I am unable to agree with my Associates and the several Courts of Civil Appeals, whose opinions are cited in the opinion of the majority of the court in this case, in holding that the employé of a subscriber under the Texas Employers' Liability Act of 1913 could maintain a common-law action for damages against his employer for personal Injuries received in the course of his employment after the employer had become a subscriber under said act, but before the employé had received notice of the fact. It seems to me that, in *Page 845 order to give the act the construction placed upon it by the majority, the most fundamental rules for the construction of statutes must be violated, and the well-marked boundary line between fair construction and judicial legislation obliterated. Having, after mature consideration, reached this conclusion, and believing that this disregard of the cardinal rules for construction of statutes opens the way for a dangerous encroachment by the courts upon the lawmaking power which our Constitution exclusively confers upon the legislative branch of our government, I feel constrained to respectfully dissent from the opinion of the majority, notwithstanding the fact that since the recent amendment of the statute in 1917 this exact question will not likely again arise.
Section 3, pt. 1, of the act (article 52461, Vernon's Sayles' St.), provides:
"The employés of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employers for damages for injuries resulting in death, but such employés and their representatives and beneficiaries shall look for compensation solely to the Texas Employés' Insurance Association as the same is hereinafter provided for."
The exemption of an employer, who, in compliance with the provisions of the statute, has provided insurance for the compensation of his employés for injuries received in the course of their employment, from suit for damages for personal injuries by an employé is given unconditionally in plain and explicit language. But the majority of the court, invoking the sound and well-settled rule that in construing any part of a legislative act the whole act should be considered, and its several parts so interpreted and harmonized as to give effect to the intention of the Legislature as disclosed by the entire act, say that this provision of the act does not mean what it says, because section 19, pt. 3, of the act (article 5246x, Vernon's Sayles' St.), provides:
"Every subscriber shall, as soon as he secures a policy, give notice, in writing or print, to all persons under contract of hire with him that he has provided for payment of compensation for injuries with the association ;"
and because there having been great doubt in the public mind at the time this act was passed as to whether an act which deprived an employé nolens volens of the common-law cause of action against his employer for damages for personal injuries would be constitutional, it will be assumed that the Legislature entertained this doubt, and in recognition thereof intended that the act denying the employé the right to sue his employer for damages for personal injuries should not be operative as to an employé who had not, before his injury occurred, been given notice as directed in the provision of the act last quoted.
It seems to me that this construction of the act is wholly unwarranted. The provision for notice to the employé is merely directory, and cannot, under well-settled rules of decision, be given the effect of a mandatory statute. State v. Connor, 85 Tex. 143; Kulp v. Railey, 90 Tex. 310; Altgelt v. Callaghan, 144 S.W. 1166. It occurs in an entirely different part of the act from the provision denying an employé the right to sue a subscriber employer, and there is nothing in the context to indicate that the two provisions are related to, or dependent upon, each other. It is not necessary, in order to give effect to this requirement of notice, to regard it as a limitation upon the provision exempting the subscriber from suits for damages. I think the reasonable construction of the act is that the only purpose of the Legislature in requiring this notice was to enable the employé to comply with section 4a, pt. 2, of the act (article 5246ppp, Vernon's Sayles' St.), which provides:
"No proceeding for compensation for an injury under this act, shall be maintained unless a notice of the injury shall have been given to the association or subscriber, as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employé, or in the event of physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity."
If an employé of a subscriber under this act was kept in ignorance of the fact that his employer had become a subscriber, such employé would not know that he was required, in order to obtain compensation for injuries received by him in the course of his employment, to comply with the provision of the section of the act last quoted; and, in order to obviate the delay and complications that might be thus caused the employé in collecting the compensation due him, it is an appropriate and reasonable requirement that the employer when he becomes a subscriber shall give notice of that fact to his employés.
