Untitled Texas Attorney General Opinion ( 1944 )

’ .
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
nimble 0:P. Lool&art,&alma
ord of Insulwloe ColmleslQnem
still,Texar
3r sir:
and aooiaent
please crdviaeme vhether ouch an
an inaurunoe oontraat~'
The exoe~ts froisthe contract rsfemed to end vhlab
enclose ere es Pollws:
"ARTICTB XI
"(Aooident aud Sialmese Benefita)
YSeotlon 1. Effective a8 of tho date of this
agreement nn employee who haa thereafter oompleted
F’
I1 H0h 0. P. Lockhart, Page 2
sFt months 0r oontlnuous~aomioe shall be lntttlad
to nlok leave benefit8 in aooordanoetith the fol-
lovlng tsoheduler
upon Colsplotlonof contl.nuoua
Smvioe ofr RariioumBenefits AUwed~
9l.x months to three yedira Four veoka
Three yeax.93 Five veokt-
Four years six voeks
Five years Seven vooka
six yearn Eight veeks
Seven years Iiinevoeks
Eight yews 'Tenveaks
Nine year5 Eleven woaka
Ten yorws or mars Twelve vaeks
"Yection 2. Exoeptlon?J:
(a) An etiployeoshall not be ehtltled to aiak leave
benefits under this Article if his Illnes? QF injury
ven due tor
(1) zotg;ful intention to injure hlmaalf or
2 Venereal dlaeaso
3 Intoxication
4 Uae of habit fomlng drugs 0
II Mllloonduot
5
(b) An aqloyoe shall not be entitled to sick leave
benefit8 under this Artlole ?f an Ill~as or aooldent
ooow?s vhiler
1 The employee 1s on leave of ebeenoe
2 The employee la abaett due to 8 lap.orr
3 AA employee 18 on a suepension
II
"ARTICLEXI
S3?iknessBenefits)
"gec~~ou ycciaent and
Computation of Benefits8
The omount’of weekly sick leave benefit shall
be oomputed by multlplylng the enployoe'er eatab-
llshed straight time hourly rate of pay time8 tha
number of hours in the employcotsestablishedwork
week. Fraotlons of the work vo8k shall be coq@utod
on the basis that the nunbor of days of siok leave
Hon. 0. P. Lockhart, Page 3
benefit be&s to the number of days In the employeo'r
establishedwork veek times the amount determined
above. Slak leave benefits shall be paid in occotd*
anoe with the establishedpay periods.
*Seation 4. Rvery eligible employoo vho 1s
absent from duty on aooount of sickness or injury
shall immediately notify the IndustrialRelation3
Department, and the employee ulli not reoaive bene-
fits as,provldedln this plan for the the lost pre-
vious to suoh notioe.
"Section 5. Llmltation3
(a) par the first three 3ohoduled wo;rkir;jdays
after proper notice has been given Ln aoccdsnos
vtlthSection 4 of'thts Artlole, there shall be no
sick benefit gold unless the olckne3s extends Lnto
the fourth scheduled working day, in vhich aose pey-
ment shall !.ncludethe first three scheduled vorklng
days.
(b) Ao employee vi11 be entitled to benefits during
any annivervaryyear greater th3n the total number
of week3 ahovn by the schedule in Section I. Unused
benefit3 during any annlveroary year m2y not be oar-
ried over from one year to another.
(c) If an employee entitled to benefit3 ~23provided
in this Article is abecnt 83 a result.of an occupa-
tional llln83s or un lndustriol accident 011 the sick
benefit provLslon3 in thla artiole vlil opply. Pro-
vided, hovever, t&it the Company shall be credited
with the coqmsstion insurance paymnt to nn employee
subject to this Artiole in diach3rging the Comp&iny~o
obligation to on employee under this Article.
(d) If 3ny law La orm!ctedthat piovlde3 for any
or a11 of the benefits covered by this Article, then
the Compn~- shall be credited,with tileamsuzt of such
benefLt,sin discharging the Compoxiy'3obiQ:&tiw to
an czployea a3 provldcd for Ln thi.311r~iclc.
__--. --.
:'gan. 0.~P. LOOldmrt, Page 4
:
!. “seaticm6. RoooMa
*~a the agpllaation of thl8 Article, the rwavds
of'the Cf2zago4ahall be OcuaclUslve in UetenaL~ the
ecrpl~yeo*s l,eqth of servloe, aalory# wages and amomt
or benefita to whloh he lo entitled.
=900t1on7. Caaoolletl~ of BezU5ritrr
%n 6t~loyes shell lose all btumfita provided
by t&la Artlole for the follovlng cesByozuiB
ReJlpp
Dlsohar@d for 08~86
Acae t4 other emgloymmt during a leave of
Pexcept aa expreasPf apprcwed by the Compeny).
overetdys his leave of abeonco
Absent ulthout 18nYe for three oomeautlm work-
(?j %%qj beCA bl~id Off OKid hsY~hexsf3fter beOA
oftered en@ognent by the Compmy d ot13 or by notioe
to the mloa, and he does not vithLn five (5) vorld~g
days thereafter give notloe of eooeptance of such im-
ploymnt, mid WithiA enotber five (5) worldAg daya
after giving such notice faila to appear a$ the Plent
reedy far vorlc.
(g) Is laid off for oraehundred elghty~ (180) oelerrdm
Ia off duty for one oalmdar year or more due to
AOA-OOOU~tlonnl Ok&W5a oF tAjW.'y.
"Seotlon a. It ln.~agreed tlmt my abuse oi this
Artlole by an ezuployweeh011 mclJnhis InaPeclleto
dlb-
ohfwge.
“Seation 9.- An employae h¬ collect the bwne-
fits of this Article end the bemf~to of nrtlcle IX
et the ama time.
