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The judgment in favor of Albert Pick & Co. is not appealed from, and we do not disturb the judgment in so far as it concerns Albert Pick & Co., except in the order of the sale of the parcels. That part of the judgment which awards the $760, with interest and attorney's fees, in favor of Mr. and Mrs. Touzalin against J. M. Nix is affirmed. Judgment is here rendered in favor of J. M. Nix against Mary E. Touzalin and her husband, D. H. Touzalin, foreclosing Nix's vendor's lien against parcels F, D, A, and C.

which said parcel B had never been convey-, and D, as well as A and C. All costs should ed to Mrs. Touzalin. These facts present the be awarded against her. following situation: Mrs. Touzalin acquired title to parcels F and D free from the deed of trust lien, though the consideration she promised to pay for same was the payment of the indebtedness secured by the deed of trust. On the other hand, the property of Nix, being parcel B, is incumbered and adjudged to be sold to pay the indebtedness which Mrs. Touzalin obligated herself to pay as a consideration for the conveyance to her by Nix of parcels F, D, A, and C. Mr. Nix owned a vendor's lien against parcels F and D, which lien will continue until the entire consideration promised by Mrs. Touzalin is paid. Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Senter v. Lambeth, 59 Tex. 259; Henson v. Reed, 71 Tex. 726, 10 S. W. 522; Howe v. Harding, 76 Tex. 17, 13 S. W. 41, 18 Am. St. Rep. 17; St. L., A. & Tex. Ry. Co. v. Henderson, 86 Tex. 307, 24 S. W. 381; Levy v. Tatum, 43 S. W. 941; White v. Street, 67 Tex. 177, 2 S. W. 529; Clark v. Collins, 76 Tex. 33, 13 S. W. 44; Woodruff v. Erie Ry. Co., 93 N. Y. 626; Marshall v. Davies, 78 N. Y. 421; 39 Cyc. 1802; Huyler's Ex'rs v. Atwood, 26 N. J. Eq. 504; Coolidge v. Smith, 129 Mass. 554; Ballin v. Dillaye, 37 N. Y. 35; Cashman v. Henry, 75 N. Y. 103, 31 Am. Rep. 437. The court erred in refusing to render judgment foreclosing Nix's vendor's lien against parcels F and D as well as his vendor's lien against parcels A and C. The vendor's lien on A and C is subordinate to the deed of trust lien; nevertheless there is a vendor's lien on A and C, and the judgment should foreclose it. The fourth and fifth assignments are sustained.

The sixth assignment complains of the award of the costs of the suit against Nix. We sustain the assignment. This suit was caused by the default of Mrs. Touzalin. She promised to pay the Pick notes and thereby release the deed of trust on parcel B, the property of Nix. She acquired parcels F and D free from the deed of trust, and because she was a feme covert was not personally liable for her contractual obligation. She appears satisfied to hold the parcels F and D and to sacrifice parcels A and C rather than pay the $13,153.80 against A and C, notwithstanding the fact that Nix's property, parcel B, is also incumbered with a lien to secure the payment of the $13,153.80, which she promised to pay as a consideration for parcels F

It is here ordered, adjudged, and decreed that parcels A and C be first sold. If these parcels bring a sufficient sum to pay the Albert Pick & Co. judgment, together with all costs, then that no other parcels be sold, and the deed of trust lien, as well as the vendor's lien, shall be canceled. But if parcels A and C do not sell for enough to pay the said indebtedness of Pick & Co. and all costs and attorney's fees, then it is here ordered that the vendor's lien owned by J. M. Nix on parcels F and D be foreclosed, and it is ordered that the said parcels F and D be next sold and so much of the proceeds of said sale as shall be necessary shall be applied to the payment of the Pick & Co. judgment and all costs, the balance, if any, to be paid to Mary E. Touzalin. It is further ordered that in the event parcels F and D fail to sell for an amount sufficient to pay the Pick & Co. judgment and all costs, then that parcel B be sold and so much of the proceeds as necessary be applied to satisfy the judgment in favor of Pick & Co. and all costs, the balance, if any, to be paid to J. M. Nix. Should all the parcels above mentioned, namely, A and C and F and D and B, fail to sell for a sum sufficient to satisfy the Albert Pick & Co. judgment and all costs, then it is adjudged and decreed that Albert Pick & Co. do have a personal judgment against J. M. Nix for the balance of the judgment and for all costs. It is further ordered that in the event either parcels A, C, F, or D, or all of them, sell for enough to pay the Albert Pick & Co. judgment and all costs, then that Mary E. Touzalin do have and recover of J. M. Nix the sum of $1,033.16, for which let execution issue.

