W. Lumber Co. v. Morris Barnes , 257 S.W. 592 ( 1923 )

I concur with my brethren in their disposition of this case, and in all their conclusions except the construction of article 5246 — 1, Revised Civil Statutes (Vernon's Ann.Civ.St. Supp. 1918), in its relation to the defense of assumed risk. Appellant's fourteenth proposition is as follows:

"Regardless of the Workmen's Compensation Law, an employee assumes those risks which are inherent in the work being done, which cannot be eliminated and which exist after the master has exercised ordinary care with reference thereto for the safety of the servant."

This proposition is based upon the court's refusal to submit to the jury the following special issue:

"Were the dangers or risks, if any, connected with the work A. D. Kinard was doing at the time of his injury as a decker such risks or dangers as are ordinarily incident to that kind of work?"

"You will answer this question, `Yes,' or, `No,' as you may find the facts to be.

"And in this connection you are charged that the risks or dangers ordinarily incident to the employment are such risks or dangers as in the very nature of the thing being done attend the work after the master had exercised ordinary care with reference to the safety of the employee doing the work. And if you find from the evidence that the risks or dangers, if any, which the said A. D. Kinard was subjected to in doing the work he was doing, were such dangers or risks as were inherent in the work itself, then you will answer this question, `Yes.'"

As I understand the facts of this case — and my brethren do not assert to the contrary — this requested issue was raised by the evidence. It follows then that the refusal of the issue can be justified only on the proposition that the quoted article has abolished the defense involved in this issue, and that appellant is liable if Kinard was injured in the course of his employment, independent of and without relation to negligence on its part. As I construe the opinion in this case, that is the position now taken by the majority of this court. They say:

"Thus, it appears that by the very express language of the statute the defense of assumed risk, regardless of whether it be a risk necessarily and ordinarily incident to the work being performed by the servant alone, or whether it be augmented by negligence on the part of the master or employer, is completely taken away from the employer who has not provided compensation insurance for his employee."

The law of negligence draws a clear distinction between the assumption by the servant of the risks incident to the master's negligence, and those risks incident to his employment, often referred to as "contractual assumption of risk." This distinction is fully discussed in the note to Scheurer v. Banner Rubber Co., 28 L.R.A. (N. S.) 1218. It is also recognized and discussed in the following decisions of this state: Freeman v. Fuller, 60 Tex. Civ. App. 242, 127 S.W. 1194; Taylor v. White (Tex.Civ.App.) 156 S.W. 349; Brown Cracker Candy Co. v. Johnson (Tex.Civ.App.) 154 S.W. 684; Alamo Dressed Beef Co. v. Yeargan,58 Tex. Civ. App. 92, 123 S.W. 721. In my judgment, the "assumed risk" which this article abolished as a defense is that risk created by the negligence of the master, and not that risk which is, in its very nature, incident to the duties which the servant has contracted to perform and which exist after the master has performed fully and completely all his legal duties to the servant. The latter defense was, prior to the enactment of our Workmen's Compensation Act, available to the master under his general denial, and a finding in his favor on that issue was an absolute negation of negligence on his part. It would seem that the master has met the servant's case, even under our Workmen's Compensation Act, when he has a finding that the risk causing the injury was incident to the employment, and a further finding that he was not negligent in relation thereto, because section 4 of the cited article distinctly says:

"It shall be necessary to a recovery for the plaintiff to prove negligence of such employer," etc.

If this is a sound legal proposition, of course the court committed error by refusing the requested issue. From the reported cases, it appears that Massachusetts, Iowa, and West Virginia have in their Workmen's Compensation Acts substantially the same provisions as contained in our article as cited in the majority opinion. My dissent is based primarily on the construction given this language by the Supreme Courts of those states.

In Ashton v. Railway Co., 222 Mass. 65, 109 N.E. 820, L.R.A. 1916B, 1281, it is said:

"It is well settled that where one is employed to perform manifestly dangerous work, there is no liability where the risks growing out of the work are assumed by the laborer by his contract of employment. The record shows that the defendant, at the time of the accident, was not a subscriber under the workmen's compensation act. (Stat. 1911, chap. 751), and while the act (pt. 1, § 1) provides that in an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense that the employee had assumed the risk of the injury; still the removal of such defense has no application to a case of this kind, where the evidence shows that the deceased assumed the risk by virtue of his contract of employment. Ordinarily where one enters the service of another as employee, he agrees to assume all the open and obvious risks of the business. This usually is called a contractual assumption of risk.

"There is another class of cases where an employee suffers an injury by reason of the negligence of his employer in reference to some matter outside the risks assumed under his contract of employment, as, for instance, the failure of the employer to furnish safe and suitable tools and appliances for the employee. In such cases there may be evidence of negligence of the employer. The question often is whether the employee is precluded from recovery on the ground that he assumed the risk. If the evidence shows that by his conduct there was such an assumption of risk, he is not entitled to recover. This is called a voluntary assumption of the risk. It is a matter of defense to be pleaded and proved affirmatively by a defendant if he would avoid the consequences of his negligence, and in order to maintain such a defense it must appear that the plaintiff knew and fully appreciated the risk.