"Seotion 10. Ati employee who lo Ez~Jumd in the
refinery and is sent home bemuse of such inju.~yshnll
receive pay ot hla regular hourly rstr~for t!m trolonce
OS the ezployew's soheduled vor&&~;~, on vhlch the ln-
jury ocourr(b3.”
Article 4716 of \ielFAOA'E~nnotete!~Rovlaed C$vLl Stetuteo
is in part 61sfollows:
HOL 0. P. Lookhart, Page 5
I An aooldent lnsurm-~osocmpmy shell
. be deeAd &be 6 oorparatlondoing business under
eny charter involving& the payment of money ox other
thing of value, oaadltioned upon the lnjuxy, disable-
ment or death of persons resulting from traveling OF
general aooidents by lend or vater,~ A health insur-
anoe oompany shall be 'deemedto be a oorporetion
doing business under any oharter inyolvi.ngthe payI
Pent oi any amount of money oa?other thing of value,
oondltloned u on loss by reason of dfsabilitp due to
slokness or 1P l-health. . . ."
The word ~"lnsuranoe"is deflnwd In 24 Tex. Jurls,;
P. 650, as follows t
“~Insuranoe* is a vord of comprehensiveend
varied meaning. In .ageneral sense, the tmm slg-
nlfies an iigreement,for a oonsideratlor., to pay a
SLIOI OS money upon the hnpponlng of’ a pertiouler event
or oontingency, or lnchdfying for loss In respect
of a spealfled subjeot by speoifiwd perils; in other
vords, an undertaking by one party, ,uauollraalled
the Insurer, to proteot the other party, generally
designated as the insured or the essured, from loss
arising from named risks, for the oonslderetlonand
upon the terms and under the oonditlms reoited."
The vord "lnsuranos"is defined in 32 Corpus Juris.,
P. 975, as follOwa:
%madly d8fined, insuranoe is B oontraot by
vhloh one party, for a ooapensatloncalled the pre-
mium, assumes partioular risks of the other party
and promises to pay to him or l& nomlnoe a certain ~~..
or escerteinsblesum of money on a spooified oon-
tlngenoy. As.regerds property and litibllftginsur-
ance, it la e oontraot by whioh one party promises
on a considerationto compensate or relmburee the
other If he shal.1suffer loss from a npeoified
bause, or to guarantee or indert@fy or 'securehim
against loss from that muse. With some ?%$;pElgr,
partloulsrlg Is a contraot of indemnity.
insumnoe denotes also the act of'inaurlngby the
oontraot here,d.ofined,as veil 8s the system of
business of HNch such oontraots are the chnmotor-
iatic and vital Oloment.n
. .
Hon. 0. P. Lockhart, Page 7
"In one form or another the practice In
hosry,wlth age. The fermer knows that the promiso
to hls.hlred nan of gultting early and the loon of
a horse and buggy for the evening off rill produae
e big deyis work long before the early quitting
tine. The teacher knows that the prospect of Q
half holiday, if there are no ca8es of tardiness,
vi11 insure the early arrival et sahool of every
pupil, upon pain of the displeasure of his fsllov
students. So It is In industry. An expeoted bqnua
based upon results tends to discourage and expose
employees vho are lncllned to be lazy, thoughtless,
inefficient,and vasteful. Experience has demon-
strated that the psyment of a bonus vorka to the
benefit of employer and employee alike and, within
reasonable bounds, is advantageous to stoc~oldera
of corporations emploglng labor. Courts hove reoog-
nlzed this kid have given their sinction to the
practloe. . .'
39 Corpus Jurirr.',
Sec. 192, pp. 143-144, lays down
the follovlng rulesi
"The right of an e.zrployee
to compeasetlon
rests In genera1 upon the performance of services,
under an agreement, express or implied, that oom-
pensatlon shall be had therofoll,elthough there
need be no definite agreement as to the &mount
agreement 83 to compensation,it3 terns control."
(emphasis add,ed) ,,'
And Sectlsn 196, pages 147-148 thereof is in part
33 follous:
"An employee is not entitled to recover for
lost time where there 1s no agreement to that ef-
fect, or where the contract of employment allow
compensatin only for the days the employee works.
Where the employee is given 8 vacation with pay,
or s leave of nbaeti@ls granted, . . . the employee
is entitled to his vages for the time off."
xoa. o. P. Lookhart, Page 8
I
In the case of Missiwrl, K. & T. Ry~ico. of Texas
v. Bryant, 1.78 3.
W. 685, vrlt refused, the Court had ursle~
oonslderationthe right of an assistant general mana or of the
ralluny-ocmponyto reoover the balance of salary alafmed to be
due for time spent on leave of absunoo due to slokness. In ef-
firming judgment therefor, the Court of Civil Appeals h&Q that,
since the ebsenae was outhorited and granted In good faith by
an officer vho had authority so to do, and the authori&aticmof
said leeve having expressly provided that suoh ralary should be
dravn du%la the period of leave, the WiSiStSKLt 8SlNl'Ed IllSIlSgeP
was entitled to psy for the time oovared by such leave of absence.
Under the rules of law above referred to, the question
of pay during time off duty by reason of sickness or aooldent
under the terms and aondltions expressed in the exoerpts set out
would, in our opinion, not be a nattar of lnowams, suoh excerpts
showing no more than an agreement to pay extxa compensationfor
oontlnuousservices. It is our cplnlon, therefore, that your
question should be answered in the necntive.
Trustins that this sntlsfnotorllyonsners gou3?inquiry,
we remaln
‘is; Yoyx vcxy truly
ATTORNEY GENXRAL OF TEXAS
BY
Asaistsnt