The judgment of the trial court is undisturbed in part, affirmed in part, and reversed and rendered in part.

SOUTHERN SURETY CO. et al. v. HOUSTON LIGHTING & POWER CO., 1905, et al. (No. 349.)

(Court of Civil Appeals of Texas. Beaumont. May 16, 1918. Rehearing Denied June 5, 1918.)

MASTER AND SERVANT 389 WORKMEN'S COMPENSATION SUBROGATION OF INSURER. Neither section 6, part 2, of the Workmen's Compensation Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, art. 5246qq]), providing that the insurance associations may recover indemnity from other persons who would have been liable to the insured employé, nor any other part of the act, in express terms or by implication, confers authority upon the insurer to reimburse himself for compensation paid to an injured employé as against a third person through whose negligence the injury occurred, or to be subrogated to the rights of the beneficiary as against such third

person.

Appeal from District Court, Harris County; Henry J. Dannenbawn, Judge.

Suit by the Southern Surety Company and another against the Houston Lighting & Power Company, 1905, and others. From a judgment sustaining defendants' demurrers to petition, plaintiffs appeal. Affirmed.

Andrews, Streetman, Burns & Logue and W. L. Cook, all of Houston, for appellants. Baker, Botts, Parker & Garwood, K. C. Barkley, and Jno. W. Parker, all of Houston, for appellees.

HIGHTOWER, C. J. This suit was filed in the district court of Harris county by Southern Surety Company and Southwestern Surety Insurance Company, as plaintiffs, against Houston Lighting & Power Company, 1905, and Mrs. Rowena Hauck, a single woman, John W. Parker, and K. C. Barkley, as defendants. All defendants answered and each interposed a general demurrer and general denial to the plaintiffs' petition, and each of the general demurrers was sustained by the trial court, from which action of the trial court this appeal has been properly prosecuted.

In order that there may be no mistake as to the statement of the cause of action, or claimed cause of action, relied on by appellants, we here copy their petition in full, to

wit:

"Come now Southern Surety Company and Southwestern Surety Insurance Company, hereinafter styled plaintiffs, complaining of the Houston Lighting & Power Company, 1905, and Mrs. Rowena Hauck, a feme sole, John W. Parker, and K. C. Barkley, defendants, and for cause of action show to the court:

"(1) Southern Surety Company is a corporation organized under the laws of the state of Missouri for the purpose of conducting an insurance business, and said corporation has now, and had at all times hereinafter mentioned, a permit to do business in the state of Texas, including within its charter power and its said permit the right to insure subscribers under the Texas Workmen's Compensation Act, hereinafter more fully referred to.

"(2) Southwestern Surety Insurance Company is a corporation organized under the laws of the state of Oklahoma, having until the date it ceased business, hereinafter referred to, a permit to do business in the state of Texas, permit to insure subscribers under the Texas with charter powers and authority under its Workmen's Compensation Act, hereinafter more fully referred to.

"(3) Houston Lighting & Power Company, 1905, is a corporation organized under the laws of the state of Texas, with its principal office and place of business in Houston, Harris county, Tex., and with Hon. E. B. Parker, a resident of Houston, Harris county, Tex., as its president, upon whom service may be had. "(4) Mrs. Rowena Hauck is a resident citizen of Houston, Harris county, Tex., and a feme sole.

