author: SHARP, J. CURETON, C. J.

text:
    CITY OF AMARILLO v. WARE.
    No, 1459-5694.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Underwood, Johnson, Dooley & Simpson and Yance Huff, all of Amarillo, for appellant.
    Works & Bassett, of Amarillo, for appellee.
   SHARP, J.

This case is before the Supreme Court upon certified questions from the honorable Court of Civil Appeals of the Seventh district.

The case originated in the district court of Potter county. J. E. Ware sued the city of Amarillo, alleging that he owned a certain tract of land situated about two and one-half miles from the city limits; that his land is located in a natural draw or drain, and is composed of rich valley land and some inferior upland, and a large part thereof is subirrigated, which made it subject to cultivation, upon which valuable crops could be grown. That during the latter part of the year 1927 and the first part of the year 192S the city constructed, and put into service a system of storm sewers, which was completed about April, 1928, and storm water from over a large part of the city was thrown therein. That the system of storm sewers drains some 1,200 or 1,500 acres of land in the city, the streets and alleys of a large portion of which are paved, and other portions of which are covered by roofed buildings, which prevent water soaking in the ground. That the water is finally thrown into one large sewer pipe, the outlet of which is eight or more feet across. That the natural drainage for the water falling in the city is to the southeast and to the west and northwest. That prior to the installation of the system of storm sewers, the water falling in the city drained in that direction. That the city diverted the water by collecting it in the storm sewers and throwing it to the north side oí ■the city on to and across the land owned by Ware. That the city in order to divert the water from its natural drainage and force it through the outlet to the north, it was necessary and the city did sink the pipe forming the outlet for the water in that direction to a depth of about thirty feet, digging through a natural ridge of ground in the north part of the city for the purpose. Theretofore, the natural ridge had prevented the water falling in the city from flowing in a northerly direction and no part of the water falling in the city had theretofore at any time flowed on to or across any of Ware’s land. That since the completion of the sewer system and the diversion of the water from its natural drainage, the result has been that Ware’s land has been overflowed and washed and crops growing thereon have been injured and destroyed. That the land has been overflowed each and every time any considerable rain has fallen in the city, and since the completion of the sewer system the land has been frequently overflowed, the depth and width of the overflow varying according to the amount of rainfall in the city and all of the overflow contributing proximately to the damage herein claimed. That the land is so situated that the natural drainage of the territory in which it is situated would be through and across same, said draw or drain passing diagonally across the land about the middle thereof, but that at no time since the completion of the sewer system has the rainfall in that territory been of sufficient amount to have overflowed any of the land to any great extent, nor has it been of sufficient amount to have damaged any of the’land or injured or destroyed the crops growing thereon. That the water overflowing the land from the sewer remained thereon for a much longer period of time than the water naturally draining across the land, causing same to remain for periods of time running from four or five hours to as long as eighteen hours, and on three or more qccasions since the completion of the storm sewer the land has been overflowed and washed when there was no rain at all in the territory that would naturally drain across plaintiff’s land. That the water flowing in that territory and naturally draining' across the land was an insufficient amount to have overflowed more than a small portion of tfie land, and same would not have remained thereon more.than an hour or so at the most, and would not' have flowed with sufficient force to have washed any of the land or damaged or destroyed the crops growing thereon. That the water so diverted by the city is thrown into the pipes forming the sewer system at great speed and in great quantities. That all of the pipes are made of smooth hard material and are placed in the ground so as to give a rapid fall. That the outlet pipe being given a fall of several feet from the city to where it is emptied out in the north part of the city, the water being thrown thereby out of the pipe with great force and at great speed and in such quantities that when it reaches the land, practically all of which is low level land, it is caused to spread over and overflow same in such way and to remain thereon for such length of time that the land and the soil thereof is washed and carried away and the crops thereon are injured and destroyed. That up to the present time the rainfall in the city, and the territory drained by the storm sewers, are of such capacity that said outlet pipe has at no time been full. That more territory in the city is included in the storm sewer system as now laid out, which will be connected up with the sewer system and drained thereby, and as more streets in said area so drained by the storm sewer are paved, the amount, force, and speed of the diverted water will be greater and same will be diverted on to and across the land in greater speed and force, and caused to spread over the land to a greater depth, thereby ruining and completely destroying the value of the land for the purposes for which the owner has been using same, and for which it is suited. That the sewer system is permanent, and the additional territory in the city will be permanently drained in the future thereby. That the land has been so damaged and appropriated by the city by so using same for. an outlet for the sewer water knd same is and will continue to be a permanent damage and appropriation of the land, the diversion of the water on to and across the owner’s land having been done by the city without the consent and over the protest of the owner.

Ware further alleges that he is the owner of fifteen acres of. the land above mentioned and has erected valuable and permanent improvements thereon for his use as a home, including a house, fences, orchard, etc.; that two acres of the land is subirrigated and is valuable for the raising of garden truck, fruits, alfalfa, and other valuable crops and productsthat about two acres of the land has been so washed that there is now a sag in same upon which water will stand; that plaintiff’s fences have been washed away, etc.; that the - value of the land has been practically destroyed.

There are many other allegations in plaintiff’s petition which tend to amplify the allegations above set forth, together with the allegations as to the crops destroyed and the value thereof.

Plaintiff prkys for a judgment for actual damages, both special and permanent, and for general and special relief, both in law and in equity, etc.

The defendant city presented to the trial court a general exception and several special exceptions, claiming that the plaintiff is not entitled to recovery, in substance, for tile following reasons:

(a) Because that the claim asserted by plaintiff against the city is a claim for damages alleged against the city in the doing and performing of acts of a purely governmental nature, as contradistinguished from those acts of a municipal corporation resulting in monetary gain to it, and that the voluntary acts were for the benefit of the population of such municipality.

(b) That the land owned by plaintiff, damages to which is sought to be recovered, is located north of the city and in a natural drain or draw, and that the natural drain of water falling in the city is to the west and northwest, and that the plaintiff’s land is located in the bed of the natural drain or draw and located to the north of the city in the .direction of the natural drainage of the city.

(c) Because there is no allegation in plaintiff’s petition affirmatively alleging that the watershed drained by the natural draw or drain in which plaintiff’s lands are located was increased in size or area by the construction of the storm sewer-complained of by the city.

(d) There is no allegation that a larger territory of land is caused to drain its surplus water on to plaintiff’s land by virtue of the construction of the storm sewer than would otherwise have been done.

<e) Because plaintiff does not allege that what was done by the city towards carrying out its plan of installing its storm sewer system that in grading and paving of its streets it was in any manner negligent, or that such grading and paving work was negligently done so as to injure the plaintiff, and that under the law the city, being a municipal subdivision of the state, cannot be liable for damages to the plaintiff in grading and paving its streets, etc., unless the grading and paving is negligently done.

(f) Because it is not shown that street grading, street paving, and street improvements resulting in a change of direction in the flow of surface water falling in the city was in any manner negligently done.

(g) Because it is not shown in plaintiff’s petition that the natural area of drainage or watershed was enlarged by the storm sewers in question.

(h) That plaintiff’s petition as a whole in attempting to state a cause of action against the city for damages for alleged permanent injury to the plaintiff’s land by virtue of the overflow of water thereon in question is defective, because under the law the court judicially knows that if the plaintiff has been damaged as alleged by him, such damage may be remedied by construction of other drains. Therefore, damages in the nature of permanent damages to the land in question cannot be recovered, but only such damages as are actually sustained by the plaintiff up to the date of the trial of the cause can be recovered.

The Court of Civil Appeals in its certificate refers to the petition and the answer filed in the trial court. The following questions are certified:

“First: Does the plaintiff’s petition as a whole disclose that the plaintiff’s claim against the city for daihages is based upon acts of the City’s employees which are and were of a purely governmental nature as distinguished from acts purely municipal which resulted in financial gain to said city?
“Second: It being admitted that there is no allegation or proof of negligence in the construction of its pavement or sewer by the city, can the plaintiff recover in the absence of such allegation and proof?
“Third: The plaintiff, having plead ‘that since the completion of said sewer system and the diversion of the water falling in said defendant city from its natural drainage and forcing same on to and across plaintiff’s land, same have been overflowed each and every time any considerable rain has fallen in said defendant city, and that since the completion of the sewer system and the diversion of said water, said lands have been overflowed on or about the following dates, to-wit: May 11, 13, 16, 1928, June 26, 1928, July 21 and 22, 1928, August 12, 1928, October 31, 1928, November 13, 1928, November 16, 17 and 18, 1928, March 27, 1929, May 11 and 17, 1929, and August 6, 1929, the depth and width of said overflow waters on said lands varying according to the amount of the rain falling in said defendant city’; there being no pleadings contained in the plaintiff’s petition to the effect that storm sewer water flows through the storm sewer in question and across the plaintiff’s lands at all times, and the evidence having shown that plaintiff’s land was overflowed only at intermittent intervals when rain fell in the City of Amarillo, and’ that the different overflows were in varying depths and amounts and produced varying degrees of damage, but the plaintiff, having plead and the evidence having shown that the storm sewer in question which diverted the water on to the plaintiff’s lands where it would not have flowed but for said storm sewer, was a concrete structure of permanent nature, will the plaintiff’s petition and the evidence support a recovery of permanent damages to the land as measured by the "difference between the reasonable market value of the plaintiff’s land before and after the opening of ■ the storm sewer in question, or will the plaintiff be restricted to the recovery of special' damages predicated upon damages occasioned by successive overflows?
“Fourth: The damage to plaintiff’s land having been alleged to be permanent and the recovery thereof being based upon irrevocable and permanent injury, was it proper for tbe Trial Court to admit evidence of tbe value of tbe crops alleged to bave been destroyed?”

