(after stating the case as above).
There is presented for decision on appeal the points that in the circumstances (1) the appellants were not amenable to the Workmen’s Compensation Law of Texas, and (2) the action was a cause of action governed and controlled exclusively by the laws of the state of Arkansas, which are so dissimilar to the laws of Texas that the courts of this state cannot entertain jurisdiction to try the same, and (3) the negligence of the truck driver, as found by the jury, were acts of a fellow servant, which was a defense under the laws of Arkansas, and (4) assumed risk was applicable, which doctrine was in force in the state of Arkansas.
The important question first to determine is that of whether or not the provisions of the Workmen’s Compensation Law of this state have application to the situation shown in the evidence. Eor, if we are to determine that the provisions of the Compensation Law, have not application, and the employer was not amenable thereto, then, it is thought that the plaintiff would likewise be precluded from recovery as respects her action for wrongful death based on the Arkansas statute. The jury made the affirmative finding that the death of the plaintiff’s husband was caused solely through the fault of the truck driver in the manner of operating the truck. Under the law of Arkansas, as proven, the common-law rule of fellow servant is in force as respects an individual or partnership employer of labor.’ As held by the courts of that state, in a state of facts similar to the present case, a truck driver transporting other employees in the course of employment is a fellow Servant for whose negligent acts the employer does not become legally responsible. Walsh v. Eubanks, 183 Ark. 34, 34 S.W.(2d) 762; Parham v. Parker, 183 Ark. 673, 37 S.W.(2d) 879.
The Workmen’s Compensation Law provides that: “In all cases of injury resulting in death, where such injury was sustained in the course of employment, cause of action shall survive.” Section 16, art. 8306 (Rev. St.). The facts show an injury in the course of employment-^within - the- meaning of- the law. The employee was killed ¾ Miiler county, Ark., while being transported to his lodging in Texarkana, Tex., from his place of work in Miller county, Ark., as a part of the contract of employment. The relation of employer and employee would nevertheless exist during the transportation of the employee. Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S. W. 76; Jones v. Casualty Reciprocal Exchange (Tex. Civ. App.) 250 S. W. 1073. And it is further provided in section 19 of article 8306 that: “If an employee who has been hired in this State sustained injury in the course of his employment he shall be entitled to compensation according to the law of this State, even though such injury was received outside of the State.” It is apparent thaft the provision was not intended to extend the cSffipensation law to include an injury occurring without this state which was not referable or incident to service in the industry or business which the employer conducted or pursued in whole or, in part in the territorial limits of this state. The statute could legally have no such extra-territorial effect,,! The language of the section makes it clear of purpose, it is believed, to have the Compensation Law by its terms fix the rights of the parties to a contract of hiring, and enjoin the payment of compensation for injuries received by the employee occurring without this state. In the absence of such provision, the Compensation Law would apply to injury occurring within the state only. And \the aim was to write into the contract of hiring the additional terms of compensation for injury which might be “received outside of this State.” It was intended by the provision to provide that the contract of hiring, made by an employer engaged in business, localized or partly carried on in' Texas, should have the legal effect of including injuries received without this state in case such injury be referable or incident to service in the conduct of the business. A statute
Employment under the Compensation Act may be treated as contracts of hiring, to be interpreted and enforced as all other contracts, and as binding upon the parties for injuries or death sustained in any place to which such contracts of hiring extend the rights of the parties. And where, under Compensation Acts, as "in this state, a contract of hiring is entered into, it would be presumed that such contract was entered into with reference to section 19 and as an integral part thereof, binding the parties, and. enforceable the same as any other, contract. In this view may the appellants be held amenable to the Workmen’s Compensation Act in the situation shown in the evidence? In the evidence, the facts, which, we must take as established, are substantially these: The ap-pellee’s husband was a resident of Texarkana, Tex. He was employed by áppellants, .a partnership- doing work through contract upon public highways generally in the area of Arkansas, Oklahoma, and portions of Texas and Louisiana, as such work might be open and secured in such places. He was hired by appellants at their office in Tex-arkana, Tex., to do labor upon the road in.. Miller county, Ark., upon which appellants were doing contract work. As a pant of the contract of hiring he was to be transported from his home in Texarkana, Tex., to his work in Miller county, Ark. Appellants were not transient contractors with no domicile or place of business except in the locality of the particular contract then being performed. The circumstances are too definite to warrant the conclusion of pure fact that the appellants did not have nor intend to have and at all times use Texarkana, Tex., as their office and principal place of conducting their business. That was their place of business and used as such. One of the appellants, presumably the managing partner, bodily resided there. A warehouse for keeping supplies and tools of the business, and an office for the work of the business, were owned and maintained there. They transacted their banking business there. They used the locality as the place of convenience from which to “radiate from” or operate in the several states adjoining. They localized their business there as far as circumstances and conditions permitted. They maintained no office or branch office in Miller county, Ark. The legal effect of such facts would, be to constitute appellants an inhabitant of this state within the purview of the venue statute. Pecos & N. T. Rwy. Co. v. Thompson, 106 Tex. 456, 167 S. W. 801. They would not be within the description of a “transient person,” continually on the move from the respective states mentioned, in pursuit of business. And, likewise, the facts go to support the cónclüsion that the principal place of business of appellant was in Texarkana, Tex.1, and they were not conducting their business exclusively in Miller county, Ark., and that the contract of employment was made in Tex-arkana, Tex., and had a direct connection with the business conducted in Texarkana,' Tex., and the injury was referable to or an incident of the business. In such situation, the contract of hiring having been entered into in this state, section 19, art. 8306, would be read into the contract as an integral part thereof, and the case.would stand precisely as if it had been expressly contracted that for an injury suffered outside* of the state in the service of the business or employment the compensation due. should- be determined by the Compensation Laws of the place of contract. The liability in the case would therefore be enforced under the law of and at the place the contract of hiring is entered into,-and not under the law at the place of the performance. Pierce v. Beckins Van & Storage Co., 185 Iowa, 1246, 172 N. W. 191; Bement Oil Corp. v. Cubbison, 84 Ind. App. 22, 149 N. E. 919; and other cases. It is believed that the appellants were subject to the Compensation Law of Texas, and that its provisions were applicable to the present case. Home Life & Accident Ins. Co. v. Orchard (Tex. Civ. App.) 227 S. W. 705; Texas Employers’ Ins. Ass’n v. Price (Tex. Civ. App.) 300 S. W. 667; Id. (Tex. Com. App.) 296 S. W. 284; Norwich Union Indemnity Co. v. Wilson (Tex. Civ. App.) 43 S.W.(2d) 473; Ginsburg v. Byers, 171 Minn. 366, 214 N. W. 55; Hall v. Industrial Commission, 77 Colo. 338, 235 P. 1073; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N. W. 615. The factual element of having taken out insurance under the Compensation Law would not operate to distinguish some of the cases from the present one. The taking out insurance would only operate to show that the employer has elected to come under the terms of the law. The test is that of whether or not there has been a contract of hiring, and, if so, then the law presumes that the parties have accepted the provisions of section 19, art. 8306, and have agreed to be bound'thereby.
We have considered e'ach assignment of error presented and have concluded that'they should be overruled as not warranting a reversal of the judgment.
The judgment is affirmed.