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"(5) Messrs. John W. Parker and K. C. Barkley are resident citizens of Houston, Harris county, Tex. "(6) On or about the day of Southwestern Surety Insurance Company ceased business, and under an arrangement with Southern Surety Company to that end, transferred to said company all of its rights, franchises, property, and assets of every character; and said Southern Surety Company, under said arrangement, in consideration of such transfer, assumed all the demands, liabilities, and causes of action of every character which might or could be asserted against the said Southwestern Surety Insurance Company, including the obligation to pay compensation to injured employés under any and all compensation insurern Surety Insurance Company. ance policies theretofore issued by Southwest

day of

and

"(7) On, to wit, the prior to November 25, 1915, Southwestern Surety Insurance Company, for a consideration, issued to Frank Schott, a baker engaged in business in Houston, in Harris county, Tex., its certain policy of compensation insurance, obligating said insurance company to pay the compensation provided for in the Texas Workmen's Compensation Act, and to otherwise comply with the provisions stipulated therein, whereby and by reason of giving adequate notice and otherwise fulfilling the conditions of the act said Frank Schott became and was on said 25th day of November, 1915, a subscriber within the meaning of said act; and said policy of insurance thus issued was in full force and effect as of that date. On, to wit, the 25th day of November, 1915, Otto Hauck, being then in the employment of said Frank Schott, a baker as aforesaid, and subscriber under said act as aforesaid, met his death as the result of an electrical shock sustained in the course of his employment, which said electrical shock was produced by electricity generated and conveyed to the plant of Frank Schott by the Houston Lighting & Power Company, 1905, which company, under a contract and agreement with said Frank Schott, was regularly undertaking to furnish light and motor power for the operation of said bakery.

"(8) At the time of the death of Otto Hauck. aforesaid, he left surviving him as claimants of compensation and damages Mrs. Rowena Hauck, his wife, and William Hauck, his father, and Bertha Hauck, his mother.

day of

"(9) On, to wit, the and subsequent to the death of said Otto Hauck, Messrs. John W. Parker and K. C. Barkley, as attorneys of record, filed suit in behalf of said Mrs. Rowena Hauck, said William Hauck, and said Mrs. Bertha Hauck, to recover damages of and from the Houston Lighting & Power Company, 1905, alleging negligence on part of said corporation, its servants, and agents in causing the death of said Otto Hauck. "(10) Said suit for damages and the cause

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of action involved was, without a trial, com- | prior thereto, the sum of twenty-one and promised, settled, and adjusted, and the re- 50/100 dollars ($21.50) per week, and under spective interests of the parties fixed as shown and by virtue of the provisions of the Texas by written instruments executed, respectively, Workmen's Compensation Act and said policy, on, to wit, April 25, 1916, and April 27, 1916; the beneficiaries under said act were entitled a true and correct copy of each of said instru- to have and receive the sum of twelve and ments being hereto attached and marked, re-0/100 dollars ($12.90) per week for a period spectively, Exhibit A and Exhibit B, and each of 360 weeks, or, in the event of a lump sum of said instruments being made a part hereof settlement, such amount as the parties might as though fully copied in this paragraph. agree upon, with the approval of the Industri"(11) Said Exhibit A evidences a contract al Accident Board, which payment_or and agreement by and between Mrs. Rowena ments said Southwestern Surety Insurance Hauck, surviving wife of Otto Hauck, of the Company, by issuing its policy to Frank one part, and William Hauck and Bertha Schott, as aforesaid, assumed to make, and Hauck, parties of the second part, whereby the which said Southern Surety Company, by its said William Hauck and Bertha Hauck ac- agreement and contract with Southwestern cepted the sum of five hundred dollars ($500) Surety Insurance Company, promised, bound, out of the consideration for the compromise, and obligated itself to make in lieu of said adjustment, and settlement of the cause of ac- Southwestern Surety Insurance Company. tion asserted against the Houston Lighting & "(14) Pursuant to the obligations imposed Power Company, 1905, in full and complete upon it under said act, Southern Surety Comsettlement and satisfaction of any interest said pany, for Southwestern Surety Insurance Comparties or either of them claimed or had for pany, and in liquidation of the obligations of damages or for compensation by reason of the said Southwestern Surety Insurance Company death of Otto Hauck; all of their right, title, in the premises, actually paid at the rate of and interest against either the Houston Light- $12.90 per week the sum of $361.20, and ing & Power Company, 1905, or against the thereafter, under an agreement for a lump insurance company being assigned to the said sum settlement, approved by the Industrial Mrs. Rowena Hauck. Accident Board, paid the further sum of $3,-* 726.27, aggregating the sum of four thousand eighty-seven and 47/100 dollars ($4,087.47), paid by Southwestern Surety Insurance Company and Southern Surety Company to Mrs. Rowena Hauck as compensation on account of the death of Otto Hauck, as a result of injury sustained in the course of his employment by Frank Schott.

