Supreme Court of Texas.

BARRON

v.

STANDARD ACC. INS. CO.

Motion No. 10325.

|

Oct. 26, 1932.

Attorneys & Firms

*180 **769 H. E. Wassell, of Wink, Frant Lane, of Brackettville, and Black & Graves, of Austin, for plaintiff in error.

**770 Jones & Lyles, of Del Rio, and Cole, cole, Patterson & Kemper, of Houston, for defendant in error.

Opinion

PER CURIAM.

This court denied an application for writ of error to review the opinion rendered in this cause by the honorable Court of Civil Appeals for the Fourth Supreme Judicial District. 47 S.W.(2d) 380. A motion for rehearing of the application for writ of error is now pending before us. The construction of the Workmen’s Compensation Act, title 130, art. 8306, et seq., Revised Civil Statutes, as amended, is involved. The record shows that the employer operated two plants, one a stone quarry situated in Kinney county, something like 400 miles distant from a stone cutting and polishing plant situated at Houston. The bond or policy sued on was intended by the parties thereto to cover employees in the Houston plant only. By the terms of the bond or policy, quarrying of stone was expressly excluded. The premium paid by the employer for the bond or policy was based upon the pay roll of the employees at the Houston plant, and did not include consideration of the pay roll of the employees at the quarry in Kinney county. The amount of the premium paid for the bond was $322.80, and, if the pay roll of the employees at the quarry and the hazard incident thereto had been used as a basis, it would have increased the premiums to the extent of $433.

*181 The rule is well established that employers of labor operating under the Workmen’s Compensation Act cannot cover part of their employees and leave part of them uncovered, where such employees are engaged in the same general business or enterprise, and a policy issued thereon will cover all employees in such business. Case of Cox, 225 Mass. 220, 114 N. E. 281; Reports Opinions of Attorney General 1916-1918, p. 321.

Likewise, it is equally well settled that, where an employer conducts two separate and distinct kinds of business, each business involving different risks, pay rolls, and requiring a different premium for compensation insurance, he may elect to insure a class of employees in one business and not insure a class of employees in the other business. Therefore a policy issued to cover a class of employees in one business, as was done here, which expressly excludes the class of employees in a different and distinct business, will not be construed to cover employees in both businesses, and a recovery cannot be had under the policy by an employee not covered by the policy. Nothing in the Workmen’s Compensation Act prohibits this construction. U. S. Fidelity & Guaranty Co. v. Bullard Gin & Mill Co. (Tex. Civ. App.) 245 S. W. 720; Employers’ Indemnity Corporation v. Felter (Tex. Civ. App.) 264 S. W. 137; Interstate Casualty Co. v. Martin (Tex. Civ. App.) 234 S. W. 710; American Employers’ Ins. Co. v. Hookfin (Tex. Civ. App.) 33 S.W.(2d) 801 (Writ denied); U. S., etc., Co. v. Taylor, 132 Md. 511, 104 A. 171; Hungerford v. Bonn, 183 App Div. 818, 171 N. Y. S. 280; Bayer v. Bayer, 191 Mich. 423, 158 N. W. 109; New Amsterdam Casualty Co. v. Industrial Commission, 80 Okl. 7, 193 P. 974; Cambria Coal Mining Co. v. Travelers’ Indemnity Co., 144 Tenn. 469, 234 S. W. 323; Maryland Casualty Co. v. Industrial Commission, 178 Cal. 491, 173 P. 993; Milliron v. Dittman, 180 Cal. 443, 181 P. 779; Youngquist v. L. J. Droese Co., 167 Wis. 458, 167 N. W. 736; Indiana & Ohio Live Stock Insurance Co. v. Krenek (Tex. Civ. App.) 144 S. W. 1181; Norris v. China Traders’ Ins. Co., 52 Wash. 554, 100 P. 1025; Western Indemnity Co. v. Industrial Accident Commission, 43 Cal. App. 487, 185 P. 306; Elder v. Federal Ins. Co., 213 Mass. 389, 100 N. E. 655; Orient Ins. Co. v. Van Zant-Bruce Drug Co., 50 Okl. 558, 151 P. 323; Hartigan et al. v. Casualty Co. of America, 227 N. Y. 175, 124 N. E. 789: Royal Indemnity Co. v. Schwartz (Tex. Civ. App.) 172 S. W. 581; Fidelity & Casualty Co. v. Palmer Hotel Co., 179 Ky. 518, 200 S. W. 923, L. R. A. 1918C, 808; Mannheim Ins. Co. v. Charles Clarke & Co. (Tex. Civ. App.) 157 S. W. 291; Huntley v. Providence Washington Ins. Co., 77 App. Div. 196, 79 N. Y. S. 35; *182 Harris v. St. Paul Fire & Marine Ins. Co. (Sup.) 126 N. Y. S. 118; Langworthy v. Oswego & O. Ins. Co., 85 N. Y. 632; State v. Chicago, M. & P. S. R. Co., 80 Wash. 435, 141 P. 897.

Rehearing upon application for writ of error is overruled.