(dissenting).
Not being able to agree with my associates, I hereby file the following dissenting opinion:
This suit was brought by the appellees to recover compensation under the workmen’s compensation laws of this state. The trial was had with a jury, and upon the verdict of the jury, judgment was entered in favor of appellees. The petition of appellees alleged, in substance: That Ernest Emmert was the husband of Mrs. Ethel Emmert, and that Ernestine Emmert, Billy Emmert, and Betty Emmert were the three children of Ernest Emmert and Ethel Emmert That Ernest Emmert sustained accidental injuries on the 6th day of March, 1933, while working in the course of his employment for Oil Field Water Company in Rusk county, Tex., which resulted in his death on the 7th day of March, 1933. That the defendant, Traders’ & General Insurance Company, is a private corporation, duly incorporated under the laws of the state of Texas, and operating and doing a liability, accident, and indemnity insurance business in the state of Texas under and by virtue of a permit issued by the commissioner of insurance of the state of Texas.
That the Traders’ & General Insurance Company on or before the 6th day of March, 1933, executed, issued, and delivered to the said Oil Field Water Company a policy of workmen’s compensation insurance under the general laws of the state of Texas and under what is commonly known as the Workmen’s Compensation Law or Employers’ Liability Act of the State of Texas (Vernon’s Ann. Civ. St. art. 8306 et seq.), which covered accidental injuries sustained by employees of the said Oil Field Water Company resulting in disability of any and every nature or death to said employee. That the said Oil Field Water Company Was, at the time of, before, and since, the execution, issuance, and delivery of said policy of insurance, in full force and effect on or about the 6th day of March, 1933, at the time and occasion that Ernest Em-mert sustained accidental injuries resulting in his disability and death. That plaintiffs were dependent upon Ernest C. Emmert, he being their sole and only support, and therefore plaintiffs are entitled to recover of and from defendant, Traders’ & General Insurance Company, judgment for compensation insurance under the policy issued by said Traders’ & General Insurance Company to the Oil Field Water Company.
The case was submitted to a jury on special issues and all said issues answered favorably to appellees. The record shows, it is claimed, that the Oil Field Water Company was a partnership composed, at first, of Ei-lers and Jones, and as Jones sold his interest in this partnership to Kerr and Gary on February 25, 1933, the old partnership, it is claimed, was thereby dissolved and a new partnership composed of Eilers, Kerr and Gary was formed, and was operating the business on March 6, 1933, when Emmert received his injuries. It is further contended that at the time Emmert was injured he was an employee of, and working for the partnership of Eilers, Kerr and Gary and not for the partnership of Eilers & Jones, and so ap*212pellant contends there was no liability on the defendant to plaintiff, and the court should have instructed the jury to return a verdict for the defendant.
The record shows the insurance in question was issued to the “Oil Eield Water Company.” Emmert was an employee of the Oil Field Water Company at the time the policy was issued, and was such at the time of his accident resulting in his death. It is further shown that the notice of becoming a subscriber to the Compensation Act was given by the Oil Field Water Company as the name of the employer, which notice- was transmitted to the Industrial Accident Board by the Traders’ & General Insurance Company with additional' information, which recites that the name of the employer is the Oil Field Water Company over the signature of the Traders’ &'General Insurance Company by B. I>. Morgan. The entire record of the Industrial Accident Board, from the notice by the employer of becoming a subscriber up to and including the notice by defendant company of its unwillingness to abide by the decision of the accident board, and its appeal to the district court of Rusk county, Tex., each and all refer to the Oil .Field Water Company as the employer, and Emmert as an employee of the Oil Field Water Company. , The “declaration” made by-the Oil Field Water Company declares it to be the employer; the policy provides, among other things, to “indemnify this employer against loss by reason of the liability imposed on him on account of such injuries,” and further provides: “The obligations of paragraph one, (1) foregoing are hereby declared to be the direct obligations and promises of the Company to any injured employee covered hereby, or in the event of his death, 'to his dependents; and each of such employee or such- dependent the Company is hereby made -directly and primarily liable under said obligations and promises. ⅜ * * )> jg ciear that while this insurance contract is made on its face with the employer, Oil Field Water Company, it is also made for the benefit of the employees of the company. The policy says, “this contract is made for the benefit of such employees of such dependents.’’ I think appellant is in error in its conclusion that the policy was issued to the partnership composed of Eilers and Jones, but rather I think the policy was issued to the Oil Field Water Company as employer, composed of Eilers and Jones.1 The point is, no matter who, nor how many, composed the firm of the Oil Field Water Company, this does not change the fact that the Oil Field Water Company was the designated employer, and was in fact the employer. The contract was for the benefit of the employees of the Oil Field Water Company, and being made for their benefit, the contract was necessarily made with such employees themselves. There is nothing to indicate that the contract was made with the employers of Eilers and Jones, nor for the benefit of the employees of Eilers and Jones. But it is clear the contract was made with the Oil Field Water Company, and for the benefit of the employees of the Oil Field Water Company.