"(12) Exhibit B evidences a contract and agreement by and between Mrs. Rowena Hauck, William Hauck, and Bertha Hauck, parties of the one part, and Houston Lighting & Power Company, 1905, party of the second part, whereby, for a consideration of seventyfive hundred dollars ($7,500) and court costs paid and to be paid to the parties of the first part by parties of the second part, the afore- "(15) Plaintiffs further show to the court said suit for damages was to be dismissed and that by entering into the compromise agreenot further prosecuted at any time in the fu- ment aforesaid with the Houston Lighting & ture. Of the aggregate consideration named, Power Company, 1905, the parties plaintiff thirty-five hundred dollars ($3,500) was paid therein, including the said Mrs. Rowena Hauck in cash, and as to the remaining four thou- and her attorneys, John W. Parker and K. C. sand dollars ($4,000) and interest thereupon, Barkley, deprived Southwestern Surety Insursaid Houston Lighting & Power Company, ance Company and its successor, Southern 1905, under and by virtue of said contract, Surety Company, of all opportunity of recouppromised, bound, and obligated itself to pay, ing itself for the amount paid out as a resubject to the stipulations and conditions here- sult of the death of Otto Hauck by an action inafter stated, said sum to Mrs. Rowena Hauck, in damages against the Houston Lighting & John W. Parker, and K. C. Barkley, in the re- Power Company, 1905; since, under the law spective amounts of twenty-seven hundred and applicable to such matters, the rights of the fifty dollars ($2,750), seven hundred and fifty insurance company would be by way of subdollars ($750) and five hundred dollars ($500) rogation to the asserted cause of action with interest at the date of six per cent. (6%) brought by Mrs. Rowena Hauck and the parper annum from the date of the agreement. ents of Otto Hauck, deceased; and in comBut, in contemplation of the claim by South-promising and settling said suit and said cause western Surety Insurance Company for sub- of action, said parties closed the door against rogation, by reason of said corporation being these plaintiffs in that direction, and they are the insurer of Frank Schott under the Texas now compelled to seek relief out of the fund Workmen's Compensation Act, and the conse- which said Houston Lighting & Power Comquent obligation and liability to pay compensa-pany, 1905, agreed to pay, conditionally, and tion on account of the death of Otto Hauck, said promised payments aforesaid were condi- which said fund said Houston Lighting & Powsaid promised payments aforesaid were condi- er Company now holds, subject to the result tioned upon the failure of said insurance com- of this suit. pany to maintain its claimed right of subrogation in the courts; and it was stipulated that considered, under and by virtue of the obliga"(16) Plaintiffs further show that, promises if such claim should be sustained, in that tions assumed in said policy of insurance, and event, for so much as the party of the second imposed by said Texas Workmen's Compensapart shall pay to the insurance company on tion Act, such being rendered fixed and certain account of its subrogation, to that extent shall by the death of Otto Hauck in the employment the party of the second part have credit on this obligation, holding itself liable and bound of Frank Schott, a subscriber, and by virtue to pay as stated the balance to the parties tions, by Southwestern Surety Insurance Comof the payment, in response to said obliganamed.' It was further provided that the second party's obligation to pay a part or all pany and Southern Surety Company of the of said four thousand dollars ($4,000) would aggregate sum of four thousand eighty-seven mature when and only when there had been and 47/100 ($4,087.47), and under and by vira final adjudication by a Court of Civil Appeals tue of the obligations assumed by Houston or the Supreme Court of Texas as to the Lighting & Power Company, 1905, in comproright of Southwestern Surety Insurance Com-mising and settling the cause of action aspany to subrogation against the party of the serted against it in said suit, and under and second part. For full and more complete de- by virtue of the right of subrogation which in tails of the contracts and agreements and their law inures to the benefit of these plaintiffs, nature and effect, reference is hereby made to said Houston Lighting & Power Company, said Exhibits A and B. 1905, promised, bound, and obligated itself and is now obligated to pay to plaintiffs the amount

