On Motion for Rehearing. Both appellant and appellees have filed motions for rehearing, the appellant contending that we should have rendered judgment here in its favor. Mr. Justice *Page 680 BROWN and the writer have reached the conclusion that appellant's motion in such respect should be granted.
It is not without reluctance that we conclude that appellees should be denied a recovery because of the undisputed showing in the evidence that the employer in this case had never at any time had more than two employees.
Article 8306, sec. 2, Revised Civil Statutes, reads as follows: "The provisions of this law shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers, ranch laborers, nor to employés of any firm, person or corporation having in his or their employ less than three employés, nor to the employés of any person, firm or corporation operating any steam, electric, street, or interurban railway as a common carrier. Any employer of three or more employés at the time of becoming a subscriber shall remain a subscriber subject to all the rights, liabilities, duties and exemptions of such, notwithstanding after having become a subscriber the number of employés may at times be less than three."
We have not been cited to nor have we found a Texas case upon the question whether a recovery will be denied where the employer has less than three employees, even though a policy of compensation insurance had been issued. In other jurisdictions it appears to have been held that the employer must have not less than the minimum number of employees set out in the statute in order to entitle the injured employee to prosecute a claim for compensation. See cases cited in footnotes in 71 Corpus Juris, Workmen's Compensation, §§ 127, 128, and 136, and in the annotation in 81 A.L.R. 1222. It was held in Pine v. State Industrial Commission,108 Okla. 185, 235 P. 617, that the question was one of jurisdiction which could be raised at any time, even on appeal.
In Hill v. Georgia Casualty Co., Tex.Com.App., 45 S.W.2d 566, it was held that under article 8306, sec. 2, above quoted, farm and ranch laborers were excepted from the operation of the Workmen's Compensation Law, and could not recover compensation, although the employer had been issued a policy which apparently was intended to cover the employee in question. Citing the Inabnit case, infra, it was held that employees who did not fall within the operation of the law could not be brought under its operation by agreement. The case is followed in Holmes v. Travelers Ins. Co., Tex.Civ.App. 148 S.W.2d 270, writ refused.
In Southern Surety Co. v. Inabnit, 119 Tex. 67, 24 S.W.2d 375, 377, the claimant was acting as a receiver, appointed by a court, for an oil company. The court held that he could not, in his capacity as receiver, be regarded as an employee within the terms of the Workmen's Compensation Law. The court also considered the question of estoppel, based upon the theory that the insurer had collected premiums with the knowledge that Inabnit was carried on the payroll of the subscriber as an employee. The court said: "A plea of estoppel cannot be used for the purpose of enabling the Industrial Accident Board to acquire jurisdiction over a case where no jurisdiction in fact exists. This being an appeal from the award of the Industrial Accident Board, the jurisdiction of the district court to hear the case de novo depended upon the jurisdiction of the Industrial Accident Board. The latter tribunal is one of limited powers. It is only authorized under the act creating it to award compensation, where it is shown that the person seeking compensation is an employee within the contemplation of such act. As Inabnit was not such employee, the Industrial Accident Board had no jurisdiction to enter any award requiring the payment of compensation. Its jurisdiction could not be conferred by any agreement of the parties or by an estoppel based thereon. To so hold would enable employers and insurance companies to protect classes of persons to whom the Legislature has not seen fit to extend the benefits of the Workmen's Compensation Law."
The right to recover workmen's compensation benefits exists solely by reason of the statute. A claimant who pursues this statutory remedy must bring himself and his case within the limitations of the statute. The employee must be shown to have been of the class intended to be benefited by the statute. The majority of the court believe that the provisions of section 2 of article 8306 are not so limited in their scope as merely to provide defenses which the insurer must affirmatively plead. We believe, under the holding in Hill v. Georgia Casualty Co., Tex.Com.App.,45 S.W.2d 566, supra, that the persons named in section 2 are excluded from prosecuting a claim for workmen's compensation, or, to *Page 681 use the wording of the statute, that the provisions of the Workmen's Compensation Law do not apply to their cases. It would follow, we think, that if it should at any stage of the proceedings appear to the court that the employee was one of those named in section 2 that the court should decline to grant the claimant any relief under the terms of the Workmen's Compensation Law. Whether a claimant in such situation might have some sort of suit on the contract of insurance, as distinguished from a claim for compensation which must first be presented to the Industrial Accident Board, we do not undertake to decide because we do not have that sort of case here.
The majority of the court find themselves unable to agree with the holding heretofore made that the case is governed by Rule 94, which requires a defendant to plead illegality as a defense. As we see the case, we are not confronted with the question of legality or illegality of the contract, because we do not reach that point. It appearing without dispute that the employee was one of those named in section 2, it must be held that the claimants are precluded by the terms of that section from pursuing the statutory remedy, so that it becomes immaterial whether there was a contract of insurance, or whether it was legal or illegal. According to the opinions in the Hill and Inabnit cases, the employer and the insurer could not by their agreement confer authority upon the court to grant relief under the Workmen's Compensation Law where such authority did not in fact exist.
In their petition the claimants alleged that the employer had three or more employees. The insurer's answer contained a general denial. Such allegations did not come within Rule 93, and particularly section (n) of Rule 93. Therefore, the general denial put such matters in issue. Rule 92.
The members of the court are still in agreement with all that is said in the opinion heretofore handed down under the signature of Mr. Justice SPEER, except as above indicated, and we withdraw only so much of such opinion as holds that it was necessary for the insurer to plead affirmatively the matters above discussed. Mr. Justice SPEER adheres to the views expressed in the former opinion.
It appearing that there is an insurmountable obstacle in the way of a recovery by the claimants, it would avail nothing to remand the case for another trial.
Our former judgment is set aside in so far as it ordered the cause remanded for another trial, and judgment is here rendered for appellant.