I am not in accord with the contentions of appellee relating to the effect of section 2 of article 8306, R.C.S., nor with the reluctance of its application to this case indicated by the majority in the opinion overruling the second motion for rehearing. If all other rules of construction were set aside, the language used in sections 1 and 2 of article 8306 might be given the meaning sought to be applied by appellees. Whether there is substantial merit in the contention or not, I think the matter is foreclosed by the numerous decisions of our Supreme Court and those to which it has given sanction, in holding that section 2 is applicable to workmen's compensation cases. I have not always readily agreed to the disposition of cases made by our Supreme Court, nor to its constructions of statutory provisions, but whether I believe them correct or not is of no concern to our jurisprudence. That court's construction and application of a statute become the law until changed by the same court or the provision is repealed or amended.
I concur in the disposition made by the majority of the motion to amend the transcript as disclosed by the foregoing conclusions as well also in overruling the motion for rehearing, only, insofar as they declined to affirm the judgment of the trial court.
I want to add an additional reason to what I have previously said relative to the necessity of a pleading by the insurance carrier in this case, setting up affirmatively, and assuming the burden of proving that the employer held no legal contract of workmen's compensation insurance, under which plaintiff could recover, based upon the improperly admitted testimony that the employer had less than three employees at all times.
Our Workmen's Compensation Law is embraced within Title 130, articles 8306 to 8309a, Vernon's Annotated Texas Civil Statutes, along with the many sections and subdivisions of each of those articles. Within the body of the whole Act we find our authority for compensation to workmen who are injured by accidental means while in the course of their employment. This compensation extends to the legal beneficiaries when the injury results in death to the employee. The exception found in section 2 of article 8306 is not in the body of the law which creates the right of action for compensation; but is a proviso or exception set apart to itself, independently of the language used to create the right to compensation. In other words, if an exception or exemption from liability is found in the enacting clause or in the law which creates the right of action, it must be negatived by the plaintiff in his pleadings and he has the burden of proof to establish it as a fact, but if the exception, proviso, or exemption from liability is found, as in the instant case, in a subsequent and separate section of the Act, it becomes a matter of defense and must be pleaded and proved by the defendant. The fact that plaintiff in this case alleged that the employer had three or more employees was unnecessary and may be treated as surplusage.
Apparently, there is a conflict of authorities in other jurisdictions, but the above rule of application is the one adopted in Texas and many of the other states. See 41 Amer.Jur. § 94; 130 A.L.R.Anno.pp. 440, 452 to 457;Rule 94, Texas Rules Civil Procedure; Lane v. Bell,53 Tex. Civ. App. 213, 115 S.W. 918, writ refused; Spence v. Fenchler,107 Tex. 443, 180 S.W. 597 (607); Quanah A. P. R. Co. v. Bone, Tex.Civ.App. 199 S.W. 332 (336); Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521; and Fidelity Union Casualty Co. v. Carey et al., Tex.Com.App., 55 S.W.2d 795. Other states holding to the same principle are Alabama, Georgia, Indiana, Kentucky, Mississippi, New Jersey, Ohio, Oklahoma and Oregon.
I have a very profound respect for the opinions of my associates, but under the facts and circumstances revealed by this record and the cited authorities, I am unwilling to assent to a rendition of this judgment in favor of the insurance carrier and not give plaintiff an opportunity to meet, if she can, the fact that she is to to be deprived of a recovery because the employer said he had never had more than two employees, when no such affirmative *Page 684 defense had been pleaded by the carrier. The admission of such testimony over plaintiff's objections was not harmless error. I am fully convinced that the case should be remanded to the trial court rather than rendered, as ordered by the majority.