I cannot concur in the conclusion of this court. Appellant, Texas Employers' Insurance Association, under the Workmen's Compensation Laws of Texas, made a contract with and issued a policy to the Diamond Mill Elevator Company, of Sherman, Tex., indemnifying it against liability for injuries to its employees arising in the course of their employment, and agreed to pay the compensation provided for under the law. The terms and conditions of the policy, and the classification of the hazards which appellant assumed are specified in the law, and must be considered as being embodied in the policy of indemnity. It cannot be presumed that appellant agreed to do more than that which it was compelled to do under its policy, and within the scope of the law. It must be observed that the terms of the policy limited the liability of the insurer to injuries suffered by an employee of the Diamond Mill Elevator Company while engaged in the "usual course of trade, business, profession, or occupation" of the milling company. The hazards which appellant contracted to insure, and to which the Diamond Mill Elevator Company assented in accepting the policy, are those incident to and in furtherance of the usual business of the milling of flour and other products, and those hazards which might reasonably be anticipated as being incident to, and in furtherance of, that business. The usual business of the Diamond Mill Elevator Company was that of milling flour and mill products. The insurer knew the risk and hazards that it undertook *Page 930 to indemnify, and the rate of premium applicable thereto. In consideration for such premium, appellant assumed such risk and hazards, and contracted to pay the compensation provided by law. The Diamond Mill Elevator Company was not engaged in the business of erecting buildings, and it could not reasonably be anticipated by the insurer and by the party insured that it would be so engaged. Its business was that of milling flour and other products, and such was the usual business of the company. The erection of the building described in the evidence was unusual, and could not reasonably have been anticipated as being incident to, and in furtherance of, its milling business. It might have been reasonably anticipated that the milling company would, through necessity, make repairs and cause replacements, and even build additions to its business; but when it stepped aside from its usual business, and that which might have been reasonably anticipated as being incident thereto, and began the erection of a new and independent addition to its mill, the construction of a substantial building three stories in height, 72 feet in length, and 72 feet in width, it thereby took itself from the protection of the policy and outside of the purview of the law, and assumed liability to its employees for injuries sustained by them while engaged in or about the furtherance of its affairs or business.
I reached the conclusion with great reluctance; but I must read the policy and determine the contractual rights and responsibilities in the present case in the light of and in conjunction with the statutes, and in harmony with the decisions of the highest courts of the state. The case of Oilmen's Reciprocal Ass'n v. Gilleland (Tex.Com.App.) 291 S.W. 197, 201, and the authorities cited therein, and referred to by the majority of this court, is decisive of this case. In that case the court said:
"It is our view that the California court adopted the proper policy and refused to ignore this word `usual' or give to it any unusual meaning. The ordinary meaning of the word `usual' is given by Webster's New International Dictionary as follows: `Such as is in common use; such as occurs in ordinary practice, or in the ordinary course of events; customary; ordinary, habitual; common.'
"The same dictionary tells us that the word is synonymous with `accustomed, common, wonted, ordinary, regular.' It goes without saying that walling up a pit with brick is not in the ordinary course of the laundry business.
"In one word, it is clear that Gilleland was a bricklayer. Therefore he was unquestionably engaged in the usual course of his own business when killed. But, it is equally clear that he was not, in any sense, in the usual course of his employer's business at that time."
The employee Wright, in the instant case, at the time of his injury, was engaged in the furtherance of his employer's business; but I cannot say that he was engaged in the usual course of trade, business, profession, or occupation of his employer. It is immaterial whether he was a regular or a casual employee. It is not a question as to his contract of employment, but a question as to the business his employer had him engaged in at the time of his injury. In the above-cited case, the court quoted with approval the opinion of the Court of Civil Appeals,285 S.W. 648, as follows:
"The Court of Civil Appeals in this case, in giving a history of the clause in the statute now under consideration, speaks as follows:
"`The Workmen's Compensation Act of Texas seems to have been fashioned very largely after the Massachusetts act. The original act in Massachusetts * * * in defining employee, excepted `one whose employment is but casual or is not in the usual course of trade, business, profession or occupation of his employer.' This definition was adopted when the Texas law was enacted. Vernon's Sayles' Civil Statutes, art. 5246yyy. Later, after the Massachusetts law had been amended * * * eliminating the words `but casual or is,' the Texas act in 1917 * * * was also amended so as to conform in this particular with the Massachusetts amendment. Vernon's Civil Statutes 1918, art. 5246 — 82. The effect of this amendment was to broaden and liberalize the scope of the act with reference to who should be classed as employees, and, as amended, one who is only casually employed is entitled to the benefits of the act if he is injured while in the usual course of the trade, business, profession, or occupation of his employer. R.S. art. 8309, § 1.'"
In the case of Employers' Liability Assurance Corporation v. Cook,281 U.S. 233, 50 S. Ct. 308, 309, 74 L. Ed. 823, Cook was a regular employee of the Ford Motor Company, and as a part of his contract of employment was assisting in unloading cargo from a ship when on navigable water, and while so engaged on the ship he was injured. He was under the instruction from the Ford Motor Company to assist in unloading the ship. In the instant case, Wright was a regular employee of the Diamond Mill Elevator Company and was engaged in assisting in the construction of a substantial building, and was under the instructions from his employer. The Supreme Court, in that case, said: "Whether Cook's employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important." It further held *Page 931 that, since the unloading of vessels anchored on navigable waters was outside the purview of the Workmen's Compensation Laws of Texas, it was unimportant whether the unloading of such vessel was a part of the regular employment of Cook.
The law also excludes coverage of one whose employment is not in the usual course of trade, business, profession, or occupation of his employer. Article 8309, § 1, R.S. 1925. It was unimportant whether the construction of the building was a part of the regular employment of Wright. Was it the usual business of the milling company?
The employee Wright has his remedy against his employer, under the Workmen's Compensation Laws of Texas. For the reasons assigned, I respectfully dissent, and believe that this cause should be reversed and rendered.