Tbe rule is firmly established in tbe Constitution and decisions of tbis state that “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by tbe consent of such person.” Section 17, art. 1, Constitution of Texas; Ft. Worth Improvement Dist. No. 1 v. Ft. Worth, 106 Tex. 148, 158 S. W. 164, 48 L. R. A. (N. S.) 994; Gulf, C. & S. F. Railway Co. v. Fuller, 63 Tex. 467; McFaddin v. Jefferson County Drainage Dist. No. 6 (Tex. Com. App.) 4 S.W.(2d) 33; Gainesville, II. & W. Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Powell v. Ry. Co., 104 Tex. 219, 135 S. W. 1153, 46 L. R. A. (N. S.) 615; Texas & P. Ry. Co. v. Hardin (Tex. Civ. App.) 168 S. W. 1017 (Writ Ref.); Southern Traction Co. v. Fears (Tex. Civ. App.) 199 S. W. 856 (Writ Ref.).

Many decisions of tbe courts of tbis state are in harmony in bolding that cities, drainage districts, levee improvement districts, etc., which are defined under tbe law ■as governmental agencies, are responsible for damage or injury to a person’s property inflicted in tbe performance of their acts and functions primarily for tbe benefit of those within tbe corporate limits of tbe municipality. Brewster v. City of Forney (Tex. Com. App.) 223 S. W. 175; Hidalgo County Water Improvement District v. Holderbaum (Tex. Com. App.) 11 S.W.(2d) 506; City of Ft. Worth v. Wiggins (Tex. Com. App.) 5 S.W.(2d) 761; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909; White v. City of San Antonio, 94 Tex. 313, 60 S. W. 426; City of Galveston v. Posnainsky, 62 Tex. 127, 50 Am. Rep. 517; Hidalgo County Water Control & Improvement District No. 1 v. Peter et al. (Tex. Com. App.) 37 S.W.(2d) 133.

However, tbe rule is recognized that a municipality is exempt from liability when it performs a duty imposed upon it as tbe arm or agent of ,the state in tbe exercise of a strictly governmental function solely for tbe public benefit. That tbe exemption of a governmental agency from liability pertains only to those acts or functions which are performed as the agent of the state in furtherance of general law for tbe interest of the public at large, as distinguished from those acts and functions intended primarily for the benefit of those within the corporate limits of a municipality. McQuillin on Municipal Corporations (Second Edition) Yol. 6, §§ 2792 and 2793 ; City of Ft. Worth v. Wiggins, supra; Ostrom v. San Antonio, supra; White v. City of San Antonio, supra; City of Galveston v. Posnainsky, supra.

A statement of the rule that where a municipality is acting as the arm or agent of the state in the exercise of a strictly governmental function solely for the public benefit, which would exempt it from liability for its acts, when considered in the light of the facts involved in this case, contained in the foregoing certificate, clearly shows that the city of Amarillo does not come within the rule announced. It is quite evident that the acts complained of were done not in the exercise of a strictly governmental function solely for the public benefit, but it was done primarily for the benefit of that portion of the public within the corporate limits of the city.

We answer Question No. 1 “No.”

In answer to the second question, we will say that the language used in section 17 of article 1 of the Constitution, which in' effect says that no person’s property shall be taken or damaged without just compensation, has no exception or limitations attached thereto. It is a plain, pointed, definite statement of a rule which prevails in this state, and the liability for compensation of property damaged or taken is not predicated upon the theory that the tortious act was done negligently or intentionally.

In McQuillin on Municipal Corporations (2d Ed.) § 2792, page 759, that distinguished author, in discussing the liability of a municipality for its torts in the performance or nonperformance of municipal or corporate duties as distinguished from governmental duties, announces the following well recognized rule: “In other words, where its officers or servants are in the exercise of power conferred upon the municipality for its private benefit or pecuniary profit, and damage results from their negligence or misfeasance, the municipality is liable to the same extent as in the case of private corporations or individuals.”

This rule seems to be founded upon the well-recognized principles of law and equity, and is fully sustained by the decisions of this state, as well as by opinions from the courts of many other states. Ostrom v. City of San Antonio, supra; City of Ft. Worth v. Wiggins, supra; Brewster v. City of Forney, supra ; Cawthorn v. City of Houston (Tex. Com. App.) 231 S. W. 701.

We answer Question No. 2 “Yes.”

The pleadings and proof show that the sewer system constructed by the city of Amarillo is a permanent structure; that it is so considered and treated as being permanent; that the sewer system was completed in April, 1928, and soon thereafter, by reason thereof, the water was thrown on and across the land of plaintiff with a greater force and in larger quantities than was done before the construetion of the system; that the water will remain on the land much longer and to a higher depth than ever before; that the city contemplates enlarging the sewer system, which will increase the flow of water across plaintiff’s land in the future; that the land has been washed and injured to such an extent that it is permanently damaged.

The case of Rosenthal v. T., B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268, 269, involved the measure of damages alleged to have resulted to a lot of land from the construction of a railroad and the operation of its trains in front of the property. Judge Gaines, in speaking for our Supreme Court in reviewing the authorities bearing upon this rule, says:

“ ‘If it results from a cause which is either permanent in its character or which is treated as permanent by the parties, it is proper that the entire damage should be assessed with reference to the past and probable future injury.’
“The language quoted is peculiarly applicable to this ease. The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that'measure of damages which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when the nuisance is likely to be removed by any agency, the damages which have accrued only up to the time of the action will be allowed; but if the nuisance is permanent, and the injury constantly and regularly recurs, then the whole damage may be recovered at once. In a ease like this the resulting depreciation in the value of the property is the safest measure of compensation. Here it may be inferred from the evidence that the injury recurs upon each considerable rain-fall, and continues during a stage of offensive stagnation until the water evaporates. The defendant seems to have treated the work as permanent, since they have failed, upon application, to make a culvert for the passage of the water; and we are of opinion the depreciation in the value of plaintiff’s property is the most certain measure of his damages for the injury.”

The rule stated above has been followed by a line of decisions and now seems to be a well-established ryle prevailing in this state. Baugh v. T. & N. O. Ry. Co., 80 Tex. 56, 15 S. W. 587; Gainesville, H. & W. Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Denison, B. & N. O. Railway Co. v. Barry, 98 Tex. 248, 83 S. W. 5; Brewster v. City of Forney (Tex. Com. App.) 223 S. W. 175.

In the case of Baugh v. Railway Company, supra, the Supreme Court reaffirms the rule announced and says: “When a nuisance is created by the construction of works in their nature permanent, and which, as sometimes occurs in case of works for a public use, are not subject to be abated, the rule is that all damages resulting therefrom to property may be recovered in one action, and the proper measure of damages is the depreciation in the value of the property. Rosenthal v. Railway, 79 Tex. 325, 15 S. W. 268; Railway v. Hall, 78 Tex. 169, 14 S. W. 259 [9 L. R. A. 298, 22 Am. St. Rep. 42]. That rule also applies when the injury resulting from the nuisance is of a permanent character.”

As applied to the facts of this case, the rule is now well established in this state that the measure of damages for a permanent injury to plaintiff’s land is the difference in the reasonable market value thereof immediately before and immediately after the injury. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S. W. 575; Hidalgo County Water Control & Improvement District No. 1 v. J. R. Peter (Tex. Com. App.) supra; City of San Antonio v. Mullaly, 11 Tex. Civ. App. 596, 33 S. W. 256; Railway v. Barry, supra; Missouri, K. & T. R. Co. of Texas v. Dennis (Tes. Civ. App.) 84 S. W. 860; T. & P. Ry. Co. v. Ford, 54 Tex. Civ. App. 312, 117 S. W. 201; Owens v. Navarro County Levee Improvement District No. 8 (Tex. Civ. App.) 281 S. W. 577.

This rule rests upon the proposition that the result of a recovery upon such a cause of action means full compensation for all the injuries growing out of the construction of' the sewer system and embraces not only the past but future overflows as well.

In some cases where the construction of the improvements and the injury complained of by reason thereof were closely related in point of time, the rule has been stated that the measure of damages for permanent injury to land is the difference in the market value just prior to the time of the construction of the improvements and immediately subsequent to such improvements. Owens v. Navarro County Levee Improvement District No. 8, 115 Tex. 263, 280 S. W. 532; Southern Traction Co. v. Fears (Tex. Civ. App.) 199 S. W. 856; Texas Cent. R. Co. v. Brown, 38 Tex. Civ. App. 610, 86 S. W. 659.