"(13) Otto Hauck at his death was earning,

thereof as the fund held by said Houston | a beneficiary of a deceased employé of a subLighting & Power Company, 1905, will liquidate and satisfy. Having made demand for payment of said sum, plaintiffs further show that said Houston Lighting & Power Company, 1905, wholly fails to pay the same or any part thereof, to plaintiffs' damage in the sum of five thousand dollars ($5,000).

"(17) Plaintiffs further show that, by accepting the compensation payments aforesaid, Mrs. Rowena Hauck thereby in law and in equity relinquished and set over to the plaintiffs an interest in her said cause of action against Houston Lighting & Power Company, 1905, on account of the death of Otto Hauck to the extent of such payments; and by virtue of said payments made pursuant to the obligations theretofore assumed, plaintiffs became subrogated to the extent thereof to any rights against Houston Lighting & Power Company, 1905, asserted by Mrs. Rowena Hauck; and under the principles of law and equity applicable, premises considered, said Mrs. Rowena Hauck and her said attorneys holding and claiming under her an interest in said sum of money should now be required to relinquish the same in favor of these plaintiffs, and all right, title, and interest thereto should be adjudicated to these plaintiffs.

"(18) While insisting that the compromise entered into by Houston Lighting & Power Company, 1905, amounts to an admission of liability on its part for the death of Otto Hauck, and forecloses any question of negligence, yet, pleading in the alternative on this point, plaintiffs allege that the death of Otto Hauck was due to negligence of the Houston Lighting & Power Company, 1905, in that said corporation failed to exercise ordinary care in guarding against the hazard of injury or death in conducting its electrical current into the premises of Frank Schott. Plaintiffs cannot more particularly aver the negligence than to say that said Otto Hauck and his employer were in no sense negligent in the premises, and that the dangerous agency resulting in said Otto Hauck's death was entirely in the control of the Houston Lighting & Power Company, 1905, and said death, happening as it did without fault or negligence on the part of the said Otto Hauck, or his employer, itself evidenced negligence of the Houston Lighting & Power Company, 1905.

scriber, and where such beneficiary sues a third party for damages, claiming that deceased's death was due to negligence of such third party, and where such third party compromises the suit for a consideration, partly in cash and partly a fund held to protect itself against a claim for reimbursement by the insurer aforesaid, such fund would, under the law applicable to said Compensation Act and peculiar facts of this case, be subjected to the payment of said insurer's claim for reimbursement; all parties being before the court.

