On Rehearing.
It is urged by appellants that there was error in the original opinion of this court (1) in the conclusion of' fact that Walter Edwards was hired in Texas, and (2) that section 19 of article 8306 of the Workmen’s Compensation Law of Texas had application to the situation in this ease.
The jury finding that the place Walter Edwards was hired was in Texas, we assumed *1014to be warranted by the evidence. After careful review of the evidence, though, we think that fact cannot be sustained, for the only conclusion warranted is that the place of employment of Walter Edwards was in Miller county, Ark. He was hired in Miller county, Ark., to work upon the roadway there in the course of construction, and as a part of the contract of employment was to 'be transported to and from the place of work on the roadway in Miller county, Ark., to his residence in Texarkana, Tex. The facts show an injury in the course of employment as Walter Edwards was killed in Miller county, Ark., while being transported to his lodging in Texarkana, Tex. The appellants, a partnership, were not conducting their business exclusively in Miller county, Ark., for they maintained their office and principal place of business in Texarkana, Tex. The injury in suit was referable to and an incident of the general contracting business of appellants, although the proximate cause of the injury was the act of negligent operation of the truck by the truck driver, a fellow servant of the injured employee. The appellants, in fact, were amenable to the Texas Workmen’s Compensation Law, although they were non-subscribers at the time of the injury. All such situation as stated above is, as we now conclude, shown by the evidence.
In the original opinion we concluded that, although the plaintiff was legally precluded of recovery under the laws of Arkansas, the place where the injury occurred, because the injury was solely caused by the act of a fellow servant, yet, in the situation shown,|she would be entitled to recover under the provisions of section 19 of article 8306 of the Workmen’s Compensation Law of Texas which would ⅛⅞ applicable and govern, because the appellants were shown to be amenable to the Compensation Law, although they were nonsubscribers.' After more mature deliberation .it is cohcluded that there was error in the original ruling so far as determining that liability could be enforced under the provisions of section 19 of article 8306 in an action for damages brought by the beneficiary of an employee of a nonsubscriber of the Workmen’s Compensation Law. It is believed that^this provision of the Workmen’s Compensation Law should be construed as applicable only where the employer of an employee has elected to accept the act and take out the policy of .insurance, and not where the employer of an employee is a non-subscriber^ The act by its provisions is elective and not mandatory, and neither the employer nor the employee are bound by the provisions of the act unless they have both elected to come within and be bound by it3 provisions. Subdivision 4 of section 1, § 3a r section 4, of article 8306; Holland v. Stuckey (Tex. Civ. App.) 2S2 S. W. 951. Where both the employer and the employee have elected to come within and be bound by the provisions of the act, then, in seeking redress under it, the action for compensation for the injury or death must be brought pursuant to and in accordance with its terms and provisions. The provisions of the act then become a part of the contract of employment and enforceable between the parties as such. But if the employer elects not to be bound by the act, and not to come within its terms and provisions, then he is not in any wise subject to any of its terms or provisions with the-one exception, namely, that he forfeits his right to interpose in a suit in the courts for damages for negligence the common-law defenses of contributory negligence, fellow servants, and assumed risk. The injured employee or his beneficiary of a nonsubscriber to the act is expressly referred to the courts for redress by an action at law for damages for negligence which is governed in all respects by the rules and principles of law applicable to such actions, except alone as respects the denied common-law defenses mentioned. '^Section 4 of article 8306 expressly restricts employees or their beneficiaries of nonsubscribers to a common law or a statutory suit in the courts “for all damages by reason of personal injury or death,” and declares they “can not participate in the benefits of said insurance association.” In all the reported cases where liability was enforced under provisions similar to section 19, art. 8306, the claim was for compensation under compensation acts and not damages in suits for negligence, and the employers were subscribers to the Compensation Act or with policies of insurance under it. We find no-case that has so dealt with a nonsubscribing: employer.
In view of the ruling above, the former ruling affirming the judgment will have-to be set aside and judgment be here now entered reversing the judgment of the trial court and here rendering judgment in favor ■of the appellants. In the absence of contract otherwise providing, actions based upon negligence arising outside of. the state can only be determined by the law of the state or place of injury. Under the law of Arkansas, where the death and the negligence causing' it occurred, the appellee would be legally precluded of recovery in the facts because of the application of the common-law doctrine of fellow servant. The death was caused solely by the act of negligent operation of the truck by the truck driver, a fellow servant under the laws of Arkansas.