The question at issue may be said to be: Had Gallagher been hired in this state within the meaning of R.S. 1925, art. 8306, § 19, as amended, Vernon's Ann.Civ.St. art. 8306, § 19? The pertinent language of the statute is "an employee, who has been hired in this State." The literal import of the language would appear to be that it refers to the place where the contract of hiring is made, thereby rendering the statute applicable if the place of making such contract was in Texas. But to give the language that construction would have the effect of making an arbitrary distinction between employees equally deserving of protection. Employers, particularly those near state boundary lines, wishing to avoid the provisions of the statute, could do so by the simple device of crossing over the line with applicants for employment and there making the contract. If an employer wrote to one in a distant state proposing a contract of hire which was accepted by letter, the contract would no doubt be consummated in *Page 457 the foreign state and therefore not made in Texas. Other examples might be given to show how, without any reason to be found in the purposes of the workmen's compensation statutes, a harsh discrimination would result. A mere circumstance having no relation to the purposes of the act would have the effect of determining that some employees would come within the provisions of this statute while others would not. If the statute be susceptible to another construction not doing violence to its terms and yet avoiding such discrimination while effecting the general purposes of the law, such construction undoubtedly should be favored as expressing the legislative intention.
It is believed that the reference to a person as one "who has been hired in this state" may have regard to the service rather than the contract under which the service is performed. The statutory definition of "employee" very forcefully suggests that such is the meaning intended. "`Employee,'" says the statute, "shall mean every person in the service of another under any contract of hire." R.S. 1925, art. 8309, § 1. (There is more to the definition, but not material to the present study.) Clearly that definition makes a distinction between the "service" and the "contract of hire." Without the "service," although there be a contract of hire, the relation of employer and employee cannot exist under the express terms of the definition. The same is true of service without a contract of hire. It requires both service and a contract of hire to make an employee. The statute in question would seem to be susceptible to the construction that it applies to any one performing services (within the provisions of the workmen's compensation statutes) in this state, under a contract of hire (wherever made). Such a construction would appear to be in harmony with all other provisions of the compensation statutes and would work no such unreasonable hardship upon insurance carriers as would result from the construction of the statute given in the majority opinion, as will be noticed later.
Under this view, the question at issue may be said to be: Did Gallagher, the employee, under the contract of hiring perform any part of the services of his employment in this state before the time of his injury in New Mexico? The undisputed evidence leaves no uncertainty in the answer to that question. The evidence shows conclusively that the first service Gallagher performed under the contract of hire, made in Texas the day before, was at the well situated in the state of New Mexico. It is thought that a fair test of the applicability of the statute under consideration, and one which will give to employe the very maximum of rights which a liberal but fair construction of the statute may permit, would be whether there was any instant of time when, in this state, the employee, if injured, would have been protected, before his transfer to the foreign state for the continuation of services there under the same employment.
Some of the decisions seem to attach more or less importance to the fact of whether the work in the foreign state be of a permanent or temporary nature. That is believed to be important only, if at all, in determining whether the services in the other state constituted a continuation of an employment begun in Texas. Suppose an employer of one doing services in Texas, and while the relationship of employer and employee still exists, advises the employee that in a few days he will have no more work in Texas but can use his services indefinitely in a foreign state, and the employee, with no loss of his status as such, continues his services in such other state and is injured at the end of, say, eleven months. Can there be any doubt that he would have the option declared by the statute to claim compensation as an employee in this state? It is respectfully submitted that there is no suggestion in the statute of any limitation or qualification of such right as to the nature or time of employment save the twelve months limitation. So far as anything in the statute appears to the contrary, the protection of an employee performing services in Texas under a contract of hire is extended to services of the same employee for the same employer in another state for a period of twelve months very much analogous to the protection as security of a chattel mortgage upon property moved out of a county where the mortgage is registered, without consent of the mortgagee, for a period of three months. It would seem to be wholly immaterial that the employee may never have contemplated the performance of further services in Texas.
It is important to bear in mind that the relation of employer and employee is not necessarily conterminous with the contract of hire, which, with service thereunder, *Page 458 constitutes such relation. The service may or may not begin with the contract of hire and may end before the contract ends. A, today, may contract with B for services to be performed tomorrow or next week. Under the definition of employee the status of B as employee does not arise until tomorrow or next week, and not even then unless he then begins his service. When the relation does come into existence, if it be in Texas, then a continuance of services under the same relationship in another state, under the same or a different contract of hire, will not operate for twelve months to deny the employee the same protection as if he had continued in Texas the services begun in Texas. Continuous employment may exist under different contracts of hire. It being humanly impossible for any one to perform services with no cessation, temporary and reasonable periods of cessation without intent to sever the relation of employer and employee does not have such effect. The nature of the services is not important, except, of course, it must involve an employment within the protection of the statute. Hence, by change of contract the character of the services may be changed without affecting the continuity of the employer-employee relationship.