"(2) Under the Texas death-injury statute, and the law applicable thereto, Mrs. Rowena Hauck, if permitted to recover, could have recovered nothing save and except compensatory damages of and from Houston Lighting & Power Company, 1905, on account of the death of her husband negligently caused by said corporation, its servants, and agents; and since the Texas Workmen's Compensation Act was intended as a substitute for the remedies under the death-injury statute, and was not intended to enlarge the scope of benefits to be received by a survivor of a deceased employé, and since no such survivor would be entitled under the law to more than adequate compensation on account of the death, and since, by her own volition, Mrs. Rowena Hauck compromised the suit in which it must be presumed she could have recovered full compensation, so much of the consideration for such compromise as would be required to reimburse an insurer under the Texas Workmen's Compensation Act for moneys paid her as compensation should be deducted and applied to reimburse such insurer."

Thus it will be readily seen that appellants, who were insurers under the Texas Workmen's Compensation Act, against the injury which resulted in the death of Otto Hauck, and who, under the terms of the act and the provisions of its policy, became liable to Mrs. Rowena Hauck, as the sole beneficiary, and who have discharged that liability by paying to said beneficiary the full amount of its obligation, now claim that they are entitled to be reimbursed by the Houston Lighting & Power Company for the full amount so paid by them, on the ground that the death of said Otto Hauck was negligently caused by said Houston Lighting & Power Company. It is argued by appellants, among other things, that they are entitled to the relief sought, as follows: (1) Under the terms and provisions, as well as under the broad scope and purpose, of the Texas Workmen's Compensation Act; (2) because Mrs. Hauck claims and could have received under the Texas death-injury statute only compensatory damages (if any at all), and because she settled, of her own volition, with a negligent third party causing the damages, with notice that appellants would demand and seek reimbursement from such negligent third party; and that if the There is but one assignment of error found terms of settlement precluded appellants in appellants' brief, which is, in substance, from pursuing this negligent third party this that the trial court erred in sustaining a fact would necessarily be attributable to general demurrer to their petition, because it Mrs. Hauck's wrongful settlement, requiring appeared therefrom that same stated a cause that she relinquish all claim to the fund in of action, and that the averments therein, question; or, if the terms of settlement still taken to be true, would entitle appellants to left it open for appellants to pursue the neglithe relief prayed for. Under this assign-gent third party, this suit was properly filed ment we find two propositions, as follows: for that purpose, and the petition stated a "(1) Where an insurer under the Texas Work- cause of action; that therefore the demurrers men's Compensation Act pays compensation to were improperly sustained.

"Wherefore, premises considered, plaintiffs pray that citation issue to each of the defendants to appear and answer this petition, and that upon hearing of this cause plaintiffs have their judgment against Houston Lighting & Power Company, 1905, in the aggregate amount of the sum of four thousand dollars ($4,000), with interest thereupon from April 27, 1916, and that Houston Lighting & Power Company, 1905, be discharged as from any claims to said fund asserted by Mrs. Rowena Hauck, or John W. Parker, or K. C. Barkley, and that said parties and each of them be divested of any right, title, or interest in and to said sum, and that all such right, title, and interest be vested in these plaintiffs; and for all and singular such other and further rights and remedies as plaintiffs may be entitled to have and receive in law or in equity, and as in duty bound will ever pray."

We have searched in vain the provisions of the Texas Workmen's Compensation Act of 1913 (the amendment of 1917 can have no application here), and we have found nothing which in express terms supports the contention of appellants here, and therefore if their contention can have any support by the provisions of said act it must be that it is afforded by implication only. We note that appellants call attention to section 3 of part 1 of said act. That section reads as follows:

terms of the act, on account of an injury or death to an employé of a subscriber under the act, by pursuing some third person whose negligence might have caused such injury or death; and that is precisely what appellants are attempting to do in this instance.

