*1 affect the distinction, does not technical merits of the decision. McDonald invokes Ins. Ass’n which it adopts therefor, legally that, one is held statutory procedure under the a child thereupon becomes such one meaning “parent” of the act. simple plainly so, reason that That is the statute parent expressly relation of creates child, natural if the adjusts existed, relation liabilities legal status. to that of the Act, Compensation the terms Under the parent to be entitled in that case was compensated death accidental child, dependency. question reference ' appellee’s But in this practical rests, mat and as after all dependency, which, stat ter, upon coupled ute, grandparents, children, the relation with sisters brothers employee, to entitle in order of the claimant deceased compensation. Article R. S. § appraised We conclude we opinion, original appellee’s case adhere, her and overrule rehearing. CO. v. INDEMNITY
GREAT AMERICAN al. McELYEA et No. 2780. Rodgers Turner, Winn, Dallas, for. appellant. Appeals El Paso. of Texas. Civil Court of Hughes Monroe, P. P. Ballowe and all of 9, 1933. Feb. appellees. Dallas, for Appel Rehearing March Granted WALTHALL, Motion. lees’ Justice. IS, MeElyea appellee On October Rehearing 16, 1933,on March Denied injured by falling claims to have been Appellant’s Motion. through the floor of an ice in in house located street, block North Haskell city Dallas, being that, Tex., his claim removing top ice, floor while he gave'away through. Appellant and he fell carrying at the time the insurance for Delivery Company, employ- his er. time he In- due claim with the dustrial Board for injuries setting out the nature of his to be: and Other Thorough May Develop On Examination.” MeElyea Thereafter, submitted himself to operation for the
an
hernia which he claims
developed
injury.
immediately after the
A
had before the Industrial
Acci-
MeElyea was
awarded com-
dent
pensation
rate of
week for
*2
dustry Company,
in favor
made
elaim
An
was also
26 weeks.
I
provided
you
Employer’s Diability
from
for
parties
and
Act
who furnished
personal
hospitalization
injury
operation including
foi
in the
sustained while
employ
Dallas,
City
Company
of
reasonable value of such
injury
my
Texas. The time of
o’clock P. M. on
was 7:30
appeal
gave
Appellant
from
of
due notice
day
October,
of
the 15th
award and filed
suit.
this
place
injury
my
1930. The
in 2800 Block on
of
Ice House
was
Thereupon, McElyea'filed
and
his answer
Dallas,
st.,
Haskell
North
recovery
seeking
and
total
cross-action
for
a
my injury
Texas. The cause of
was While
permanent disability,
later
filed
and
Removing
Away
Ice,
Top Floor
Gave
he
in
amended answer
again sought
cross-action which
and
my injury
And I Fell
of
Thru. The Nature
perma-
total and
to
for
is as follows:
lump
disability
prayed
for a
nent
and
Other
pe-
supplemental
Appellant, by
settlement.
May Develop
Thorough Examination.”
On
jurisdiction
tition,
a
raised
of
try
the claim Prior
firm
to
Dr. Shortal of the
Bumpas,
to
and determine
the award
of
Shortal,
present-
cross-action,
up
that it
Burton
in
in
wrote the fol-
set
lowing
been
letter which was filed with the board:
ed matters which had not
that Mc-
Board
the Industrial Accident
Elyea
certify
“This is
was
that G. C.
necessary procedural
not taken
had
injured
falling
on October
a
ju-
perfect
appellate
steps necessary
lbs)
height
(100
block of ice
from about the
Appellant
de-
further
court.
risdiction
attempting
pull
of his shoulders. While
specially,
generally,
to the cross-
murred
slipped twisting
the block of
body
his
in his
ice his foot
allegations
generally
action,
there-
denied the
pain
straining
He had
him.
specially
that Mc-
denied
in
Elyea
livery
contained
left side at
He consulted another
the time.
employee
Ice De-
was the
days
physician in
a
or ten
about week
injury,
Company
of his
at the time
Nothing
was told that
Hernia.
was
he had a
provisions
the Workmen’s Com-
about this.
done
seq.,
pensation
(Rev.
