On Second Motion for Rehearing. In their second motion for rehearing appellees contend that we erred in holding that they were precluded from recovering compensation because the employer had never had as many as three employees. Appellees argue that section 2 of article 8306 applies only to damage suits against an employer, and not to suits against an insurance carrier to recover workmen's compensation.
It was with reluctance that we held that section 2 of article 8306 applied to this case. But, however logical might be the contention made by appellees, we are faced with the holding in Hill v. Georgia Casualty Co., Tex.Com.App., 45 S.W.2d 566, which is clearly predicated upon the theory that section 2 of article 8306 applies to compensation suits, and also with the expressions of approval of such holding which are to be found in the opinions in Guerrero v. United States Fidelity Casualty Co., 128 Tex. 407, 98 S.W.2d 796; Maryland Casualty Co. v. Dobbs,128 Tex. 547, 100 S.W.2d 349; and Holmes v. Travelers Ins. Co., Tex. Civ. App. 148 S.W.2d 270, writ of error refused. Those cases all appear to rely on the holding in Gordon v. Buster, 113 Tex. 382, 257 S.W. 220, without giving consideration to the fact that Gordon v. Buster was a damage suit against an employer who did not carry compensation, and was not a suit against an insurance carrier to recover workmen's compensation.
Section 1 of article 8306 obviously applies to damage suits, and not to compensation suits, and it seems to us that it might with good reason be thought that section 2 is only an exception to the general enactment contained in section 1. Section 1 takes away certain common law defenses in damage suits brought by an employee; and section 2, by way of exception, preserves such common law defenses to the employers of farm hands, the employers of less than three employees, and the other employers therein named.
The pronouncements of the Supreme Court, in the cases above cited, are to the effect that section 2 of article 8306 also applies to suits for workmen's compensation.
As is shown by the opinions heretofore rendered by us, we have in the case also a question of pleading. It is the belief of Mr. Justice SPEER that the defense in question is not available to the insurance carrier because it was not raised by special plea.
After we handed down our opinion reversing and rendering the cause in favor of the insurance carrier, its attorneys filed in this court a motion to supplement the record. The purpose of the motion is to establish that the defense in question was raised in a trial amendment filed by the insurance carrier. Attached to the motion is a copy of a pleading filed by the insurance carrier, certified by the clerk of the trial court. According to a marginal notation the pleading (which sufficiently alleges that the employer at all times material had less than three employees) was filed fourteen days after the entry of final judgment in the court below. Accompanying the motion is a statement, signed by the official court reporter, to the effect that the insurance carrier's attorney dictated the trial amendment to the court reporter during the trial.
In order that the full record may be available in the event application should be made to the Supreme Court for a writ of error, we have ordered the motion and its accompanying exhibits filed, but we are of opinion that we cannot consider the trial amendment for any purpose. We do not believe that the statement of the court reporter can be considered by us, because, if for no other reason, a statement of facts must be agreed to by both parties, or else approved by the trial judge; neither of which has been done here. The copy of the trial amendment which is certified by the clerk of the trial court shows on its face that it was filed two weeks after the trial was concluded, and there is nothing in the certificate of the clerk to the contrary. It has been held that a pleading dictated to the court reporter, but not written up and filed until after the term of court had ended, could not be considered. Copeland v. Williams, Tex.Civ.App. 282 S.W. 261. In the case before us we do not have a proper showing that the pleading was dictated in open court, even if we should be inclined to consider such a procedure a sufficient compliance with the rule that pleadings must be in writing, signed, and *Page 683 filed with the clerk of the court. Rules 45, 74. A mere statement from the court reporter, not agreed to by the parties, nor approved by the court, is insufficient to constitute a proper transcript of the proceedings purporting to be described therein. Rule 377.
Appellees' motion for rehearing is overruled.