Generally speaking, the rule last stated is not flexible enough to meet the ends of justice in all cases. As in this case, the sewer system was constructed, perhaps in good faith, upon the belief that the water passing through the sewer system would be handled in such a way as not to inflict any injury upon the land of plaintiff or anyone else, yet, when put to the actual test, it was shown that this theory was wrong, and as a result of the construction of the sewer system and the water diverted from its natural course, it was clearly demonstrated that plaintiff’s land was damaged. It is well known that the rain-fall, in Texas during certain periods is scant, and it would be impossible to ascertain wbat damages would be inflicted npon land or other property by reason of the construction of certain improvements until put to the actual test. In other words, where the result is uncertain, the owner of property, if he so desires, has the right to wait and see what the result will be when the improvements are subjected to an actual test. Again, for instance, if a municipality or any other governmental agency should undertake to construct certain permanent improvements which would require several years to complete, and during the construction of the improvements, or a part thereof, certain property should be destroyed or permanently injured, it would be violative of every principle of right and justice to compel the owner to wait until the completion of the improvements before a suit could be maintained for a recovery of the damages sustained. ,

It follows from what we have said that the pleadings and proof support a recovery for permanent damages to the land as measured by the difference between the reasonable market value of the plaintiff’s land before and after the opening of the storm sewer in .question, and that plaintiff will not be restricted to the recovery of special damages predicated upon damages occasioned by successive overflows.

In answer to the fourth question, the record discloses that the plaintiff, having sued for the permanent injury to his land, was entitled to recover as the true measure of his damages claimed the difference in the value of the land immediately before and immediately after the injury. In addition to the damages sustained to his land, he was entitled to recover as. a measure of damages to his then growing crops thereon the difference between the value of the crop j.ust before and just after the damage. This rule has been so well discussed and the authorities bearing thereon reviewed in the case of Raywood Rice Canal & Milling Co. v. Langford Bros., 32 Tex. Civ. App. 401, 74 S. W. 926, 928 (Writ Ref.), we quote from the opinion as follows:

“The measure of damages in such a case is stated to be the difference between the value of the crop just before and just after the damage. In speaking of the value of the growing crop at the time of the injury, of course was meant its value for the purpose of continuing its cultivation to maturity, for in most, if not all, cases, it would be valueless for any other purpose. In ascertaining its value, proof must be heard either as to'the market price or its intrinsic worth, and it follows that any witness who undertakes to speak intelligently as to its value must base his figures upon a sound estimate of what the crop would probably produce if well cultivated and uninjured, and to deduct from that result the cost of cultivation and marketing.”

It is further said: “In Ry. Co. v. Pape, 73 Tex. 503, 11 S. W. 526, Justice Gaines, in a case involving damage to a growing crop, after stating the rule in substance as above, and remarking upon the fact that usually there would be no market for such a thing, uses the following language: ‘It follows that in such a case some other method must be resorted to for the purposes of ascertaining its value. It seems to us that, as a general rule, the most satisfactory means of arriving at the value of growing crops is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transmission to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and placing it there, will in most cases give the value of the growing crop with as much certainty as can be attained by any other method.’ It is apparent from the language quoted that our Supreme Court has taken into consideration and adopted the methods which the ordinary witness as to value will naturally and logically employ in speaking to the value of a growing crop, and thus _ the court is indirectly influenced- and controlled in such an inquiry by the estimated yield. The following Texas cases have followed the rule as stated: Ry. Co. v. Borsky, 2 Tex. Civ. App. 545, 21 S. W. 1011; Ry. Co. v. Simonton, 2 Tex. Civ. App. 558, 22 S. W. 2S5; Ry. Co. v. McGowan, 73 Tex. 355, 11 S. W. 336; Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526; Ry. Co. v. Joachimi, 58 Tex. 456.” See Ry. Co. v. Schofield, supra; F. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227.

The record shows that the sewer system was completed in 1928, and that damages to the land and crops growing thereon resulted during that year from overflow water caused from the completion of the sewer system. Evidence was introduced tending to show the condition and value of the crops injured during the year 1928 at the.time the land was injured, and also with respect to the crops growing thereon in 1929. Plaintiff had the right to introduce testimony with reference to the condition and value of his crops growing ofl the land in 1928 at the time the land was injured and had the right to recover damages sustained by him to the crops growing thereon at that time. All other evidence with reference to damages to crops grown on the land during other years would not be admissible, except for the purpose of showing the extent of the injury to the land, its failure to grow crops thereon as it did before the injury, and to show the market value of the land at the time of its injury.

In view of the nature of question No. 4, it cannot be answered categorically “Yes” or “No.”

We recommend that the foregoing questions be answered as indicated.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


source: Caselaw Access Project

license: Public Domain

text:
    FEDERAL SURETY CO. v. RAGLE.
    No. 1468-5706.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of'Dallas, for plaintiff in error.
    Grindstaff, Zellers & Hutcheson, of Weath-erford, for defendant in error.
   SHARP, J.

This suit was instituted in the district court of Jack county by the Federal Surety Company to set aside an award of the Industrial Accident Board made in fayor of W. E. Ragle for 100 weeks’ compensation for the loss of the sight of his eye sustained by him as a result of an accident occurring while he was attempting to start a car. Ragle was employed by Shaw & Rathke, a copartnership engaged in the business of producing oil and gas and who were subscribers under the Workmen’s Compensation Act (R. S. 1925, art. 8306 et seq.) with the’ Federal Surety Company; that Ragle was a foreman for Shaw & Rathke, who were engaged in drilling an oil well on a farm about six miles from the town of Bryson; that it was Ragle’s duty to see that the men employed upon the lease reported for duty; that no arrangement had been made upon the lease to house and care for the employees, and that the greater number, including Ragle, who resided in the town of Bryson, went to and from the lease; that Shaw & Rathke had not assumed any obligation to provide means of transportation for the workmen, but such workmen as resided in Bryson provided their own means of transportation, sometimes driving their own automobile and at other times riding with a coemployee; that on or about December 27, 1927, while Ragle was so employed, and a short time before the end of the day’s work, he sent one of the employees to the car of the coworker, with whom he had arranged to ride home, to crank the car and get it ready for the journey; that such employee reported that he was unable to start the motor; and that Ragle laid aside his work clothes, went to the car, and, in an effort to crank it, a spark plug or something blew out and struck him in the left eye, which resulted in a complete loss of its sight.

The trial before the court resulted in a judgment for Ragle for 100 weeks’ compensation at the rate of $20 per week, which judgment was affirmed by the Court of Civil Appeals. 25 S.W.(2d) 898. A writ of error was granted oñ the alleged conflict of opinions.

Plaintiff in error contends that:

(1) Since it appears from the evidence that Shaw & Rathke did not undertake to, and did not, furnish any transportation for W. E. Ragle, and that the injury complained of was sustained by said Ragle after he had quit work for the day, and while voluntarily engaged in starting an automobile for the purpose of transporting himself from his work to town, the injury was not sustained,while in the course of employment.

"(2) Since the employee, Ragle, under the terms of his employment, was to furnish his own transportation to and from his work, the injury sustained by him while engaged in attempting to start an automobile by which’he was to be transported from his work was not an injury having to do with and originating in the work of his employer.

The single question presented for consideration is: Were the'injuries for which compensation was sued for and awarded received by the defendant in error while engaged in or about the furtherance of the business of his employer and did they originate in and arise out of such employment?

Article 8309, R. S. 1925, provides that, with certain exceptions not relevant here, such injuries “shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

The judgment of the trial court recites that defendant in error suffered the accidental injury on the day stated “while in the course of his employment for Shaw & Rathke in Jack County, Texas; and that at the time of said injury he was engaged in and about the furtherance of the affairs arid business of the said Shaw & Rathke, and that the said injury had to do with and originated in his employment with the said Shaw & Rathke and around and upon the premises of the said Shaw & Rathke and that the injury is com-pensable under the Workmen’s Compensation Act of the State of Texas.”

The Court of Civil Appeals, in its opinion, found as follows: “In the case before us, the appellee’s injury was sustained on the premises of his employer and in the immediate vicinity of appellee’s work. While appellee’s employer had not assumed the obligation of transporting appellee and his colaborers to and from Bryson to the work, yet it knew of the arrangement followed, and plainly recognized the necessity of the method of transportation. Appellee at the time was engaged in the performance of an act necessary to transport him and others over th'e roadway across the lease to the main traveling way leading to Bryson, his home, thus, as we conclude, falling within the beneficial terms of the Workmen’s Compensation Act.”

The record shows that Ragle was foreman of the crew on work at the well; that no place was prepared there for the men to stay while not at work; that they, as a matter of course, would be compelled to go to and from their work. At the time Ragle was injured, the day’s work was not terminated, and, for the purpose of furnishing the men at work on the well, and under his control, a means of transportation, he undertook to start the car in which they would ride home and was injured.

Since it was not required nor contemplated that Ragle should spend the nights or time when not at work at the well where no accommodations had been provided for him and his crew, it was necessary, in order for him and the men to discharge their duties required of them each day, that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.

The rule is now well established in this state that an injury has to do with and arises out of the work or business of the employer so as to be an “injury sustained in the course of employment” within the Workmen’s Compensation Act, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent or incidental to the conduct of such work or business. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 73, 28 A. L. R. 1402; Kirby Humber Co. v. Scurlock, 112 Tex. 115, 240 S. W. 77; United States Casualty Co. v. Hardie (Tex. Com. App.) 299 S. W. 871; Petroleum Casualty Co. v. Green (Tex. Civ. App.) 11 S.W.(2d) 388, 390 (writ denied); Employers’ Liability Assurance Corporation v. Light (Tex. Civ. App.) 275 S. W. 685 (writ refused); Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 154, 68 L. Ed. 366, 30 A. L. R. 532.