In the case of Dallas Hotel Co. v. Fox, 196 S. W. 647, the Amarillo Court of Civil Appeals had under consideration the language of section 6 of the act, as above quoted, and that court held that the language of that section, coupled with other portions of the act, limits the injured employé under compensation, as well as the beneficiary, to the relief provided

"The employés of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such as against the insurance company, and that a subscribing employers for damages for injuries negligent third person could not be held liable resulting in death, but such employés and their to the employé or his beneficiary. representatives and beneficiaries shall look for decision in that case be correct, then, of compensation solely to the Texas Employés'

Appellants further cite section 6, part 2, of

said act, which reads as follows:

Insurance Association as the same is herein- course, Mrs. Rowena Hauck could not have after provided for: Provided, that all com- recovered in her suit against the Houston pensation allowed under the succeeding sections Lighting & Power Company, and, as stated herein, shall be exempt from garnishment, attachment and all other suits or claims, as are by appellants, the payment by that company current wages now exempted by law." now exempted by law." Ver- of any sum to her on account of the death non's Sayles' Ann. Civ. St. 1914, art. 52461. of Otto Hauck was a mere gratuity. Counsel ness of the decision in that case, but at the for appellants question, however, the correct"If a subscriber enters into a contract, writ- same time contend that even if the decision ten or oral, with an independent contractor, to in that case be correct still it does not necesdo such subscriber's work, or if a contractor sarily militate against their contention here. enters into a contract with a sub-contractor to We have read with much care the opinion do all or any part of the work comprised in of the Amarillo court in that case, and while such contract with the subscriber, and the association would, if such work was executed by employés immediately employed by the subscriber, be liable to pay compensation under this act to such employés, the association shall pay to such employés any compensation which would be payable to them under this act if the independent or sub-contractors were subscribers. The associations shall, however, be entitled to recover indemnity from any other persons who would have been liable to such employés independently of this section, and if the association has paid compensation under the terms of this section, it may enforce in the name of the employés, or in its own name and for its own benefit, the liability of such other persons. This section shall not apply to independent or sub-contractors on any contract which is merely auxiliary and incidental to, and is no part of or process in, the trade or business carried on by the subscriber." Vernon's Sayles' Ann. Civ. St. 1914, art. 5246qq.

the question there decided is not the precise question here, yet we are unanimously of the opinion that that court reached a correct conclusion on the question there, and that its reasoning is quite persuasive on the question here. We note that the Supreme Court, acting through the committee of judges, granted a writ of error in Dallas Hotel Co. v. Fox, but in doing so made this notation:

"Referred application granted. We are inclined to approve the conclusions expressed in the opinion of Mr. Justice Hall, yet the construction given to the Employers' Liability Act will apparently be conclusive upon the rights of the parties in the suit, and, moreover, the proper construction of the act as applied to the facts is otherwise important to any final disposition of the case."

We cannot feel that the Legislature, when It is this section 6 that appellants rely up- it passed the act in question, if it intended on, it seems to us, more than anything else thereby to take away absolutely all right of in the act, as sustaining their contention, action of an employé and beneficiary as and we concede that able counsel for appel- against some negligent outsider, could have lants have presented in their brief a very also intended that an insurance company persuasive and ingenious argument in sup- under the act should have a cause of action port of their contention, and we would be for reimbursement as against some negligent pleased to set out more at length their argu- outsider, such as the Houston Lighting & ment upon this contention if time and space Power Company in this instance, without exwould permit; but, conceding that the argu- pressly so providing. As stated by counsel ment of counsel in this connection is quite for appellants in their brief, it is generally plausible, we have concluded that the conten- known and understood that the Texas Worktion is not sound. We have discovered noth- men's Compensation Act of 1913 was modeled ing throughout the entire act under considera- after the Massachusetts act on the same subtion, that has caused us to believe that it was ject, and, indeed, was in nearly all respects the intention of the Legislature of this state a copy of the Massachusetts act. Section 15 to give to an insurance company in the atti- of part 3 of the Massachusetts act (St. 1911, tude of appellants here the right to reimburse c. 751), which applies to the case of an injury itself for moneys paid out in compliance with to an employé of a subscribing employer by a

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