The contract of insurance was made with the employer; the “employer” was designated as the Oil Field Water Company in the “declaration,” and so treated and referred to in the policy itself. If appellant desired to designate “Eilers and Jones” as the employer, it could have done so, but it did not do that, and designated Oil Field Water Company as the employer, issuing its insurance contract for the benefit of, and making its every obligation “primarily” payable to, the employees of the Oil Field Water Company.
Mr. Jones, who was a member of the partnership of Jones & Eilers, testified that the bank account was carried in the name of Oil Field Water Company, and that all checks were signed for the Oil Field Water Company by Mi-. Eilers as president, and further testified: “We were known to outside world as Oil Field Water Company. We were known to the members working for us as Oil Field Water Company. We hired men under the name of Oil Field Water Company. We posted signs on the walls under this Compensa-tioii Act, that the Oil Field Water Company was carrying insurance with the Traders & General Insurance Company. We put that notice there to put the employees on notice that the Oil Field Water Company was carrying compensation with the Traders & General Insurance Company. This was done to meet the requirements of the Compensation Act.” It is further shown by the local agent of the Traders’ & General- Insurance Company that he paid Mr. Ellers as president of the Oil Field Water Company money that had been previously paid for premiums on this insurance, showing that the policy was not canceled until the-day of June, 1033.
To third and fourth issues, the jury found:' “Ernest Emmert on the 6th day of March, 1933, received the injuries while working for the Oil Field Water Company, which result-' ed in his death, and that said injuries were received by him while in the course of his employment with the Oil Field Water Company.” The name of the “employer” may be given as a real or a fictitious name; such *213name is given merely ior the purpose of identifying the beneficiaries, and if it fills that purpose and such beneficiaries are so identified, the real purpose of stating the name of the employer has been accomplished. This for the reason that the insurance is issued for and on behalf of the employees and all obligations run in favor of such employees.
“Defendant’s Specially Requested Issue No. B.
“Gentlemen of the jury:
“Do you find from a preponderance of the evidence that Ernest 0. Emmert, at the time of his injuries sustained from which he died, was an employee of the partnership composed of J. L. Eilers and L. P. Jones, operating under the trade name of Oil Field Water Company? Answer ‘Yes’ or ‘No,’ as you find the facts to be.”
Answer: “Yes.”
Under appellant’s first proposition it contends that the partnership of Eilers & Jones was dissolved by Jones withdrawing from the partnership a short time before the injury and death of,Emmert. However, it is true that Jones continued to own his half interest in the property and in a short time brought suit to foreclose his deed of trust lien on the property and to recover his one-half interest in the same and did recover same. Jones did attempt to séll his half interest in the property on credit, but the purchaser failed to pay for the same and Jones took the property back, as above stated, under a foreclosure proceedings. In fact, title to the property was in Jones at all times and never passed out of him, as shown by the record and found by the jury. This contention of appellant is hereby overruled.
Authorities under the above two propositions do not support the contentions made. New Amsterdam Casualty Co. v. Harrington (Tex. Com. App.) 290 S. W. 726; Euless v. Tomlinson (Tex. Civ. App.) 38 S. W. 534; Anderson-Berney Realty Co. v. Soria (Tex. Sup.) 67 S.W.(2d) 222.
Appellant, Traders’ & General Insurance Company, introduced in evidence the policy of insurance issued by it to the employer, Oil Field Water Company; also certified copy of the “notice that the employer has become a subscriber,” showing the employer to be “Oil Field Water Company,” which was signed by Oil Field Water Company and the Traders’ & General Insurance Company. Appellant having failed to deny the same under oath, said notice was prima facie proof of the facts therein stated. Appellant reported to the accident company that the Oil Field Water Company had become a subscriber; that the policy was effective' December 7, 1932, and expired December 7, 1933. Appellant in said report does not mention the name of any other than the Oil Field Water Company. No mention is made of a copartnership or the name of any persons composing a partnership, and in so far as this record is concerned there is no employer other than the Oil Field Water Company.
In answer to the direct question in said report, it is stated:
“1. Are you insured to provide payment to injured employees under the Employers’ Liability Act? Answer: Yes.