It being entirely consistent with the general purpose and intent of the act as a whole to accord to this requirement as to notice to the employés the purpose and effect stated, it should be given this construction rather than one which is entirely out of harmony with the general purpose and intent of the statute. As plainly indicated in the body of the act and in the emergency clause, the purpose of the statute was to change the existing law in regard to liability of employers for personal injuries to their employés, or for death resulting from such injuries, so *Page 846 that employés sustaining injury in "industrial accidents" might have adequate protection. In order to provide such protection to employés of persons engaged in industrial pursuits, the employers are required to provide compensation insurance for all of their employés under penalty of being deprived of their common-law defenses against claims for damages for injuries received by the employés in the performance of the duties of their employment if they failed to provide such insurance. It greatly lessens the beneficial operation of the act to give it the construction placed upon it by the cases of Kampmann v. Cross, 194 S.W. 437, Rice v. Garrett, 194 S.W. 670, and Farmers' Petroleum Co. v. Shelton, 202 S.W. 194, which hold that the act does not become operative as to an employé who has not been given the notice required by article 5246x, above quoted. This interpretation of the requirement as to notice is not only directly contradictory of the express and unequivocal provisions of article 5246i, but is so out of harmony with the general purpose and intent of the act, and would cause it to operate so unfairly and unequally upon those for whose benefit it was passed, that my Associates decline to adopt such construction. It seems to me that the construction given the act by the majority opinion in this case is hardly less obnoxious to rule of equality and uniformity than that given in the opinions cited. There is nothing in the language of the act which suggests, nor is there any reason for supposing, that the Legislature intended by this act to say that an employé who had received notice that his employer had obtained accident insurance for his benefit could look only to the insurance company for compensation for any personal injury he might receive, but an employé of the same employer, doing exactly the same kind of work, who had not received such notice, could hold the insurance company or his employer liable as he might elect, or as the circumstances under which he was injured showed the injury was due to his own or his employer's negligence.
The only reason offered by the majority opinion for attributing this intention to the Legislature is the supposed general doubt in the minds of the Legislature of its constitutional right to abrogate the rule of the common law which gives to an employé a right of action against his employer for damages resulting from personal injuries. We have no means of knowing how prevalent this doubt may have been, nor to what extent it may have affected the minds of the Legislature. We do know, however, that there was very little foundation for such doubt, because it had been held by courts of the highest authority, both before and since the passage of this act, that no one has a vested interest in the rules of common law themselves. If a property right has vested under a common-law rule, such right cannot be de stroyed by a change in the rule, but it is entirely competent for the Legislature to change or repeal such rules. Middleton v. Texas Power Light Co., 108 Tex. 96,185 S.W. 556.
One cannot read the majority opinion in this case, nor the opinions cited to support it, without reaching the conclusion that the controlling idea in the mind of the court was that the common-law right of action could or should not be taken away from the employé without his consent; and therefore unless the notice required by the statute was given, and the employé after receiving such notice remained in the service, he should not lose his common-law right of action. With this idea uppermost in their minds, they attribute an intention to the Legislature, in, enacting the provision as to notice, which, is not only not evidenced by anything in the language of the act, but contrary to its express provisions and its general purpose and intent. In other words, they unconsciously give the act a meaning in conformity with what they think the law ought to be, in disregard of what the Legislature said it should be. In order to give the act this construction, the majority opinion goes outside of the act, and bases its holding upon the assumption that the Legislature doubted its power or right to take from an employé without his consent, the common-law right of action for damages resulting from personal injuries, and therefore intended that the act should not have this effect as to an employé who had not been given the required notice. This is not a permissible method of construing a legislative act. If the meaning and intention of the Legislature can be ascertained from the act itself, and all of its provisions harmonized and given effect, it is not permissible to resort to other means of interpretation. Even if the court is satisfied that the Legislature meant something not expressed in the act, it cannot depart from the plain meaning of the language, and give effect to such unexpressed intent. To follow any other rule of construction would be the usurpation by the courts of the legislative function.
The rule of construction which I think should be followed in interpreting this statute is thus clearly stated in the case of Alexander v. Worthington, 5 Md. 485:
"The language of a statute is its most natural expositor; and, where its language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations. The construction is to be on the entire statute, and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is opposed *Page 847 to the other construction, then we are to adopt that construction which will render all clauses of the statute harmonious, rather than that other construction which will make one part contradictory to another. Where the letter of the statute is inconsistent with itself, we may eviscerate an intent by considering the mischief existing and the remedy proposed to be introduced. * * * We are not at liberty to imagine an intent, and bind the letter of the act to, that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute, and of the several constructions that is to be preferred which introduces the most general and uniform remedy."
It is never permissible to give a provision of a statute a different meaning from that plainly expressed by its language unless such meaning is contradicted by other plainly expressed provisions, or is repugnant to the general purpose and intent of the statute considered as a whole.
We cannot create a conflict in the provisions of a statute by giving any of its provisions a meaning not required by its plain and unambiguous language. Sutherland on Statutory Construction, pars. 237 to 241, inclusive, and cases there cited.
It follows from the views above expressed that I am of opinion that the judgment of the court below should be reversed, and Judgment here rendered for appellant. *Page 991