Under this construction of the statute, in question, no importance can be attached to the fact that it may have been contemplated that after a period of service begun in New Mexico Gallagher was to be transferred for further employment in Texas. We may dismiss as unimportant the fact that there was no binding contract shown that Gallagher, after the work in New Mexico, was to have work on the Pecos well in Texas. There is little room to doubt that if the greatest possible effect be given the evidence in favor of Gallagher, his employer could have terminated the employment at any time without liability. But even if there was a contract which, had the employer discharged the employee before he ever performed any services in Texas, would have given rise to a cause of action for damages, it would be nonetheless true that the employer-employee relation would have ceased before any services were ever performed under the contract of hire in Texas. All such service would have begun and ended in the state of New Mexico.
If this construction of the statute be not correct and it be conceded, as it is, that the mere situs of the contract of hire is immaterial, what is the fact, or what are the facts, determinative of the applicability of the statute to an employee injured in another state? Is it the place of residence of the employee? At least two good reasons suggest themselves why that should not be the test. First, there is nothing in the statute to warrant such construction. It would be a case of reading something into the statute not even remotely suggested by the terms of the statute. Secondly, the same arbitrary discrimination before noticed as between employees equally deserving of protection would result. It may be assumed that all along the state boundaries common to other states, laborers who are residents of the other states have regular employment in this state. If that employment carries them into another state and they are there injured, why should not they have the same protection as an employee who differs from them only in the circumstance that he happens to be a resident of Texas? While on their jobs in Texas they have the same protection as residents of the state. Why make a distinction when they are injured in the same employment outside of the state? The terms of the statute do not require such interpretation, and the one already suggested is far more reasonable and consonant with the purposes of the law.
Is the test previous employment in this state by other employers? The majority opinion seems to give some effect to the fact that Gallagher had previously been employed by others in this state. It was shown that some of Gallagher's fellow workmen on the well in New Mexico were residents of New Mexico. Suppose just previously they had worked for another employer in Texas. Would that have brought them within the provision of the statute in question? In the contract by which Gallagher was hired, let us suppose there had been no mention or discussion of prospective further work in Texas and that previously, although a resident of the state, Gallagher had had no employment in which, for accidental injuries, the law provides for compensation. Then it would seem that he, as a resident citizen, would have no protection against the injuries received in the other state, but the citizen of such other state would have, because he had previously worked at a particular kind of employment for another employer in Texas. It is wholly unreasonable, it would seem, to ascribe to the Legislature any such intention. *Page 459
Now let us examine a little further the theory that Gallagher came within the provisions of the statute because when the contract of hiring was made it was contemplated that the work in New Mexico was to be temporary and thereafter he was to be longer or more steadily employed in similar work in Texas. Would both parties have to contemplate the same thing? Would the contemplation of a particular one or either be sufficient? How would the subject matter of what was contemplated be required to be evidenced — by the terms of the contract or by what both or either party had to say about it after a controversy arose? If by the terms of the contract, would it have to be an enforcible contract as to executory provisions thereof? If so, it would appear that few laborer's contracts would be enforcible.
It should be borne in mind that the employee is not, strictly speaking, a party to the contract of insurance. His rights in the contract arise by operation of the principle that a contract by two parties for the benefit of a third party may be enforced by the latter. It is elementary that the third person must take the contract as it is. No intention of his can have the effect to enlarge his rights or add to the obligations of the contracting parties. Neither, it is believed, could any mere intention of the third party and one, only, of the contracting parties have such effect. Is it reasonable that the obligations of the insurer are to be controlled by a mere matter of what may be contemplated between the other party to the contract and a third person? If so, it is believed that such an element of variableness and uncertainty regarding the risk insured against would result as of itself to condemn such a construction of the statute. If the statute be so construed as that its provisions will apply to services having their inception in other states where it is contemplated that afterward services are to be performed within the state, it would be impossible for an insurance carrier ever to determine adequate rates in advance or with any degree of safety. A Texas employer having employees all over the United States could render his Texas insurance carrier liable for accidents all over the United States simply upon proof that it was contemplated by the employer and employees that such foreign service was to be succeeded by more permanent service in Texas.
These considerations would seem to require a construction making the statute applicable only as to services begun in Texas and not applicable where the first services of an employee are begun in another state, and no part of which are ever performed within this state. This is believed to be in perfect accord with the decision in Texas Employers' Ins. Ass'n v. Volek, Tex.Com.App., 69 S.W.2d 33.