“2. If so insured, give name and address of the insurance company? Answer: Traders & General Insurance Company.”
It seems that Jones never in fact sold out; he merely bargained to sell out, according to his ,own testimony. In this connection he states: “I sold my interest on Feby. 24, 1933 to Gary and Kerr. On June 7,1933, I bought back the interest I sold to Gary and Kerr, they never did pay for it and I just took it ’back." Two leases were made after the death of Mr. Emmert. Mr. Eilers was acting as president and continued to act as suoh until Mr. Emmert was killed.
At this point the court finds from said verdict and the undisputed facts as follows, to wit: “That Oil Field Water Company on the 6th day of March, 1933, was a subscriber to the employers’ liability law or workmen’s compensation act of the State of Texas through and by virtue of a policy of compensation insurance issued and delivered to it by the Traders & General Insurance Company, and said policy of workmen’s compensation insurance on the 6th day of March, 1933, was in full force and effect and that the said Oil Field Water Company on the 6th day of March, 1933, had in its employ more than three employees, one of which was the said Ernest C. Emmert.”
If he (Jones) sold out without the consent of his associates, undoubtedly his act inter sese dissolved the association. However, if he sold with their consent, it merely meant the introduction of new blood into the firm, operating under the same old flag, the same old trade-name, and as to the defendant company’s contract made for and on behalf of the employees, without in the slightest degree affecting the rights which, under the terms of the policy, had become vested as to them.
In the case of Janes Contracting Company v. Home Life & Accident Company (Tex. Civ. *214App.) 245 S. W. 1006, where a similar question was involved, the court held: In this case the policy stipulated that the contracting company would not make, or keep, explosives. This it did, and plaintiff was killed by such explosives. The court held that the covenant not to keep explosives, affected only the rights of the insurance company and the construction company inter sese, and in no wise affected the rights of employees. This case was affirmed by the Supreme Court in the following language (260 S. W. 839, 840): “As between the .representatives of the deceased employee and the insurance company a liability for his death existed, without reference to the relation between the parties litigant [i. e. the insurance company and the contracting company, the employer].” Of similar import is the holding in the case of Sheek v. Texas Company (Tex. Civ. App.) 286 S. W. 336, 338, where it is held: “Considering the policy as a whole, it is not subject to the construction placed upon it by appellant. Appellant relies upon the quoted portion of the schedule of statements. In the first place, they are merely in the nature of contractual warranties on the part of the subscriber in favor of the insurer. They affect only the rights of the subscriber, and insurer inter sese and not the rights of the employees of the subscriber to compensation as provided by the Compensation Act.” To the same effect is the holding in Home Life & Accident Company v. Orchard (Tex. Civ. App.) 227 S. W. 705, and Texas Employers’ Ins. Ass’n v. Price (Tex. Civ. App.) 300 S. W. 667, 669.
The point is again emphasized by the Commission of Appeals in the case of Southern Casualty Co. v. Morgan, 12 S.W.(2d) 200, 201, wherein the court says: “Constitutional basis for the scheme of insurance and transferred liability provided in the Workmen’s Compensation Law consists in agreement (a) of the employer,, (b) the employee, and (c) the insurer.” In the case of Southern Casualty Company v. Morgan (Tex. Civ. App.) 299 S. W. 476, the contention is made by the insurance company that because a city had no power to contract for employer’s liability insurance and the premium was not collectible by suit against the city, the insurance contract was void as to the employee. But the court held contrary thereto. See this case. In affirming this case, 12 S.W.(2d) 200, the Commission of Appeals discussed the question and upheld the decision of the lower court. Lumbermen’s Reciprocal Ass’n v. Henderson (Tex. Com. App.) 15 S.W.(2d) 565.
The insurance company having elected to and voluntarily named and designated the Oil Field Water Company as “employer” and having voluntarily accepted the premium under this arrangement and having voluntarily agreed to carry, the risk in this way, and the employee of said Oil Field Water Company having accepted employment under such arrangement, the insurance company should not now :be heard to plead, as a defense, that such “employer” was some other person than that named in the contract of insurance. The employee was the other party to this tripartite agreement, but had no say in the manner of its execution or its various terms. But when the arrangement was thus made, he accepted employment thereunder, and according to the express provisions of its policy, became and was in fact the real interested party for .whom its benefits accrued and to whom its obligations and promises ran. Being identified and having brought himself within the nomenclature of employee of the Oil Field Water Company, his right of recovery became absolutely incontrovertible.
In my opinion, the judgment of the trial court should be affirmed.