In the Corpus Juris treatise on Workmen’s Compensation Acts, § 64, pp. 73, 74, the rule is announced as follows: “It has been well said that it is not easy to give a comprehensive definition of the words ‘arising out of the employment,’ which shal} actually include all cases within the act, and with precision exclude those without its terms. An injury may be said to arise out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the' resulting injury. A risk is ‘incidental to the employment’ when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. It may be either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment. An -injury which is a natural and necessary incident or consequence of the employment, although not for-seen or expected, arises out of it; nor need it he peculiar to the particular employment.”

In the case of Lumberman’s Reciprocal Ass’n v. Behnken, supra, in a very afole and exhaustive opinion, the Supreme Court, speaking through Judge Greenwood, says:

“An injury has to do with, andi arises out of the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa:
“ ‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ Pace v. Appanoose County, 184 Iowa, 498, 168 1ST. W. 918.
“Though injuries arising from risks incidental to employment most frequently occur during hours of active labor and on premises within the control of the employer, yet they are not always so circumscribed either as to time or place. I. & G. N. Ry. Co. v. Ryan, 82 Tex. 571, 18 S. W. 219; H. E. & W. T. Ry. Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1151; Latter’s Case, 238 Mass. 326, 130 N. E. 638. Our statute declares that it is not necessary to fix liability that the injury be sustained on the employer’s premises.”

It is also equally well established that all dangers and perils incident to use of usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and “arising out of employment,” as provided for under article 8309, R. S. 1925. Petroleum Casualty Co. v. Green, supra; Employers’ Liability Assur. Corp. v. Light, supra; Cudahy Packing Co. v. Parramore, supra.

The Corpus Juris treatise on Workmen’s Compensation Acts, § 75, pp. 8A-85, announces the following general rule as follows: “As a general rule accidents which happen to an employee on his way to and from work are not regarded as in the course of his employment, except while he is at or so near the place of employment as reasonably to be regarded as in effect at the place; or where, if not on the employer’s premises, he is at or near the place of work and on a road or other way intended by the contract of employment as being the means of access to the work.”

The case of Petroleum Casualty Co. v. Green, supra, involved a case where the facts ih favor of the claimant were not as strong as the facts involved in this suit, and judgment in favor of the plaintiff was sustained. Chief Justice Gallagher, in a well-considered opinion, says:

“It was not necessary that the injury complained of by appellee should have been sustained during the hours of actual service which he was required by the terms of his employment to render to said company. The course of his employment was not limited to the exact moment when he reported for duty at the camp that morning, nor to the moment when his labors for the day were completed. It necessarily included reasonable time thereafter to return from said camp to the highway in the usual and customary manner. Lumberman’s Reciprocal Ass’n v. Behnken, supra; Employers’ Liability Assurance Corporation v. Light (Tex. Civ. App.) 275 S. W. 685, 687 (writ refused), and authorities there cited; Wabash Railway Co. v. Industrial Commission, 294 Ill. 119, 128 N. E. 290, 292; Judson Mfg. Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1, 2. Neither was it necessary that appel-lee should have been at the time discharging some specific duty required by his employment. It was sufficient that he was at the time engaged in doing something incident to his employment. We quote on this issue from United States Casualty Co. v. Hardie (Tex. Com. App.) 299 S. W. 871, 874, as follows:
“ ‘An accident arises in the course of and out of the employment when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duty and while he is fulfilling that duty or engaged m doing something incidental thereto.’ (Italics ours.)
“The leaving of the premises where appel-lee was employed was so closely connected with his employment as to render it a necessary incident thereto. Wabash Railway Co. v. Industrial Commission, supra (294 Ill. 119), page 293 of 128 N. E.”

The case of Cudahy Packing Co. v. Parramore, supra, involved the construction of a similar statute enacted by the state of Utah. The facts of that case were that the Cudahy Packing Company owned and operated a plant at a point about six miles from Salt Lalie City. Its employees generally resided in that city and other places, only a few living in the immediate vicinity of the plant. The only practicable way of ingress and egress for employees was along the road and across some railroad tracks, and that was the way customarily used. Parramore, the claimant, was employed at the plant as stationary engineer. He lived at Salt Lake City. On the morning of August 9, 1921, he rode to the plant in the automobile of another employee for the purpose of going to work. In passing over the railroad track, -the automobile in which he was riding was struck by an engine, and Parramore was killed. This happened about seven minutes before the time when his service as engineer was to begin. In answer to the contention made that the accident was one which occurred off the prem-iseá of the employer, on a public road, outside the hours of employment, and while the employee was not engaged in any business of the employer, that it was not the result of any industrial risk, but arose from a common peril to which -the public generally was exposed, the Supreme Court of the United States, after discussing the purpose of Workmen’s Compensation legislation, in an exhaustive opinion, said: “The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured. And this is not to impose liability upon one person for an injury sustained by another with which the former has no connection; but it is to say that it is enough if there be a causal connection between the injury and the business in which he employs the latter — a connection substantially contributory though it need not be the sole or proximate cause. Legislation which imposes liability for an injury thus related to the employment, among other justifying circumstances, has a tendency to promote a more equitable distribution of the economic burdens in eases of personal injury or death resulting from accidents in the course of industrial employment, and is a matter of sufficient public concern (Mountain Timber Co. v. Washington, 243 U. S. 239, 61 L. Ed. 697, 37 S. Ct. 260, Anp. Cas. 1917D, 642, 13 N. C. C. A. 927) to escape condemnation as arbitrary, capricious, or clearly unreasonable. Whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can' be laid down which will automatically solve every case.”

We quote again from the same opinion: “We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose. See Gane v. Norton Hill Colliery Co. (1909) 2 K. B. 539, 544, 78 L. J. K. B. N. S. 921, 100 L. T. N. S. 979, 25 Times L. R. 640, 2 B. W. C. C. 42; De Constantin v. Public Service Commission [75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A, 329] supra.”

We have quoted liberally from the opinion rendered in the case of Cudahy Packing Company v. Parramore, supra, for the purpose of showing the tendency of the courts to construe " liberally the compensation statutes. The facts of this case do not require that the rule be extended as far as it was done in that case. Therefore it is not necessary to approve or disapprove the broad rule announced therein.

It is further contended that, since the cranking of the car by claimant was a voluntary act, done for personal purposes, the danger attending such act was not a peril or hazard incident to his employment. It is unquestioned that the employer had not any way undertaken to furnish transportation for Ragle to and from the lease. It was necessary under the arrangements made, or lack of arrangements,-for Ragle to have some means of transportation from the premises to his home. It is plain that the means employed must have been necessarily known to the employer and to have been tacitly approved and consented to by them. This pre-. cise question was decided adversely to the contention made by plaintiff in error in the case of Petroleum Casualty Co. v. Green, supra; Employers’ Liability Assurance Corporation v. Light, supra; and Cudahy Packing Co. v. Parramore, supra.

The rule is recognized that, where an accident is in no manner related to the employment, and an attempt to make the employer liable therefor would be clearly unreasonable and arbitrary, it would not come under the provisions of the workmen’s compensation statutes of this state, and no recovery could be had therefor. There is-no disposition on our part to question that sound rule or the authorities which support it.

The courts, as a general rule, have given the compensation statutes a liberal construction. The purpose of the law was to do away with the issues of negligence, accident, assumed risk, contributory negligence, and other like issues, and to further provide that the amount recoverable be free of any uncertainty. Both employer and employee were dissatisfied with the old system of litigation, which was expensive. The compensation for injuries to an employee is no longer founded upon the fault or negligence of the employee, but is awarded upon broader and more humane rules. This rule has become a part of the industrial and economic structure created by modern conditions and development. This class of legislation rests upon the broad rule that the injured workman is entitled to compensation for an injury sustained in the service of an industry, regardless of the question of negligence or fault on his part. Our Supreme Court has announced the sound and humane rule that the Workmen’s Compensation Act is “a remedial statute which should be liberally construed with a view to accomplish its purpose and to promote justice.”

When we keep in mind that the lease where Ragle and the men worked was at a. place where no arrangements for their accommodation had been made, situated six miles from the place where they resided; that an automobile was the only practical means of getting to and from the work; that it was parked on or near the premises where the men worked; that Ragle, during the hours of his employment, undertook to crank the automobile for the purpose of furnishing the men at work a means of transportation in which to ride home and was injured — these facts bring the case clearly within the rule announced by our Supreme Court in the Behnken Case, supra, and it is therefore com- - pensable under the provisions of the Workmen’s Compensation Act.

We recommend that the opinion of the Court of Civil Appeals be in all respects affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


text:
    STEPHENS COUNTY v. J. N. McCAMMON, Inc.
    No. 1457-5692.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    T. B. Ridgell, Lyndsay D. Hawkins, and W. J. Arrington, all of Breckenridge, for appellant.
    Goggans & Allison, of Breckenridge, for ap-pellee.
   SHARP, J.

