Compensation Law of Texas which would be applicable and govern, because the appellants were shown to be amenable to the Compensation Law, although they were nonsubscribers. After more mature deliberation it is concluded that there was error in the original ruling so far as determining that liability could be enforced under the provisions of section 19 of article 8306 in an action for damages brought by the beneficiary of an employee of a nonsubscriber of the Workmen's Compensation Law. It is believed that this provision of the Workmen's Compensation Law should be construed as applicable only where the employer of an employee has elected to accept the act and take out the policy of insurance, and not where the employer of an employee is a nonsubscriber. The act by its provisions is elective and not mandatory, and neither the employer nor the employee are bound by the provisions of the act unless they have both elected to come within and be bound by its provisions. Subdivision 4 of section 1, § 3a, section 4, of article 8306; Holland v. Stuckey (Tex.Civ.App.) 282 S.W. 951. Where both the employer and the employee have elected to come within and be bound by the provisions of the act, then, in seeking redress under it, the action for compensation for the injury or death must be brought pursuant to and in accordance with its terms and provisions. The provisions of the act then become a part of the contract of employment and enforceable between the parties as such. But if the employer elects not to be bound by the act, and not to come within its terms and provisions, then he is not in any wise subject to any of its terms or provisions with the one exception, namely, that he forfeits his right to interpose in a suit in the courts for damages for negligence the common-law defenses of contributory negligence, fellow servants, and assumed risk. The injured employee or his beneficiary of a nonsubscriber to the act is expressly referred to the courts for redress by an action at law for damages for negligence which is governed in all respects by the rules and principles of law applicable to such actions, except alone as respects the denied common-law defenses mentioned. Section 4 of article 8306 expressly restricts employees or their beneficiaries of nonsubscribers to a common law or a statutory suit in the courts "for all damages by reason of personal injury or death," and declares they "can not participate in the benefits of said insurance association." In all the reported cases where liability was enforced under provisions similar to section 19, art. 8306, the claim was for compensation under compensation acts and not damages in suits for negligence, and the employers were subscribers to the Compensation Act or with policies of insurance under it. We find no case that has so dealt with a nonsubscribing employer.
In view of the ruling above, the former ruling affirming the judgment will have to be set aside and judgment be here now entered reversing the judgment of the trial court and here rendering judgment in favor of the appellants. In the absence of contract otherwise providing, actions based upon negligence arising outside of the state can only be determined by the law of the state or place of injury. Under the law of Arkansas, where the death and the negligence causing it occurred, the appellee would be legally precluded of recovery in the facts because of the application of the common-law doctrine of fellow servant. The death was caused solely by the act of negligent operation of the truck by the truck driver, a fellow servant under the laws of Arkansas.