226 S.W.2d 663 | Tex. App. | 1949
Appellants’ statement of the nature and result of the case is as follows:
“This is a workmen’s compensation case, the facts being undisputed and mostly stipulated as follows:
“On August 21, 1943, Johnnie Garrett received an accidental injury to his head while working in Victoria County, Texas, within the scope of his employment with
The above statement is accepted by ap-pellee as correct with an addendum that the Workmen’s Compensation Insurance policy issued by appellee to Rowan and Hope, Inc., and in force when Johnnie Garrett was injured, expired on January 1, 1944. As above pointed out, Garrett was injured upon August 21, 1943, and thereupon ceased to be an employee, in that he performed no further services on behalf of the company.
Appellants present one point of error, which reads as follows, to-wit: “The trial court erred in its conclusion of law that the applicable compensation rate to be applied in this case is $20.00, the rate provided for by the Workmen’s Compensation Act on the date of the injury to Garrett, rather than the rate of $25.00, the rate provided by such act as amended on the date of the death of Johnnie Garrett on October 6, 1947.”
In reply to this point, appellee contends that, “All rights available to appellants under the compensation statute must be determined by the appellee’s contract in force at the time of the employee’s injury.” (Appellee’s counter point No. One.)
Appellants’ argument seemingly regards the obligation of the workmen’s compensation policy as being one binding the insurance carrier to pay such amounts as may be provided for by statute, subject only to the proviso that the statutory rate of compensation sought to be applied shall have been established prior to the time the cause of action arose.
A claim for death benefits following a compensable injury is a separate claim from that based upon the injury itself. The cause of action based upon death arises when the death occurs as a result of the injury. Article 8306, §§ 8, 8a and 8b, Vernon’s Ann.Civ.Stats.; Texas Employers’ Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991; Traders & General Ins. Co. v. Baldwin, 125 Tex. 577, 84 S.W. 2d 439; Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046; Maryland Casualty Co. v. Stevens, Tex.Civ.App., 55 S.W. 2d 149, wr. ref.
However, it does not follow that the appellants as beneficiaries under article 8306, §§ 8, 8a and 8b, are entitled to recover at the maximum rate of $25.00 per week under the 1947 amendment of Article 8306, § 8, Acts 1947, 50th Leg., p. 521, Ch. 307, § 1, which was in force at the time of the death of Johnnie Garrett on October 6, 1947, when the cause of action arose.
In Texas a workmen’s compensation claim is based upon contract. South
We doubt if there is a constitutional question involved here, for the reason that no retrospective intention can properly be attributed to the Legislature in adopting the 1947 amendment to Article 8306, § 8. We do not believe the Legislature intended that the 1947 rates should apply to policies which had expired prior to the effective date of the amendment. In State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707, 708, the Supreme Court said, “It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retrospectively, * * * unless it appears by fair implication from the language used that it was the intention of the Legislature to make it applicable to both past and future transactions. (Citing authorities.) When we apply this rule to this statute, we find no words contained therein which indicate a legislative intent to apply its provisions to past transactions.” Cf. Beausoleil’s Case, 321 Mass. 344, 7fi N.E.2d 461; Annotations, 82 A.L.R. 1244.
Appellants’ point is overruled and the judgment of the trial court affirmed.