(dissenting-) •
With deference I think the judgment should be reversed.
The evidence is undisputed. Boiled down it -amounts to this. Plaintiff was employed in the meat department o-f the company which had seven or eight other employees besides plaintiff. Her job was to work at the meat counter and at the end of the day to tidy up, while on Saturday she and any other similarly employed were supposed to wash down the walls. In order to do this, what were called the meat blocks or tables would have to be, not lifted up but slid or pulled out from the wall. She had been employed for some time and had for some time done without any injury the-things that she was doing when her injury was received. The injury occurred when in stooping to catch hold of a meat block or t-able to slide or move it, she made-a movement which resulted in a wrench or strain in her back. The negligence claimed is that the company failed to furnish help to assist her in pulling the block out from, the wall. It is undisputed that nobody ordered her to pull the block alone and without assistance, and that nobody told her that she couldn’t have help. It is also-undisputed that nobody told her to ask for help. There were seven or eight more people around at the time she moved the block, upon whom she could have called but didn’t. She testified that once, some time before, when she was not feeling well she had called on one of the men who *571Ihelped her with one of the blocks, but wouldn’t help her with any others, so she decided not to call on anybody. She never complained to the management or anybody about this, nor did she ever ask that help be ssigned. She testified that in the beginning a woman was working with her and they had pulled the block out together, that sometimes one of the boys helped her, and that sometimes she did it by herself.
On this evidence it is my considered ■opinion that there was no issue of negli.gence to go to the jury.
The appellant concedes that it can not defend on the ground that she was guilty of contributory negligence or of having assumed the risk. It insists, however, that the simple facts above stated do not show that the defendant was guilty of any negligence. In support of its claim, the defendant cites several cases, including two from Texas, Jackson v. Marshall, Tex.Civ.App., 243 S.W.2d 205, and Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977.
These opinions are, I think, well considered and well decided, especially the Western Union opinion by the Supreme Court. They consider and discuss the very question presented here under a statute the same as that in Florida where the employer had failed to comply with the Workmen’s ‘Compensation Act and the employee had sought to support his suit by the claim, that what defendant claimed was an absence of negligence was really matter in support of defenses, contributory negligence and assumed risk, which had been cut off by statute. The opinions point out clearly and correctly, I think, why this is not so.
It seems clear to me that if the evidence here makes a case, then when anyone makes an awkward movement and injures himself, the matter is merely sent to the jury with the inquiry in effect, “Do you or do you not want to find for plaintiff?”
The appellee seems to think that the Florida cases of McGee v. C. Ed. De Brauwere & Co., 117 Fla. 859, 162 So. 510, and Tull v. Kansas City Southern, R. Co., Mo. App., 216 S.W. 572, are cases in point. I do not think so. Their facts are entirely different. In both of these the plaintiffs had been ordered to do heavy lifting, and, in addition, there were not plenty of persons standing around upon whom they could have called.
If the employer was negligent under the facts shown in this case, I can’t see how there could be any case in which an uninsured employer could escape liability to an employee if the jury wished to declare him liable.
With deference, it seems to me that, under the theory applied below and sustained here, the judge must, in every case against an uninsured employer, abdicate his function to determine whether, according' to right reason, there was any evidence to take a case to the jury. He must submit every case of claimed injury for the jury’s determination just as though it were a workmen’s compensation suit, the only real issue being whether the injury arose out of, and was incurred in the course of, the employment, and the jury thought he ought to recover.
I respectfully dissent from the affirmance.
Rehearing denied; HUTCHESON, Chief Judge, dissenting.