The Honorable Court of Civil Appeals for the Eleventh Judicial District submits to the Supreme Court the following certified questions:

“In this cause the appellee, J. N. MeCam-mon,‘ Inc., plaintiff below; sued the appellant, Stephens County, defendant below, for damages growing out of the alleged breach of a contract, by the terms of which it is alleged the plaintiff was employed by the commissioners’ court as an architect to prepare plans and specifications for, and to supervise the proper construction of, a combination courthouse and jail in said county. The plaintiff recovered a judgment for the damages alleged, and in the original opinion by this court, of date March 21st, 1930, we reversed the cause upon the sole point that the trial court should have permitted the defendant, Stephens County, to withdraw certain pleadings and urge a plea in abatement, based upon the contention that the plaintiff, appellee here, had failed to pay its franchise tax, and was, therefore, without authority to institute and maintain the suit in the courts of this state. There is attached hereto and made a part hereof this court’s original opinion reversing the judgment of the trial court.
“The cause is now pending in this court upon motion for rehearing by the appellee, and that motion for rehearing is accompanied by a certificate from the Secretary of State, showing that the appellant, a corporation, since the rendition of our original opinion, has paid its franchise tax, and by reason thereof had its right to do business in Texas revived as per the certificate of the Secretary of State, which is as follows:
“ ‘The State of Texas
“ ‘Department of State
“ *1, Jane T. McCallum, Secretary of State of the State of Texas, hereby certify that J. N. McCammonj Inc., a domestic corporation of Dallas, Texas, has this day paid all franchise taxes and penalties due by it to the State of Texas from May 1, 1927, to May 1, 1931, amounting to $68.50 and by reason thereof its right to do business has this day been revived and notation to that effect has been entered on the ledger account of such corporation.
“ ‘[Seal.]
“ ‘In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereón the Seal of State at my office in the City of Austin, this 1st day of April, A. D., 1930.
“ ‘Jane X. McCallum, Secretary of State.’
“In passing upon this motion for rehearing we are, therefore, presented with the question of whether we have the authority to act upon the information contained in the certificate, or must look only to the record proper as brought to this court. Of course, the fact evidenced by the certificate did not exist at the time of the trial of the lawsuit in the court below, nor at the time this court rendered its original opinion. The certificate appears for the first time in this court attached as an exhibit to the appellee’s motion for rehearing. This statement is made in view of the following question to be propounded,-viz. :
“1. Can this court act upon the information contained in said certificate and by reason thereof regard as moot the question arising from the failure of said corporation to pay its franchise tax, and thereupon be under the duty or have the authority to pass to a consideration of the additional assignments upon which the appeal is predicated ?
“As a basis for the other questions this court deems it necessary to propound to the Supreme Court, the following additional statement of the record in this cause is'made. The appellee, J. N. McCammon, Inc., brought this suit against Stephens County, alleging that on September 22nd, 1924, the county, acting through its commissioners’ court, contracted with the Mid-West Company, Inc., a Texas corporation which thereafter merely changed its name to J. N. McCammon & Co., Inc., whereby it was agreed that the Mid-West Co., Inc., would, for a consideration, perform for the county certain architectural work and services pertaining to the making and furnishing of plans and specifications for a courthouse and jail to be erected in that county, and to supervise the work or construction thereof. This contract is found on page 77 et seq. of the statement of facts, and is here referred to and made a part of this certificate.
“The stockholders of the Mid-West Co., Inc., were J. N. McCammon, a professional architect, A. D. McCammon, his wife, and S. J. McFarland, a banker. At a meeting of said stockholders on June 29th, 1925, the name of the corporation was changed to J. N. McCammon & Co., Inc., the stockholders remaining the same and the charter being unchanged, except as to its name. The contract was signed by the contracting parties in the following manner:
“ ‘County of Stephens,
“ ‘By E. F. Ritchey, County Judge,
“ ‘H. B. Downing
“ ‘W. I. Hunt
“ ‘ J. W. Horton
“ ‘S. A. Reynolds
“‘The Mid-West Company, Inc.,
“ ‘By J. N. McCammon, President.’
“The first article of the contract is as follows:
“ ‘Article 1. The architect’s services. The architect’s professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings ; the drafting of forms of proposals and contracts; the issuance of certificates of payment ; the keeping of accounts, the general administration of the business and supervision of the work.’
“This provision of the contract is here inserted, because it especially reflects the na-tare of the services which the county sought and which Mid-West Company, Inc., and its successor undertook to perform. But it is desired that each provision of the contract bearing upon the questions propounded be considered in this connection, since the contract as a whole has been made a part hereof. Further, the plaintiff in his petition sought the recovery of the sum of $21,500.00 and, less some credits sought and allowed, recovered a judgment for the sum of $18,500.00, with 6 per, cent interest from its date. •
“The purpose for which the -appellant corporation was formed is to be found in subdivision 45 of article 1302, R. S. 1925, and reads as follows:
“ ‘The purpose for which private corporations may be formed are: * * * 45. To design, purchase or sell, steel and iron and other metal products, and the manufacture of any or of all such products, and to design, sell, construct and erect engineering and architecture (architectural) structures, and to contract for the construction and erection of such structures.’
“An architect’s work being professional in its nature, and subdivision 45 above embracing no express authority to a corporation to perform the functions ‘the general administration of the business and supervision of the work’ stipulated for in article 1 above, and as contemplated by the contract as a whole; and since article 2368, B.. S. 1925, provides that: ‘No commissioners’ court shall make a contract calling for or requiring the expenditure or payment of $2000.00 or more out of any fund or funds of any county * * ' * without first submitting such proposed contract to competitive bids’; and since the contract was not awarded on competitive bids, we find it necessary to certify for your decision the following additional questions:
“2. Had Stephens County the authority in-law to enter into the foregoing contract with the Mid-West Co., Inc., a corporation, without first submitting the proposed contract to competitive bids?
“3. In view of that provision of the contract (Art. 1) calling for ‘the general administration of the business and supervision of the work’ by the corporation, was the contract ultra vires as to the Mid-West Co., Inc., and for that reason nonenforcjble as to Stephens County at the date of its alleged breach?
“The members of this court entertaining a diversity of opinion upon the questions presented, it is deemed proper and expedient to certify to Your Honorable Court the questions hereinbefore noted, and answers to them are respectfully requested.”

As shown by the certificate, the original opinion of the Court of Civil Appeals is attached thereto and made a part thereof. We quote from that opinion as follows: “At the time the alleged contract was entered into and-at the time of the alleged breach thereof, plaintiff corporation was in good standing with the right to transact business contemplated by its charter.”

It is contended that by reason of article 7091, K. S. 1925, appellee having failed to pay its franchise tax, it was precluded from maintaining this suit in any of the courts of this state.

It appears from the opinion that the corporation has not been dissolved; that only its right to do business in the state was suspended by the failure to pay the franchise tax. The corporation, not having been dissolved, is still in all respects a legal entity. This suit arose over the breach of contract made while it was in good standing and its right to do business in this state unquestioned. It is now seeking to recover its right caused from the breach of a contract occurring while it had the right to do business and legally acquired before the secretary of state •noted the forfeiture.

In the case of Federal Crude Oil Co. v. Yount-Lee Oil Co. (Tex. Com. App.) 35 S.W. (2d) 111, 114, which involves a similar question, in an opinion by Judge Kyan, it is said:

“The act of the secretary of state cannot be given the effect of closing the courts to the corporation and precluding a recovery by it of property it had already and lawfully acquired. Texas Land & Mortgage Co. v. Worsham, 76 Tex. 556, 13 S. W. 384; Deveny v. Success Co. (Tex. Civ. App.) 228 S. W. 295; Kingman Implement Co. v. Borders (Tex. Civ. App.) 156 S. W. 614.
“A corporation’s right to carry on its business may by law properly be terminated for failure to pay a franchise tax, but the cessation of its right to do business does not work a forfeiture of its property and denude it of the right to protect the same. It follows as a necessary corollary that it has the right to so protect itself and its property by judicial remedy. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556; Hendrickson v. Apperson, 245 U. S. 105, 38 S. Ct. 44, 62 L. Ed. 178; Turnpike Co. v. Sandford, 164 U. S. 578, 17 S. Ct. 198, 41 L. Ed. 560; Osborn v. Nicholson, 13 Wall. 654, 20 L. Ed. 689.
“So, inasmuch as the corporation’s rights had become legally vested, before the termination of its right to do business for failure to pay a franchise tax, that termination did not destroy or impair its ownership of the property, nor coul'd it deprive the corporation of the right to enforce its ownership in the courts. 1 Cooley on Constitutional Limitations (8th Ed.) pp. 592, 593.”

Section 18 of article 16 of the Constitution of Texas, in part, reads: “The rights of property and of action, which have been acquired under the constitution and the laws of the republic and state, shall not be divested.” See section 16 of article 1 of the Constitution.

It seems to be a well-settled rule, supported by both state and federal decisions, that rights, necessary to corporate object and vested under charter, cannot be impaired.

