Summary
In Barron v. Standard Acci. Ins. Co., 122 Tex. 179, 53 S.W.2d 769, the employer operated two plants, one a stone cutting and polishing plant in Houston and the other a stone quarry in Kinney county.
Summary of this case from Coal Operators Casualty Co. v. C. L. Smith & Son Coal Co.Opinion
Motion No. 10,325.
Decided October 26, 1932.
Insurance — Workmen's Compensation Act.
The general rule is that employers of labor operating under the Workmen's Compensation Act cannot protect a part of their employees without protecting all engaged in the same general business or enterprise; but, where employers of labor conduct two distinct kinds of business involving different risks, different pay-rolls and requiring different premiums, electing to insure the employees in one business, expressly excluding those in the other, such policy cannot be construed to cover employees in both enterprises, and an employee working in the latter class cannot recover upon a policy issued for the protection of those in the former class.
Motion for rehearing of an application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Kinney County.
Suit by Standard Accident Insurance Company against William K. Barron, to set aside an award made to him by the Industrial Accident Board for injuries received in the stone quarry of the Del Rio Stone Company. The trial court gave judgment for Barron. On appeal this judgment was reformed and affirmed, but on motion for rehearing in the Court of Civil Appeals, judgment of affirmance was set aside and judgment rendered for Insurance Company ( 47 S.W.2d 380), and Barron applied to Supreme Court for writ of error. Application refused and motion for rehearing of the application overruled.
H. E. Wassell, Frank Lane, and Black Graves, of Austin, for plaintiffs in error.
Walter S. Pope, Casualty Commissioner for the Board of Insurance Commissioners, as amicus curiae.
This court denied an application for writ of error to review the opinion rendered in this cause by the Honorable Court of Civil Appeals for the Fourth Supreme Judicial District. 47 S.W.2d 380. A motion for rehearing of the application for writ of error is now pending before us. The construction of the Workmen's Compensation Act, Title 130, Arts. 8306, etc., Revised Civil Statutes, is involved. The record shows that the employer operated two plants, one a stone quarry situated in Kinney County, something like 400 miles distant from a stone cutting and polishing plant situated at Houston. The bond or policy sued on was intended by the parties thereto to cover employees in the Houston plant only. By the terms of the bond or policy, quarrying of stone was expressly excluded. The premium paid by the employer for the bond or policy was based upon the pay roll of the employees at the Houston plant and did not include consideration of the pay roll of the employees at the quarry in Kinney County. The amount of the premium paid for the bond was $322.80 and if the pay roll of the employees at the quarry and the hazard incident thereto had been used as a basis, it would have increased the premiums to the extent of $433.00.
The rule is well established that employers of labor operating under the Workmen's Compensation Act cannot cover part of their employees and leave part of them uncovered, where such employees are engaged in the same general business or enterprise, and a policy issued thereon will cover all employees in such business. In re Cox 225 Mass. 220, 114 N.E. 279; Reports Opinions of Attorney General, 1916-1918, p. 321.
Likewise, it is equally well settled that where an employer conducts two separate and distinct kinds of business, each business involving different risks, pay rolls and requiring a different premium for compensation insurance, may elect to insure a class of employees in one business and not to insure a class of employees in the other business. Therefore, a policy issued to cover a class of employees in one business, as was done here, which expressly excludes the class of employees in a different and distinct business, will not be construed to cover employees in both business and a recovery cannot be had under the policy by an employee not covered by the policy. Nothing in the Workmen's Compensation Act prohibits this construction.
U.S. Fidelity Guaranty Co. v. Bullard Gin Mill Co. (Civ. App.), 245 S.W. 720; Employers Indemnity Corporation v. Felter (Civ. App.), 264 S.W. 137; Interstate Casualty Co. v. Martin (Civ. App.), 234 S.W. 710; American Employers Ins. Co. v. Hookfin, 33 S.W.2d 801, (writ denied); U.S., etc. Co. v. Taylor, 132 Md. 511, 104 A. 171; Hungerford v. Bonn., 183 App. Div. 818, 171 N.Y. S., 280; Bayer v. Bayer, 191 Mich. 423, 158 N.W. 109; New Amsterdam Casualty Co. v. Industrial Com., 80 Okla. 7, 193 P. 974; Cambria Coal Co. v. Travelers' Ind. Co., 144 Tenn. 469, 234 S.W. 323; Maryland Casualty Co. v. Industrial Com., 178 Cal. 491, 173 P. 993; Milliron v. Dittman, 180 Cal. 443, 181 P. 779; Youngquist v. Droese Co., 167 Wis. 458, 167 N.W. 736; Indiana Ohio L. S. Ins. Co. v. Krenek (Texas Civ. App.), 144 S.W. 1181; Norris v. China Traders Ins. Co., 52 Wn. 554, 100 P. 1025; Western Indemnity Co. v. Industrial Accident Commission, 43 Cal.App. 487, 185 P. 306; Elder v. Federal Ins. Co., 213 Mass. 389, 100 N.E. 655; Orient Ins. Co. v. Van Zant-Bruce Drug Co., 50 Okla. 558, 151 P. 323; Hartigan et al. v. Casualty Co. of America, 227 N.Y. 175, 124 N.E. 789; Royalty Indemnity Co. v. Schwartz, 172 S.W. 581; Fidelity Casualty Co. v. Palmer Hotel Co., 179 Ky. 518, 200 S.W. 923, L. R. A., 1918C, 808; Mannheim Ins. Co. v. Charles Clarke Co. (Texas Civ. App.), 157 S.W. 291; Huntley v. Providence Washington Ins. Co., 77 App. Div. 196, 79 N.Y. Supp., 35; Harris v. St. Paul Fire Marine Ins. Co. (Sup.), 126 N.Y. S., 118; Langworthy v. Oswego O. Ins. Co., 85 N.Y. 632; State v. Chicago, M. P. S. Ry. Co., 80 Wn. 435, 141 P. 897.
Rehearing upon application for writ of error is overruled.