See Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 347 (Tex.App.-Tyler 1998, no writ); Potter v. Garner, 407 S.W.2d 537, 541 (Tex.Civ.App.-Tyler 1966, writ ref'd n.r.e.); Skelly Oil Co. v. Carter, 316 S.W.2d 87, 90 (Tex.Civ.App.-Waco 1958, no writ); Sears, Roebuck Co. v. Robinson, 272 S.W.2d 549, 552 (Tex.Civ.App.-Beaumont 1954), aff'd, 280 S.W.2d 238 (Tex. 1955). Petitioners next argue that enforcing their waivers would be inconsistent with section 406.033(a)(2), which prohibits a nonsubscriber from asserting an assumption-of-the-risk defense, and with at least two of our decisions that prohibited an employer from shifting liability for job-related injuries and safety to the employee, Barnhardt v. Kansas City, Mexico Orient Railway Co. of Texas, 184 S.W. 176 (Tex. 1916), and Clevenger v. Burgess, 31 S.W.2d 675 (Tex.Civ.App.-Beaumont 1930, writ ref'd). But section 406.033(a)(2) does not speak to an employee's voluntary agreement to waive common-law claims against an employer in exchange for prescribed benefits.
that "[w]e are much impressed with the idea that there is a large element of public interest in the administration of [the Workers' Compensation Act]"); Hazelwood v. Mandrell Indus. Co., 596 S.W.2d 204, 206 (Tex.Civ.App.-Houston [1st Dist.] 1990, writ ref'd n.r.e.) ("If . . . this balance [established by the Act] is tipped so that the employee's benefits under the statute are substantially reduced, the clear intent of the legislature is thwarted."). We have likewise held unenforceable contracts that explicitly relieve employers of tort liability, relying either on common law prohibitions against such contracts, see Barnhart v. Kansas City M. O. Ry. Co. of Tex., 107 Tex. 638, 184 S.W. 176, 179 (1916), or upon the Workers' Compensation Act, see Petroleum Cas. Co. v. Smith, 274 S.W.2d 150, 151 (Tex.Civ.App.-San Antonio 1954, writ ref'd) (noting that "[t]he right to workmen's compensation is statutory, and cannot be abridged by private agreements or special applications for employment"); Clevenger v. Burgess, 31 S.W.2d 675, 678 (Tex.Civ.App.-Beaumont 1930, writ ref'd); Tex. Employers Ins. Ass'n v. Peppers, 133 S.W.2d 165, 167 (Tex.Civ.App.-Galveston 1939, writ dism'd) ("[T]he courts will not enforce contracts which are either expressly or impliedly prohibited by the [Workers' Compensation] Act"). This case concerns the validity of a subscribing employer's use of an agreement that, in the course of requiring arbitration between the parties in work-related disputes, imposes a series of procedural and substantive limits on the employee's rights.
While it is a common law action the common law defenses of contributory negligence, assumption of risk and negligence of a fellow-servant are not available to the company, since it was eligible as a subscriber under the Workmen's Compensation Law, but failed to subscribe. Art. 8306, Sec. 1; Clevenger v. Burgess, 31 S.W.2d 675, (wr. ref.); Eastern Iron Metal Co. v. McMorrough, 135 S.W.2d 750; 29 T.J. p. 100, Sec. 53. The trial court, upon the jury's findings, rendered judgment for Dyer, which was affirmed by the Court of Civil Appeals. 144 S.W.2d 989. Since the judgment was upon the findings, the facts upon which they are predicated to which the jury gave credence in returning their verdict, will be stated. Defendant was engaged in the business of producing oil, and used engines to pump its wells and to pump the oil therefrom into tanks.
The decisions of this State do not look with favor upon contracts waiving rights arising under the Workmen's Compensation Law. See Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675; Clevenger v. Burgess, 31 S.W.2d 675 (writ refused). Article 8309, section 1, in part reads: " 'Employe' shall mean every person in the service of another under any contract of hire, expressed or implied, * * * 'legal beneficiaries' as used in this law shall mean the relatives named in section 8a, part 1, of this law."
In view of the provisions of the statute (Art. 8306, Secs. 1 and 4, R.C.S. 1925), it was only necessary for appellee to show that he received an injury in the course of his employment, due to the negligence of his employer, and that such negligence was the proximate cause thereof. Clevenger v. Burgess, Tex.Civ.App. 31 S.W.2d 675, writ refused; 29 Tex.Jur. ยง 53, p. 101. These issues were submitted to the jury and found in favor of appellee.
Sec. 614; Id. Sec. 616; Largent v. Etheridge, Tex. Civ. App. 13 S.W.2d 974; Parker v. Allison, Tex. Civ. App. 22 S.W.2d 338; Clevenger v. Burgess, Tex. Civ. App. 31 S.W.2d 675, writ refused; Traders' General Life Ins. Co. v. Powell, Tex. Civ. App. 44 S.W.2d 764, reversed on other grounds. Appellees object to our considering the assignments, and we think their objections should be sustained.
We are inclined to the opinion that such an objection is well taken. Clevenger v. Burgess (Tex. Civ. App.) 31 S.W.2d 675; Wacasey et al. v. Wacasey et al. (Tex. Civ. App.) 279 S.W. 611; Hill et al. v. Gomez et al. (Tex. Civ. App.) 260 S.W. 618; Houston, E. W. T. Ry. Co. v. Hamlin Lumber Co. et al. (Tex. Civ. App.) 135 S.W. 605; Gibson et al. v. Pierce et al. (Tex. Civ. App.) 146 S.W. 983; Foster et al. v. Gossett et al. (Tex. Civ. App.) 17 S.W.2d 469; International-Great Northern R. Co. v. Miner (Tex. Civ. App.) 54 S.W.2d 216; article 1844, R.C.S., as amended by Acts 1931, c. 75, ยง 1 (Vermon's Ann.Civ.St. art. 1844). Rules 24, 25, and 26 for the governing of Courts of Civil Appeals.
Fifth. The fifth proposition is as follows: "It is error for a court in connection with the submission upon special issues to give a general charge." Under the rule reannounced by this court in Clevenger v. Burgess, 31 S.W.2d 675, this proposition is too general to invoke the jurisdiction of the court. But apart from that point, there is no merit in the proposition.
"Secondary evidence is only admissible after primary evidence is shown not to be available." These propositions cannot be considered since they are too general, as held by us in Clevenger v. Burgess (Tex.Civ.App.) 31 S.W.2d 675, 677. Construing similar propositions in that case, we said: "These assignments are the mere statements of abstract propositions of law, and do not point out any specific error.