The judgment of the trial court in this cause was reversed and the cause remanded on October 27, 1917, BUCK, J., dissenting to that part of the judgment sustaining the fourth assignment. A motion by appellee was filed, and on December 18th, following, we certified to the Supreme Court one question, whether we erred in sustaining said assignment. The supreme Court answered this question October 18, 1922, answering that this court did err in sustaining said assignment. See the opinion of the Supreme Court in 244 S.W. 117.
The cause is now before us on appellee's motion for rehearing. The fifth assignment complains of the failure of the court to grant a new trial because the evidence did not support the verdict and the findings of the jury. This contention is based upon the ground that the great preponderance of the evidence was to the effect that the plaintiff was served with notice, "and it was shown that large printed signs were staring him in the face everywhere he worked." The printed posters or signs were not notice as contemplated in this act, as held by the Supreme Court in answer to the certified question. So we will only consider the testimony as bearing upon the question of whether the defendant did actually serve the plaintiff with printed notice that the defendant was a subscriber to the Texas Employers' Insurance Association. The jury found in answer to question No. 1 that the defendant did not give the notice to plaintiff as provided in the act, and, in answer to question No. 2, that plaintiff did not know, prior to the time he was hurt, that the defendant had contracted with the Texas Employers' Insurance Association for the payment of indemnity to its employees. Upon this question of notice, Strib Moore, a witness for defendant, testified as shown in the original opinion. It will be noted that he said:
"It has not been the custom of the company to give the employee one of these notices (referring to the posters or signs), but we furnish them by nailing them up where they would be visible to any one."
On direct examination, plaintiff testified:
"With reference to their allegation in their answer that they gave me notice they were insured in the Texas Employers' Liability Association — will say while I was at Electra I signed up something in their office there. When I signed that, they asked me who to notify if I got hurt, or sick, or anything like that, and that is what they asked me to sign. When they got me to sign that paper, they did not say anything to me about insurance, and they did not give me a copy of what I signed. Will say that I do not recollect whether they gave me a copy of what I signed or not, I would not say for sure whether they did or did not. I do not know from what they said to me at the time I signed that paper, or from anything else at that time or any other time, that they had any insurance in any kind of a concern in Texas for employees. They did not tell me at that time or any time that they had insurance for their employees, and I did not know it. At the time I was injured, on the 14th day of September, I had not been informed by the company in writing or otherwise, or in any way informed, that they had insurance for me of any kind; I had no notice of any kind or character, that I recollect of, that they were carrying insurance in any concern for me. I do not recollect that they at any time told me or that any of their employees told me, or that any man told me, that they were carrying insurance in the Texas Employers' Liability Association, or any other concern, for my protection. They did not give me a copy of any written notice of any kind after I went to work for them the last time. At the time that I received these injuries on the derrick, I did not know anything about them carrying any insurance for me. The first time that I learned that the company claimed to be carrying insurance for me in the Texas Employers' Liability Association, was after I brought this suit, when Mr. Moore carried me down to the office and tried to get me to sign up some insurance papers. One of the boys came up to see me while I was sick, but he did not try to get me to sign any papers. It was some time after the injury that Mr. Moore tried to get me to sign some papers — I should think something like 18 days after the injury. I was coming from the show at that time, walking along and Mr. Moore came up and said, `Let's go down to the office,' and I went and he wanted me to sign up some kind of insurance papers. Mr. Moore is the agent of the Producers' Company at Petrolia; he at that time also tried to get me to sign some kind of an extra paper, I do not know what that was. I refused to sign all of the papers. Up to the *Page 314 time that Mr. Moore took me down to the office and tried to get me to sign those papers, after the injury, I do not recollect of having had any notice of any kind or character that the company claimed to have any kind of insurance in any concern for me."
On cross-examination, he stated:
"I know a man by the name of Bunk Reedy; I heard he got hurt, but I was not there at the time. I did not say to Reedy that this compensation law was no good and that the thing to do was to sue them and that he was crazy not to sue them; I do not recollect that. I do not recollect of telling him that I was going to sue them because the law was invalid. I did sign one document at Electra; I do not know what was in that, and I did not get a copy of it that I recollect of. I do not think that I signed any instrument at Petrolia, I do not recollect it, and my best judgment is that I did not sign anything there. I do not know whether there is anything wrong with my recollection. I do not know whether I hurt it when I fell off this derrick or not. I tell the jury that I do not think that I signed one of these papers or notices except the one that I signed at Electra; I am pretty sure of that; I had no other form of notice that I recollect now."
