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At a Glance:
Boswell v. City of Sweetwater
January 13, 1961
341 S.W.2d 664
Published Opinion

Boswell v. City of Sweetwater

Court of Civil Appeals of Texas, Eastland.

J. W. BOSWELL, Appellant,



No. 3595.


Nov. 23, 1960.


Rehearing Denied Jan. 13, 1961.

Attorneys & Firms

*664 Carl M. Anderson, Clyde Boose, Sweet-Water, for appellant.

*665 Beall, Nunn & Griggs, Sweetwater, for appellee.


COLLINGS, Justice.

J. W. Boswell brought suit against the city of Sweetwater for damages. He alleged that he was an employee of the defendant city in its water department, and that while engaged in the course of his employment he sustained accidental injuries; that this injuries were serious and disabling, resulting in his total incapacity for a period greatly in excess of one week, causing him to be in the hospital for more than sixty days. Plaintiff alleged certain acts of negligence on the part of the city proximately causing his injuries and damages. The defendant answering alleging that the plaintiff was guilty of contributory negligence proximately causing his injuries. The case was tried before a jury which found that plaintiff’s injuries were proximately caused by defendant’s negligence. The jury also found that plaintiff was guilty of contributory negligence proximately causing his injuries and that he had assumed the risk of his job. Based upon the findings of contributory negligence and assumed risk, the court entered judgment for the defendant City of Sweetwater. Plaintiff Boswell has appealed.

The cause is before this court on an agreed statement of facts. It is stipulated that the only question involved in the appeal is whether or not the defenses of contributory negligence and assumed risk were available to appellee City of Sweetwater, or whether the city was precluded from urging same under Article 8309e, Vernon’s Ann.Texas Civ.St. because of the admitted failure of the city to either provide workmen’s compensation insurance for its employees or to become a self insurer. Appellant contends that such defenses were not available to the city, that the court erred in holding the findings that he was guilty of contributory negligence proximately causing his injuries and that he assumed the risk of his job entitled the city to judgment, and erred in entering judgment for the city.

The original Workmen’s Compensation Act of Texas is found in Articles 8306–8309, V.T.C.S. The portion of the original act which we are here principally concerned with is Section 1 of Article 8306.

It was held by our Supreme Court that the provisions of the Workmen’s Compensation Act were not applicable to cities; that by reason of City of Tyler v. Texas Employers Insurance Ass’n, Tex.Com.App., 288 S.W. 409.

In 1952 an amendment to the Constitution of this state was adopted, being Article III, Section 61, which granted the legislature power to enact law as may be necessary to enable all cities, towns and villages of this state to provide for workmen’s compensation insurance, including the right to provide its own insurance risk, for all city, town and village employees as in its judgment is necessary.

*666 Following the constitutional amendment in 1952 our legislature in 1953 enacted Article 8309e which provided:

‘Sec. 3. Cities, towns and villages are hereby authorized to become either self-insurers or provide insurance under workmen’s compensation insurance contracts or policies, extending workmen’s compensation benefits to their employees. The provisions of this Act authorizing cities, towns and villages to provide workmen’s compensation benefits or to take out workmen’s compensation insurance is permissive only and the provision hereof with respect to either self-insurance or insurance under a policy of insurance is not mandatory.’

Article III, Section 61, of the Constitution and of Section 3 of Article 8309e to hold that the failure of municipalities to participate in workmen’s compensation insurance or in self-insurance for the benefit of its employees would destroy their common law defenses.

Section 1, the insurance carrier is denied the right of urging the named common law defenses. The section is not applicable when the suit is for damages against a municipality which has elected not be carry workmen’s compensation insurance. On the contrary, it would be inconsistent with Section 6 of Article 8309e to hold in such a case that the common law defenses of municipalities are abrogated.

Section 6 of Article 8309e, while adopting certain portions of Section 4 of Article 8306 *667 was not adopted as a part of Article 8309e shows clearly that the legislature did not intend that municipalities who elected not to become a self-insurer of subscriber under that act should be deprived of their common law defenses.

The judgment of the trial court is affirmed.

End of Document