dissenting.
I respectfully dissent for the reason that there is no legal basis for the defendant City of Galveston’s cross-action against a compensation carrier seeking recoupment, and the trial court’s failure to strike this cross-action was error which as a matter of law should be reversible.
*148The conflict of Federal authorities referred to in the majority opinion is upon the question of whether or not a negligent employer can be forced to contribute to a negligent third party in an employee’s suit against the third party where the negligent employer subscribed to workmen’s compensation insurance or its equivalent. I cannot believe that the Supreme Court of the United States will do other than follow the majority rule to the effect that under the circumstances of this case there is no right of contribution, or certainly no more than an offset for compensation paid (depending on the effect given to the employee’s election). The converse nullifies the limitation of liability provided the employer in most workmen’s compensation laws. But irrespective of the United States Supreme Court’s holding on this question, there is no basis for holding that a workmen’s compensation carrier can be held to be a greater liability than that imposed by its policy. This being true, it was plainly error for the trial court to refuse to strike the City's cross-action against the compensation carrier.
The majority opinion in the case at bar cites no case holding that a policy of workmen’s compensation insurance can be turned into a policy of general liability insurance as the City sought to do by its cross-action in this case. The City plead over against the compensation carrier as follows: “That if the plaintiffs * * * suffered the injuries alleged in their petition * * * this defendant, as a substantive right, is entitled to a contribution from its co-defendant TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, as the insurance carrier for the Stevedoring Company, in any amount which plaintiffs may recover against this defendant.” The two plaintiffs and the insurance carrier filed a motion to strike this portion of the City’s pleadings which the trial court should have granted. This is the error complained of here.
This error was calculated to confuse the jury. It was exploited by the defendant City in its argument.
It cannot be determined from the verdict that the jury ignored the City’s pleading and argument, but on the contrary it adopted the City’s version of the facts.
The jury was entitled to believe the City’s pleading that there was an additional legal liability upon Texas Employers’ Insurance Association over and above the compensation already paid. Under the City’s pleading that the insurance company was the *149alter ego of the employer and was liable to contribute to damages over and above compensation already paid, it would not be unreasonable for the jury to become confused and think that they were returning a verdict in favor of the two employee plaintiffs against the compensation carrier in the amount of $6000 for one employee plaintiff and $7500 for the other over and above compensation already paid. In view of the popular readiness to impose liability upon an insurance company, and in view of the jury’s verdict, this admitted error should be held as a matter of law to be prejudicial.
The result of the trial court’s error was an improper injection of insurance — not insurance in the sense of a compensation carrier seeking recoupment, but insurance covering the negligence of the Stevedore Company. This could not fail to damage the cause of the two employee plaintiffs and of the carrier for recoupment. Under these circumstances I cannot agree that the trial court’s error was harmless even though there be no Statement of Facts. I feel that the Court of Civil Appeals’s judgment reversing and remanding for another trial is correct and just and should be affirmed.
Opinion delivered January 16, 1952.
Motion for rehearing overruled April 2, 1952.