In the case of Pearsall v. Great Northern Ry. Co., 161 U. S. 646, 16 S. Ct. 705, 713, 40 L. Ed. 838, the Supreme Court of the United States, in discussing the vested rights of a corporation chartered under existing laws, says: “A ‘vested right’ is defined by Fearne, in his work upon Contingent Remainders, as ‘an immediate, fixed right of present or future enjoyment;’ and by Chancellor Kent as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.’ 4 Kent, Comm. 202. It is said by Mr. Justice Cooley that ‘rights are vested, in contradistinction to being expectant or contingent. They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when, they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.’ Const. Law, 332.” See New York Electric Lines v. Empire City Subway Co., 235 U. S. 179, 35 S. Ct. 72, 59 L. Ed. 184.

Chief Justice Phillips, speaking for our Supreme Court, in the case of Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556, 560, says: “A vested right of action given by the principles of the common law is a property right, and is protected by the Constitution as is other property.”

Judge Stayton, in the ease of Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249, 253, in discussing the rights based upon contracts fully protected by the Constitution of the State of Texas, as well as the Constitution of the United States, says: “A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law.”

In Cooley’s Constitutional Limitations (8th Ed.) vol. 1, p. 593, it is said: “And where a statute does not leave a party a substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy, so as to destroy it entirely, and thus impair the contract so far as it is in the power of the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but -is void, because a substantial denial of right.”

In the construction of statutes the correct rule is clearly stated in 36 Cyc. § 2, pp. 1106, 1107, and 1108, as follows: “The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention, however, must be the intention as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority. But where the language of the statute is of doubtful meaning, or where an adherence to the strict letter would lead to injustice, to absurdity, or to contradictory provisions, the duty devolves upon the court of ascertaining the true meaning. If the intention of the legislature cannot be discovered, it is the duty of the court to give the statute a reasonable construction, consistent with the general principles of law.”

In 25 R. C. L. § 243, pp. 1000 and 1001, a familiar rule is stated as follows: “Where an act is fairly susceptible of two constructions, one of which will uphold the validity of the act while the other will render it unconstitu-, tional, the one which will sustain the constitutionality of the law must be adopted.”

Applying the foregoing rulés to the facts of this case, it is unquestioned that the Legislature had the right to require the corporation to pay a franchise tax before it could transact business in this state. That the Legislature had the right to provide .that failure to pay the franchise tax as required by law authorized the secretary of state to enter upon the margin of the record in his office relating to such corporations, the words “right to do business forfeited” is not doubted. It is equally true that the Legislature is authorized to provide that any corporation, whose right to do business is forfeited and has not been revived, as provided for by law, shall not further transact business in this state or use the courts in the furtherance of its ends after said forfeiture.

In consonance with the foregoing rules, we conclude that the Legislature did not intend to impair the rights conferred upon ap-pellee during the time its right to do business was unquestioned under the laws of this state or to impair any rights that accrued during that time.

However, we will not evade the issue. If the Legislature intended by the enactment of article 7091 to impair or abrogate the vested rights of the corporation accrued while it was in good standing and before its right to do business in this state was forfeited and prevent it from maintaining a suit in the courts of this state for the protection of those vested rights, it would violate the provisions of the Constitution and the decisions of this state, and would, therefore, be void.

In view of the fact that the appellee had the authority under the rule herein stated to maintain its suit in the courts, independent of the revival by the secretary of state for it to do business, as provided for by statute, question No. 1 becomes immaterial, and it is not necessary to answer it.

Tbis brings us to the consideration of question No. 2. The record shows that Stephens county intended to erect and fully equip the jail building together with necessary courthouse improvements.

The commissioners’ court of that county employed appellee as an architect to prepare plans and specifications for and to supervise the proper construction of a combination courthouse and jail in said county. A contract dated September 22, 1924, was entered into by Stephens county and the Mid-West Company, Inc.

It is earnestly contended that by reason of article 2368, It. S. 1925, which provides that, “No commissioners’ court shall make a contract calling for or requiring the expenditure or payment of two thousand dollars or more out of any fund or funds of any county * * * without first submitting such proposed contract to competitive bids,” and since the contract was not awarded on competitive bids, it is void and unenforceable. The contract called for skill and experience on the part of the appellees. They were required to prepare suitable plans for the work to be done in the construction of a jail and perhaps a new courthouse. The county was vitally interested in procuring the services of a skilled and experienced person or concern to draw up the necessary plans and supervise the work while going on. To hold that contracts for this kind' of work must be let to the lowest bidder would inevitably result in the county being placed in a position which would require it to accept the services of incompetent persons. Naturally, one who has no skill, experience, or technical knowledge, could underbid one who possesses the skill, technical knowledge, and experience, to perform this kind of service. In other words, to construe the statute contended for would place a premium upon incompetency and produce an unfortunate situation. To illustrate, could it be seriously contended that if a county desired the services of a skilled and competent attorney to represent the county in some important piece of litigation, involving a large sum of money, that the county should, before letting the contract, submit it to competitive bids, and then be required to hire the person making the lowest bid therefor? We think not. To do and perform the work for which appellee was employed required technical skill and experience of a high degree, and it is plain that the Legislature never intended that such services should be awarded upon competitive bids. We rest the conclusions reached upon this question upon the following decisions: Gulf Bitulithic Co. v. Nueces County (Tex. Com. App.) 11 S.W.(2d) 305; Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096 (W. denied); Tackett v. Middleton. (Tex. Com. App.) 280 S. W. 563, 44 A. L. R. 1143; City of Houston v. Glover, 40 Tex. Civ. App. 177, 89 S. W. 425, 426.

We answer question No. 2: “Yes.”

Appellee was incorporated and chartered under article 1302, R. S., subdivision 45 thereof, which reads as follows:

“The purposes for which private corporations may be formed are: * * *
“45. To design, purchase and sell steel and iron and other metal products and the manufacture of any or all of such products, and to design, sell, construct'and erect engineering and architecture [architectural] structures, and to contract for the construction and erection of such structures.”

Article 1320, R. S. 1925 says:

“Every private corporation as such has power: * * *

“7. To enter into any obligation or contract essential to the transaction of its authorized business.”

The statute under which appellee was incorporated expressly authorizes a corporation to design buildings. The designing of a building is an architectural service. In R. O. L. vol. 2, p. 399, an architect is defined as follows: “An architect is one whose occupation it is to form or devise plans and designs' and to draw up specifications for buildings or structures, and to superintend their construction.”

It appears that Stephens county was in need of an architect and made a contract with appellee to perform certain services. Appel-lee was authorized to design and contract for the construction and erection of buildings. All of the things which it contracted to do in the contract involved in this suit were an integral part of the designing, contracting for the construction, and constructing buildings. A part of the work of constructing the buildings is the supervision of such construction and the administration of the business thereof.

A corporation in the transaction of its business has the same latitude as the individual in the same character of business, in those things that are essential to the successful operation of that particular business.

The doctrine of ultra vires ought to be reasonably understood and applied, and whatever may fairly be regarded as incidental to, or consequential upon, those things which a corporation has been authorized to do, ought not, unless expressly prohibited, be held by judicial construction to be ultra vires. Texas Fidelity & Bonding Co. v. General Bonding Co. (Tex. Com. App.) 216 S. W. 144; Sealy Oil Mill & Mfg. Co. v. Bishop Mfg. Co. (Tex. Com. App.) 235 S. W. 850; Northside Ry. Co. v. Worthington, 88 Tex. 562, 30 S.W. 1055, 53 Am. St. Rep. 778; Jacksonville Co. v. Hooper, 160 U. S. 514, 16 S. Ct. 379, 40 L. Ed. 515.

It would be inconsistent and illogical to say that a concern could be incorporated under the law for' certain purposes and be authorized to make contracts within the scope of its power essential to the successful operation of its particular business, and then hold that the contract so made was not binding or enforcible upon the theory that it was ultra vires. We see no sound reason for so holding.

We answer question No. 3: “No.”

We therefore recommend that the foregoing questions be answered as indicated.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted, and ordered certified.


author: SHOUT, P. J. CUBETON, C. J.

text:
    COOK v. MANN et ux.
    No. 1265-5665.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    P. B. Cox and E. L. Fulton, both of Wichita Falls, for plaintiff in error.
    Walsh & Smith, of Wichita Falls, for defendants in error.
   SHOUT, P. J.

This suit was instituted by the defendants in- error, who are husband and wife, for damages alleged to have been occasioned by the negligent act of the IT year old son of the plaintiff in error, in driving a Ford automobile, belonging to the employers of the father of the son, on a public street of the city of Wichita Falls, rapidly and recklessly, and in striking the car of the défendants in error, wrecking it, and throwing the wife to the pavement, seriously injuring her. The ease was tried to the court alone, and judgment was rendered in favor of the plaintiff in error. The judge filed his findings of facts and conclusions of law, but no statement of facts was filed. Upon an appeal to the Court of Civil Appeals at Fort Worth, that court' reversed the judgment of the district court, and rendered a judgment in favor of the defendants in error for the sum of $2,500, the amount of damages the district judge found the defendants in error had sustained. 23‘S.W.(2d) 860.

The opinion of the Court of Civil Appeals details the material allegations in the petition, and copies in hsec verba the findings of fact and conclusions of law by the trial court, to which we refer for a complete understanding of the issues presented and the facts established. This opinion by the Court of Civil Appeals, as we construe it, bases the conclusion reached upon three somewhat related principles of the law. One is the family purpose doctrine, another is the law of principal and agent, and the other is that applicable to the civil liability of the parent for the tortious act of a minor child. Thus construing the opinion of the Court of Civil Appeals, we will discuss these three principles in the light of the pleadings, and of the facts found by the trial judge.