"The doctrine of contractual assumption of risk, that is, that the risk was one of the dangers incident to the employment, is not an affirmative defense, but stands upon an entirely different footing. With reference to risks and dangers covered by the contract, the employer owes the employee no duty, and so cannot be held guilty of negligence. Murch v. Thomas Wilson's Sons Co., 168 Mass. 408, 47 N.E. 11, 2 Am.Neg.Rep. 710; Gleason v. Smith, 172 Mass. 51, 51 N.E. 460. As the contractual assumption of risk is not a matter of affirmative defense and can be shown under a general denial, it is not affected by that part of the workmen's compensation act (Stat. 1911, chap. 751, § 1) above referred to."

I cite the following note given by L.R.A. under this case:

"The constitutionality, construction, and effect of workmen's compensation acts are treated at length in the annotation in L.R.A. 1916A, 23, and see particularly page 220 of that annotation, as to the exclusion of the defense of assumption of risk.

"In view of some criticisms that have been directed against the decision in Ashton v. Boston M. R. Co., excluding `contractual assumption of risk' from the operation of the provision of the workmen's compensation act, depriving an employer who elects not to come under the act of the right to rely on assumption of risk as a defense, it may be noted here that such decision was necessary to preserve to the employer any substantial right of election. A contrary decision would, in effect, have made the act compulsory, since it would have rendered the employer liable irrespective of negligence on his part, even though he elected not to come under the act. `Contractual assumption of risk,' in the sense in which that phrase is employed by the court in this case, imports nothing more than the common-law rule which makes the master's liability dependent upon negligence, and exonerates him from liability for accidents from these risks incident to the business which remain after the exercise of due care on his part. It is entirely different from the assumption of risk which arises from the employee's knowledge of the danger, and which at common law is available to the employer as an affirmative defense even where he has been negligent. Obviously, if the right of election not to come under the act is to be of any substantial benefit to the employer, the denial of his right to rely on assumption of risk as a defense must be confined to assumption of risk in the latter sense. For a full discussion of the distinction, see annotation to Scheurer v. Banner Rubber Co., 28 L.R.A. (N. S.) 1218."

In De Francesco v. Piney Mining Co., 76 W. Va. 756, 86 S.E. 777, it is said:

"Neither the statute nor the common law requires a master to instruct the servant as to dangers of which he has knowledge or as to means of avoidance fully known to him. The statutory requirement proceeds upon the theory of lack of knowledge in the employé, for it applies only to inexperienced miners. The common law imposes no duty to instruct a servant of full age and average intelligence, as to elements of danger that are obvious to persons of his class. Stuart v. West End Street Ry. Co., 163 Mass. 391, 40 N.E. 180; Brands v. St. Louis Car. Co. 213 Mo. 698, 18 L.R.A. (N. S.) 701; Holland v. Tennessee Coal Iron Co.,91 Ala. 444, 8 So. 524, 12 L.R.A. 232; Wagner v. Chemical Co., 147 Pa. 475,23 A. 772, 30 Am. St. Rep. 745; Ozogar v. Pierce Mfg. Co., 134 A.D. 800,119 N.Y.S. 405. In other words, the employer is under no duty to instruct as to acts and things commonly known to be dangerous.

"To exact such a duty, under the statute abrogating assumption of risk and contributory negligence, would be violative of the letter and spirit of that portion thereof which imposes liability only for negligence or other wrongful act causing injury. It would make the employer a guarantor of the safety of the employé, from the consequences of his own careless act. Moreover, it would make the liability depend, not upon the words of the statute, but upon a rule superadded by judicial construction. The abolition of the doctrine of assumption of risk goes only to that portion of it which denies right of recovery for negligence on the part of the master, to which the servant is deemed to have assented, because of his knowledge of the same and continuance in the service thereafter. It was not the purpose of the statute to proscribe acts on the part of the master which, by the common law, were rightful and free from negligence, but only to eliminate an application of the principle of waiver — assumption of risk of injury by known acts of negligence on the part of the master. `An employer who has not elected to bring himself within the provisions of the Michigan Workmen's Compensation Act is not answerable for injury sustained by an employé, in the absence of some negligence on the part of the former.' Lydman v. De Haas (Mich.) 151 N.W. 718, in 8 N.C. C. A. 649."

See, also, Hunter v. Colfax, etc., 175 Iowa 245, 154 N.W. 1037, 1045,157 N.W. 145, L.R.A. 1917D, 15, Ann.Cas. 1917E, 803.

Advance article C.J. on "Workmen's Compensation Acts," § 159, p. 137, on a review of the authorities announces the following rule, which in my judgment should control this case:

"In the few cases in which the question has been specifically considered, the prevailing opinion is that the elimination of the defense of assumption of risk does not take away the defense of absence of negligence, but refers to what is sometimes designated as voluntary, as distinguished from contractual assumption of risk, and this view is inferentially supported by the numerous authorities holding that to warrant a recovery by the employé the employer's negligence must be shown."

From what I have said, it follows that in my judgment the trial court committed error in refusing appellant's requested issue, and that my brethren are in error in overruling appellant's fourteenth proposition.