Witness further testified on cross-examination:
"I do not know when I went to work for the company the last time at Petrolia; it was after I left Burkburnett, and I should think it was tolerably late in the spring of 1916. This paper that you now show me is signed T. D. Daniels and I did not sign it — yes; I did. I see I signed it `Clyde Daniels' above where the T. D. Daniels is written; and this is the one signed at Electra, and I think that is the only one that I signed. This paper that you show me now, I did not sign. This third paper that you now show to me, I did sign; I signed Clyde Daniels. I do not know whether I signed this third one at Petrolia or not; it is dated in April, 1915, and I signed it all right. I was not at Electra in April, 1915, and I only worked for them at Electra and Petrolia. I do now admit that I signed two of these papers (marked D-1 and D-2 for identification) and I dispute signing the other one. I do not know how I come to forget signing this one at Petrolia; I just didn't recollect signing it; but it is signed by me all right. Yes, as I told the jury a while ago, I did not think that I had signed but one of these papers, but I see my signature, signed by me, to the other one, now. I do not recollect of them ever giving me a copy of these papers at the times that I signed them. I see that the notice says: `I acknowledge receipt of my copy of the above notice, this 1st day of December, 1915, and so on;' but I am not going to say that they did, or that they did not, give me a copy of them, because I don't know. * * * I think that I went to work for the Producers' Oil Company at Electra about a month before Christmas, 1915. ] was not working for them there in April, 1915 I do not recollect how I come to sign one of these notices back in April, 1915. The one that is dated the 1st day of December, 1915 is the one that I remember of signing at Electra I signed both of these (D-1, D-2); I do not remember anything about signing the one in April, 1915, but it has my signature on it; I signed it. I do not remember anything about signing any notices before I went to work for the Producers' Oil Company about December 1, 1915, at Electra. The other one that Mr. Kay showed me, which I did not sign, is signed `T. D. Daniels' and I signed both of these `Clyde Daniels.'"
The cards which plaintiff identified as having been signed by him, and dated April 8, 1915, are as follows:
"C257 15 44 Notice. As required by chapter 179, of the Acts of 1913, of the Legislature of the state of Texas, entitled, `An act relating to employers' liability and providing for the compensation of certain employees and their representatives and beneficiaries for personal injuries sustained in the course of employment and for death resulting from such injuries,' etc.
"This will give you notice that Producers' Oil Company has provided for payment of compensation for such injuries to its employees under said act with the `association' as provided in said Act. (This notice is given in duplicate; one copy to be retained by employee, the other copy must be dated and signed by employee and returned to the legal department at Houston, Texas.)
"Producers Oil Company,
"By E. E. Brooks, President.
"I acknowledge receipt of my copy of above notice, this the 8th day of April, 1915, and agree in case of injury to accept compensation under above law and waive all action for damages.
"Clyde Daniel, Employee."
The other notice is exactly the same as the April notice, except the last clause, which reads as follows:
"I acknowledge receipt of my copy of above notice this the 1st day of December, 1915, and agree in case of injury to accept compensation under above law and waive all action for damages. Clyde Daniel, Employee.
"Age 27.
"Employed at Electra, Texas.
"Case of injury, notify T. D. Daniels, Petrolia, Texas."
Has stamp by rubber stamp on face of it as follows:
"Received Dec. 6, 1915. J. S. B."
No other testimony is shown in the record bearing upon the question of notice, except the presence of posters tacked up on the derricks and other places. The burden of proof was on defendant to show the service of notice in plaintiff. These cards signed by plaintiff evidently were not left with him, but were retained by the defendant in their files. Plaintiff testified in one place that no notice was in fact served on him and left with him at the time he signed these two acknowledgments, and at other times he states that he was unable to say whether such notices were given to him or not, but asserts positively at all times that he did not know *Page 315 that the defendant company was a subscriber to the association; that when he signed these cards he was told that the company merely wanted information as to whom to notify in case of his death, injury, or sickness, and that he did not read them. Where a statute directing notice to be given is silent as to the manner of giving it, personal service is necessary. Producers' Oil Co. v. Daniels, on certified question, supra, and cases cited in 29 Cyc. p. 1119, sub. C-2. Inasmuch as the plea of membership in the Texas Employers' Insurance Association was a special defense, and the burden of proof was on defendant to establish personal notice to plaintiff thereof, at least the majority of us do not believe that we are warranted in disturbing the verdict of the jury and the judgment of the court on that issue. The weight of the testimony and the credibility of the witnesses are matters peculiarly within the province of the jury. Roberts v. Wichita Southern Life Ins. Co., 221 S.W. 268, by Commission of Appeals. We are not able to say that from the evidence before the jury they were not warranted in finding that the defendant had not personally served plaintiff with notice.
The motion of appellee for rehearing is therefore granted, the judgment of reversal is set aside, and the judgment of the trial court is affirmed.