Corpus Juris- defines family purpose doctrine as follows: “That where a head of the family maintains a motor vehicle for the general use, pleasure and convenience of the family, the use of the vehicle for the pleasure and convenience of the family is in furtherance of his purpose in providing it, and he is in many jurisdictions held liable for the negligence of a member of the family having general authority to drive it, while the vehicle is being so used.” 42 C. J. p. 1080, § 838. The same authority, under § 839, further states: “that this rule will be applied only to vehicles maintained for the general use, pleasure and convenience of the owner’s family.”

Among other allegations of the petition is one to the effect that the plaintiff in error, at the time of the collision, and for some time prior thereto, had been an actual employee of the Hamilton, Martin Investment Company, and that the car being driven at the time, by the son, had been furnished to the plaintiff in error to be used by him- in the regular discharge of his duties as such employee’, and that the plaintiff in error had been permitted by said company to keep' said car in his possession and that he had full control of the car, and used it, not only for his work, but' also as a family car, and the members of his family, including this son, were permitted to use said car as a family car, and that on the occasion in question the car was being used by the son as a family car, with the knowledge and consent of the plaintiff in error.

The findings of fact, as specially applicable to these allegations, are to the effect, that the plaintiff in error was not guilty of any negligence; that the car, driven by the son at the time of the accident, was owned by the Hamilton, Martin Investment Company, and had been turned over to the plaintiff in error by this company to use in the work of the company and for no other purpose; that the plaintiff in error had kept said car at his home, when not used, for two or three months prior to the accident, and on three or four occasions the plaintiff in error had ■sent this son on errands in said car to get ice and laundry.

The trial court having rendered a judgment in fav-or of the plaintiff in error, it is the duty of the appellate court to construe these findings of fact in their most favorable light, so that the facts £ound will he in harmony with each other and with the judgment rendered. The fact that the plaintiff in error was not guilty of any negligence is tantamount to a finding that these damages, inflicted by his son, were not the result of any act or declaration on his part, inconsistent with his duty as the head of the family to control his children and his property, or property in his charge, as a man of ordinary .prudence under the same or similar circumstances would have done. The fact that the car belonged to his employers, to be used in pursuit of their business only, in connection with the fact that the plaintiff in error was not guilty of any negligence, when favorably construed so • as to support the judgment, negatives the idea that the car was used as a family car, and that under these facts the family purpose doctrine would not be applicable to the facts in this case.

The trial judge found that the only time this son had ever used this car, previous to the occasion in question, was when he had been expressly sent upon an errand by his father, and that in accomplishing the purposes of these errands, only four in number at the utmost, the son had so used the car that no damage was done to any one. The court also found that upon the occasion in question the father was ignorant that the son had used the car. Giving the most favorable construction to these findings of fact, so they would be in harmony with the judgment rendered, we conclude that the father had prohibited his son from using this car. except upon the occasions heretofore mentioned. Moreover, the court also found that the son, in using the car, did so on this occasion for his own pleasure, meaning that the car was not only used without the knowledge of the father, but that it was not being used, at the time damage was done, for any purpose of the father. In order that a principal shall be liable for the acts of another, in the capacity of an agent, the acts must be done either by express authority of a person in the capacity of a principal, or done in the ordinary scope of the employment of the agent acting for his principal. Here we have a finding that the son not only did not act by any express authority of the father in taking .the car, but that in doing so he was pursuing his own pleasure, meaning that the relation of principal and agent did not exist at the time the damage was done. The relationship of parent and child does not necessarily involve the relation of principal and agent or of master and servant. The parent has the right to the control and custody of the child, and the right to his services and earnings, and is under an obligation to maintain and educate the child. But these rights and duties create no authority in the child to represent and bind its parent. There is no such relationship existing between father and son, though the 'son be a minor and living with the parent, as will make the acts of the son more binding upon the father than the acts of any other person. The authority of a child to bind its parent by its acts can only arise out of an express or implied delegation of that power by the parent. According to the findings of fact, relating to the principle of law, applicable to principal and agent, the son, in taking this car and using it in the manner he did, was not acting as the agent of the father, but on the contrary, the court finds facts which necessarily mean that he was not.

The Court of Civil Appeals, in its opinion, said: “That, if M. M. Cook knowingly consented for his son to drive the ear on a mission of business or pleasure of the son only, the son thereby became his agent, since it is the duty of a father to provide for his minor child, and, if he places in the child’s control a dangerous instrument in the use of which a tort is committed, resulting in injury to others, he is in no position either in law or equity to complain that his act in thus placing the dangerous machine in the hands of his child was not the primary and procuring cause of the injury.” This language does not correctly state the law applicable to the facts in this case, as found by the trial judge. The plaintiff in error did not, knowingly, consent for his son to drive the car for any purpose, and he did not place this car in the child’s control, if we are to give any weight to the findings of fact by the trial judge on this subject.

The Court of Civil Appeals, in its opinion, says, among other things: “There is a hopeless conflict in the cases relating to the subject matter of this suit.” This conflict, in these cases, arises in the main from the fact that under the civil law the liability of of a father for the tortious acts of a minor child is much broader than under the common law. At common law, according to the authorities which are clear and uniform, the father is not answerable in, a civil action for damages for the wrongful act of his minor child, where they live with him and are un,der his control, and where the acts complained of were not authorized by the father; were not done in his presence; had no connection with the father’s business; were not ratified by him; and from which the father received no benefit. Otherwise expressed, a father is never liable for the wrongful acts of his minor child, unless they are committed with the father’s consent, or in connection with the business of the latter, or as his servant or agent. Chandler v. Deaton, 37 Tex. 406; Ritter v. Thibodeaux (Tex. Civ. App.) 41 S. W. 493. In Brohl v. Lingeman, 41 Mich. 711, 3 N. W. 199, it was held that a father is not subject to an action for damages for injuries occasioned by reckless and unlawful driving of his minor son, as where he runs against a person. Relationship alone does not make a father answerable for the wrongful acts of his minor child. There must be something besides relationship to connect him with such acts before he becomes liable. It must be shown that he ratified such acts or that the child was his servant or agent. There is no allegation in the petition that the plaintiff in error ratified the wrongful act of the son, though there is a finding of fact by the judge, to the effect that after the accident the plaintiff in error stated that he knew his son had driven the car and had his permission to do so, and that he, the father, was going to stand by him. Since there is no allegation of ratification in the petition, in the face of the fact that the court found that the plaintiff in error did not give his express permission to his son to drive the ear, at this particular time, and in the face of the fact that the trial judge rendered a judgment in favor of the plaintiff in error, we are convinced that the court did not give any weight in the rendition of its judgment to this finding of fact, to the effect that the father had given his permission to the boy to use the car on this particular occasion. Even had the court indicated that he had given any weight to this particular finding, we would be compelled to hold that this finding was not material to any issue in the case, with no allegation that the father had ratified the act of the son in using the car.

There is, however, in the finding of fact by the trial court, upon which the Court of Civil Appeals seems to have based its judgment in part, a finding to the effect that the son had the implied consent of the father to use the car. An implied consent is actual consent circumstantially proved. It is argued that, in the absence of a statement of facts that this finding of fact is conclusive, the judgment rendered by the trial court is erroneous. Findings of fact by a trial court, in the. absence of a trial by a jury, are in the nature of special verdicts. When a judgment is rendered upon the special verdict of a court, and there are inconsistent •findings, it is the duty of appellate courts to ignore those findings of fact, which are not in harmony with each other and with the judgment, and to consider only those findings of fact which are in harmony with each other and with the judgment, in the absence of a challenge of these findings of fact by the complaining party. This record presents no such challenge. Under such circumstances it will be presumed that the trial judge based his judgment upon those facts in harmony with each other and the judgment.

But assuming that the son had the consent of the father to use the car, belonging to the father’s employers, for this particular occasion, it does not necessarily show that the father was responsible for the damages resulting from the negligent act of the son. When we consider the other'findings of fact which we have discussed, this implied consent does not bring this car within the family purpose doctrine, as heretofore defined. Neither does this implied consent, giving due effect to the other findings of fact, make the son the agent of the father, under such circumstances, so as to make the father civilly liable in damages for the résult of the negligent act of the son, under the doctrine of principal and agent. Nor does this implied consent, in the light of the other findings of fact, make the father responsible in damages for the tortious act of the son. We are therefore of the opinion that this finding of fact is not material to any issue made by the pleadings and the facts, and is not of such controlling effect as to justify the Court of Civil Appeals to set aside the judgment of the district court, and to substitute therefor its own, in direct opposition thereto.

Since the findings of fact show that the car in question was not used by the son as a family car of his father, and since the findings of fact further show that the father was not negligent in any respect, and that the car did not belong to him, and that he had never permitted the son to use it, except on four occasions at most, and since the son, in taking the car and using it, did so for his own pleasure, and since there is no pleading that the father ratified the act of the son, under such circumstances as to make him liable in damages for the negligence of the son, we conclude that the judgment of the Court of Civil Appeals should be reversed, and that of the district court affirmed, and we so recommend.

CUBETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J. CURETON, C. J.

text:
    HOLLOWAY et al. v. TEXAS INDEMNITY INS. CO.
    No. 1243-5747.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.

      Clark & Clark, of Port Worth, for plaintiffs in error.
    Goree, Odell & Allen and I>. L. Gambill, all of Port Worth, for defendant in error.
   LEDDY, J.

On November 10, 1928, claim was filed before the Industrial Accident Board by plaintiff in error in which he sought an award for compensation against defendant in error on account of a hernia alleged to have been sustained on December 12, 1926, while engaged in dhe performance of his duties as an employee of the Magnolia Petroleum Company, to whom defendant in error had issued a policy of insurance under the Workmen’s Compensation Law.

Prom an award sustaining the claim, defendant in error duly prosecuted its appeal to the district court. Plaintiff in error filed the usual cross-action in which he sought to excuse his failure to file a claim before the Industrial Accident Board within six months after the injury, as required by section 4a, article 8307, R. S. 1925. In his plea it was averred that immediately after the accident he informed his employer, the Magnolia Petroleum Company, he had sustained a hernia and received the assurance that the company would file his claim before the Industrial Accident Board and he did not learn of its failure to do so until November 10, 1928, at which time he promptly presented his claim to the board.

The jury found in answer to special issues that plaintiff in error did inform his employer of the injury and it promised to present his claim to the Industrial Accident Board, which promise was relied upon by him.

Upon these, and other findings favorable to plaintiff in error, judgment was rendered in his favor against defendant in error for a lump-sum recovery.

The Court of Civil Appeals, 30 S.W.(2d) 921, reversed and remanded the case for another trial upon the sole ground that the trial court erred in applying the usual rule requiring plaintiff in error to establish before the jury the fact he had sustained a hernia, as alleged, by a preponderance of the evidence, holding that under the Compensation Law he should have been required to establish such fact beyond a reasonable doubt.

We are unable to concur in the conclusion of the Court of Civil Appeals that in a trial before a jury in the district court on appeal from an award of the Industrial Accident Board, the claimant, in hernia eases, rests under the burden of establishing before the jury facts essential to a recovery beyond a reasonable doubt.

The holding of the Court of Civil Appeals is based upon its interpretation of section 12b, art. 8306, R. S. 1925, which provides:

“In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:
“1. That there was an injury resulting in hernia.
“2. That the hernia appeared suddenly and immediately following the injury.
“3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.
“4. That the injury was accompanied by pain.”

The provision for appeal by the insurer from an award of the board is found in sec-. tion 5, art. 8307; the same being as follows: “If the final order of the board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the board, if it so desires, and the court shall in either event determine the issues in such .cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation.”

It will be observed that the provisions of section 12b, art. 8306, do not purport to deal with the procedure in a trial before a jury on appeal from an award of the board. In section 5, art. 8307, where such procedure is dealt with, we find a declaration that the trial in the district court shall be de novo “and the burden of proof shall be upon the party claiming compensation.” Applying the well-known statutory rule of construction requiring our courts in interpreting legislative acts to give words not specially defined their ordinary and usual meaning, the phrase “burden of proof” must be given its well-accepted meaning in civil cases, which is that the one upon whom the burden rests must establish facts.essential to entitle him to the relief sought by a preponderance of the evidence.

We think a proper construction of the provision of section 12b, art. S306, that certain facts must be definitely established to the satisfaction of the board, is that it was intended as a rule to govern the board in reaching a decision as to compensation in hernia cases and also as.a guide to the court when the case is tried de novo in weighing the evidence against an objection that it is insufficient to sustain a jury’s findings.

This .construction of the statute is fully justified when the fact is taken into consideration that the Legislature knew at the time of the passage of section 12b, art. 8306, similar provisions in other statutes had been interpreted by the courts of this state as being merely a guide to the court and not as operating to change the rule of procedure in jury trials as to discharging the burden of proof by a preponderance of the evidence.

The construction by our courts of similar language in other statutes is illustrated in the statute in regard to divorce. Article 4632, R. S. 1925, contains the declaration that a divorce shall be rendered only “upon full and satisfactory evidence, upon the- judgment of court affirming the material facts alleged in the petition.” Our Supreme Court, in Moore v. Moore, 22 Tex. 237, in discussing the effect of the above language, says: “There must be the ‘full and satisfactory evidence,’ and ‘the verdict of a jury;’ both must concur, before the court can lawfully proceed to decree a divorce. It is to the mind of the court, of course, that the statute intends that the evidence shall he ‘full and satisfactory.’ Unless it be so, it is the duty of the court to set aside the verdict, and refuse a decree.”

Similarly article 3348, R. S. 1925, requires certain facts to be established “to the satisfaction of the court” before a will may be admitted to probate. This clause has been held in a number of will cases not to change or modify the rule that a jury, in passing upon conflicting testimony, must decide according to the preponderance of the evidence. Bar-tel’s Estate (Tex. Civ. App.) 164 S. W. 859, 867; Reinhardt v. Nehring (Tex. Com. App.) 291 S. W. 873; Adams v. Adam (Tex. Civ. App.) 253 S. W. 605; Gallagher v. Neilon (Tex. Civ. App.) 121 S. W. 564, 569; Buck v. Woodson (Tex. Civ. App.) 209 S. W. 244, 246.

In view of the interpretation placed by the courts of this state upon these provisions in the divorce and probate statutes, with which the Legislature should be presumed to have been familiar, it must be assumed that if it had desired to change or modify the settled rule of procedure in cases in the district court coming under the provisions of section 12b, art. 8306, instead of using language which our courts have repeatedly held to be insufficient to accomplish such purpose, it would have employed language making its intention so clear and definite that its purpose could not be misunderstood.

While we conclude that the judgment of reversal by the Court of Civil Appeals cannot be sustained upon the ground assigned, nevertheless its judgment must be affirmed because defendant in error presented other assignments of error justifying the reversal.

The issue as to whether good cause existed for plaintiff in error’s failure to file his claim within the required period was submitted by the court in the following form: “Did W. E. Holloway have good cause for not filing his claim with the Industrial Accident Board of Texas for injuries received in a hernia caused by cranking a truck of the Magnolia Petroleum Company, if you find that he received such injuries, within six months after the date of such injury?”

Defendant in error seasonably excepted to the submission of the issue, in the form in which it was proposed to be submitted to the jury, for the following reasons: “Because the evidence is insufficient to justify the submission of question No. 19 to the jury and for the further reason that said issue is irrelevant and immaterial as submitted, the same being, if issue there is, whether the said W. E. Holloway had good cause for failing to file his claim with the Industrial Accident Board prior to November 15,1928, whereas, according to the pleading and his testimony, the injury which he claims to have sustained was in December 1926, and said question should be so framed and said issue so submitted as to cover the period of time between said alleged injury and the date said claim was actually filed rather than to be confined within the six months period alone.”

This exception should have been sustained and the issue so framed as to require the jury to answer whether good cause existed for plaintiff in error’s failure to file his claim before the Industrial Accident Board until November 10,1028.

The exception which permits the filing of a claim for compensation after the six months’ period is contained in section 4a, article 8307, R. S. 1925; it being as follows: “Por good canse the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the board.”

Clearly this provision operates to remove all cases arising under the Workmen’s Compensation Law from the statute of limitation applicable in ordinary personal injury cases. In other words, where an employee’s claim for compensation is filed within three years after the injury, if he is able to show good cause for the failure to file prior to that time, he would be entitled to the benefits of the act.

This being true, it logically follows it was not within the contemplation of the legislative body in enacting such provision that an employee who delayed filing a claim before the Industrial Accident Board for any number of years could recover compensation by merely showing that good cause existed for the first six months of the delay period. This' would be a most unreasonable construction of the statute and would result in placing the burden upon insurance companies of attempting to defend compensation claims many years after the injuries were supposed to have been received and at a time when it would be difficult, if not altogether impossible, to produce any proof in regard thereto.

It was the evident purpose of the enactment of the provision in question to require a claimant to file claim within six mpnths after his injury, and, if filed at a later period, he is not entitled to recover without an affirmative showing that good cause exists for the claim not being filed at an earlier date.

ft cannot be said that because the jury found good cause existed for plaintiff in error’s failure to file his claim for compensation with the Industrial Accident Board within six months after the injury occurred that if the issue had been submitted a similar finding would have been made justifying the delay in filing the claim for a period of practically two years. The jury may have concluded, as it did, that it was not unreasonable, for plaintiff in error’to fail to take any action for six months in reliance upon the promise of his employer to file the claim for him, and at the same time have reached the conclusion that no good cause existed justifying his failure to file a claim for two years, when during all of this time he knew his employer’s promise had failed to accomplish any result in securing for him the compensation to which he claimed to be entitled.

Plaintiff in error was not entitled to a lump-sum judgment as there was no evidence before the trial court from which a proper rate of discount could be determined. United States Fidelity & Guaranty Oo. v. Mrs. W. R. Nettles (Tex. Com. App.) 35 S.W.(2d) 1045, not yet reported [in State report].

We recommend that' the judgment of the Court of Civil Appeals ordering a reversal and remand of the cause for another trial be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.