Northwestern National Life Insurance Co. v. Black , 1962 Tex. App. LEXIS 1941 ( 1962 )

FANNING, Justice

(concurring on reversal and remand).

My concurring opinion in affirmance, of June 26, 1962, is withdrawn and the following opinion is substituted in lieu thereof.

Originally it was my view, as expressed in my opinion of June 26th, 1962, that the terms “employee” and “full-time employee”, not having been defined in the insurance policy, (in connection with the insertion of the provision in the policy to the effect that “all present employees” were eligible for insurance) should be given a broad and liberal construction and one most favorable to the insured. It was also my original view, as expressed in said opinion, that the judgment of the trial court could be affirmed on the theories of waiver and estoppel.

However, upon careful re-study and reconsideration of this cause, it is now my considered view that the judgment of af-firmance was erroneous and that the judgment of the trial court should either be reversed and rendered or reversed and remanded.

I am now convinced that the proper rule of construction to be applied in this cause to determine the meaning of the terms “employee” and “full-time employee” is the rule that language used in insurance policies is given its usual and popular meaning unless it is ambiguous or it is shown that the parties intended it to have a special meaning. Insurance 32 Tex.Jur.(2) 115, Sec. 57.

The insured, Mr. E. C. Black, was a director or member of the Board of the Texarkana Water & Sewer Systems, and the record indicates that he occupied the status of a “public officer”, although the record is not as fully and properly developed on this matter as it probably should be.

Public officer has been variously defined, and in 67 C.J.S. Officers § 2, pp. 101-102, the term is referred to:

“ * * * an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law; a person whose duty it is to perform an agency for the state; an officer who discharges any duty in the discharge of which the public is interested or who is invested with the authority and is required to perform the duties of a public office; one who has some duty to perform concerning the public.”

Knox et al. v. Johnson, Tex.Civ.App., 141 S.W.2d 698, in discussing the definition of a public officer cites with approval the rule laid down in 53 A.L.R. 595, as follows:

“ ‘It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.’ ”

The rule laid down in 53 A.L.R. 595 is also in harmony with the definition of a public officer given by the Supreme Court of Texas in Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120.

The determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the public largely independent of the control of others. Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578.

An employee is one who works for an employer; a person working far a salary or a wage. The word is applied to any one so working, but usually only to clerks, workmen, laborers, etc., and but rarely to officers of a government or corporation. United States v. Schlierholz, 8 Cir., 137 F. 616, 624.

It is my view that the term “public officer”, as used in its usual and popular meaning, does not have the connotation that a public officer is an “employee”. For a public officer to be held to be an employee, it is thought that it would have to be done under a very broad and a very liberal definition or construction.

If the record in this cause conclusively showed that Mr. Black was a “public officer”, it would be my view that he would neither be an “employee” nor a “full-time employee” and under such circumstances the judgment of the trial court should be reversed and rendered in favor of appellant.

It is now my further considered view that the judgment of the trial court can not be supported upon the theories of waiver and estoppel, as there was no showing made in the record that any statements that may have been made by the soliciting agent of appellant insurance company was to have been either authorized, known or ratified by the appellant insurance company. See the following authorities: Washington National Ins. Co. v. Craddock, Tex.Com.App., 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Southern Surety Company v. Inabnit et al., 119 Tex. 67, 24 S.W.2d 375; Great American Casualty Company v. Eichelberger, Tcx.Civ.App., 37 S.W.2d 1050, wr. ref.; Traders & General Insurance Company v. Lange, Tex.Civ.App., 354 S.W.2d 178, wr. ref.; n. r. e. In Traders & General Insurance Company v. Lange, supra, it was stated:

“Regardless of what Neil Cooper said, or did, there is no evidence in the record to show that his principal, the appellant insurance company, did any act or made any omission which would indicate that the principal knew about Cooper’s representations or acts, or ever ■ ratified such acts, and under this record there is no pertinent act or omission traceable directly to the principal.”

I am inclined to the view that the most serious question in this cause is whether the cause should be reversed and rendered on the record before us or reversed and remanded in the interests of justice, for fuller development of the evidence on the questions of whether the insured occupied the status of a “public officer” and whether he was either an “employee” or a “full-time employee”. While perhaps this cause could very well be reversed and rendered under the .record, before us, I am agreeable to the disposition that this cause be reversed and remanded, in the interests of justice, for a fuller, more complete and more proper development of the evidence in the cause with respect to whether the insured was a “public officer”, and whether he was either an “employee” or a “full-time employee”. I therefore accordingly concur in the order of reversal and remand.