The opinion
SPEER, Justice
(dissenting).
I feel impelled to dissent from the conclusions reached and expressed by the majority in granting the motion of appellant and reversing and rendering the judgment of the trial court as indicated.
I believe that the rule giving a liberal construction to the Workmen’s Compensation' Act by the Supreme Court in Mingus v. Wadley, 115 Tex. 551 , 285 S.W. 1084 , and the numerous decisions following that case and the holding in Federal Underwriters Exchange v. Pugh et al., 141 Tex. 539 , 174 S.W.2d 598 , relative to jurisdiction of a district court in a county other than the the county in which the injury occurred, when transferred to such county by agreement of the parties, and the necessity of giving effect to Rule 94, Rules Texas Civil Procedure, require that this cause be reversed and remanded rather than reversed and rendered for appellant, as indicated by the majority opinion.
From the order entered by the Industrial Accident Board copied in the petition for jurisdictional purposes, it is obvious that the question of jurisdiction of the Board for lack of three or more employees by the employer was not presented to nor passed upon by the Board. It is equally clear to me that both the employer and the carrier knew at that time what the real facts were in this regard. As pointed out in the original opinion the issue was injected into the case at the- conclusion of taking the testimony and no opportunity was given appellee to ascertain what, if any, facts existed, which under the statute referred to would affect the validity of the policy of insurance.
I believe that Rule 94, supra, was promulgated to meet such a condition as is presented in this case — that is, if a defendant expects to resist liability under a pleaded contract on the grounds of the invalidity or illegality of such contract, he is required
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to plead it and thus fairly present the issue for determination. I adhere to the conclusions expressed in the original opinion, and believe that both motions for rehearing should be overruled.