Act
art. 8306et
St.
“During
December he
latter
amended).
April
came under
and on
our observation
February
its
operated
Inguinal
repair
17th he was
in
leave to take nonsuit
Remaining
two
Hernia.
in
about
McElyea the full amount of
and tendered to
satisfactory
apparently
re-
weeks. He
the award made
Board.
Industrial
Accident sults.
hips
“He also had some
and back
nopsuit,
The motion for leave to take
exactly
the nature of which
be
stated
cannot
jurisdiction
plea
as the
well
to the
x-ray
is to
examination. This
deter-
court, were both overruled.
any body
misplacement.
mine
fracture or
testimony appel-
At the conclusion of the
approximately
“Our bill will be
$100.00.”
renewed its
lant
motion for leave to take
quoted
From the above
and let-
again
a nonsuit and it was
overruled.
appears,
think,
ter it
jury
The cause
to a
hernia,
appel-
therefore,
was not limited to
findings
position
cial issues and
their
the court
lant’s
is untenable.
in
rendered
favor of
is true
board
54,932.30;
permanent
for total and
disabil-
hernia, yet,
hearing
an award for
in the
be-
ity
sum;
paid
that it
in
in
it,
fore
that
both the
Shortal,
favor of the
firm of
Burton
apprised
of the fact that
Bumpas
performing
for $100
the hernia McElyea
claiming
that he had suffered
operation;
Baylor Hospi-
in
$74 favor of
injuries other than hernia.
hospitalization
tal
such
in connection with
proceedings
before the board be
operation.
ing
informal,
more or less
claims before it
This
has
from that
alleged-with
particulari
need not be
judgment.
ty
would
court.
Opinion.
assignment
questioning
of error
overruling
plea
action in
court's
its
to the
Appellant first
attacks
action of the
jurisdiction is without merit.
overruling
jurisdiction
plea
in
its
court
of the court.
assignment
assigns
Under
this
the con
also
error to the court’s
permit
is made
cause
tention
of action
refusal to
it
to take a nonsuit.
up
cross-action involved a cause of
probably
general
While it is
rule
action different to the claim filed before the
plaintiff may
nonsuit, yet,
take a
Board,
therefore,
and,
Industrial Accident
doing
operate
the effect of
so would
to de
the court was without
tain such
to enter
stroy
jurisdiction,
the trial court’s
the court
cause
action.
justified
refusing
to entertain such a
McElyea’s claim before the board reads:
Corp.
motion. Ocean Accident & Guarantee
notify you,
“This is
Great American In- McCall
assignment
never been
submitted to the Industrial
attacks
Another
Texas,
surd settle-
if
on the
because no discount
jury’s
render a
find-
should
therein.
ment is allowed
ings
issue, plaintiff
to said
not be re-
would
governed entirely by section
In cases
liability
physicians
lieved of
who are
*3
appears
S.,
15,
8306,
the rule
article
R.
alleged
performed
operation on
to have
that
the issue
discount
well settled
jurisdic-
the defendant and this
tion
no
court has
question,
applied
to be deter
be
mined
is a
of fact
any
amount or make
to determine
such
Casualty
jury. Maryland
Co.
by
any
of Lum-
award therefor under the case
142;
S.W.(2d)
(Tex.
App.) 22
v. Ham
Petroleum
App.)
Civ.
Reciprocal
(Tex.
Ass’n v. Wilmoth
bermen’s
(Tex.
Casualty
Civ.
Co. v. Bristow
App.)
S.W.(2d)
Com.
12
972.”
Recipro
S.W.(2d) 9;
Lumberman’s
21
objection
The same
sub-
Behnken,
103, 246 S. W.
Ass’n
112 Tex.
cal
v.
special
mission of
issues Nos. 21 and 22.
1402;
(Tex.
App.)
226
Id.
R.
Civ.
28 A. L.
Herzing
Employers’
154;
Texas
Ins.
S. W.
v.
objections
These
are made the basis
1046;
App.)
(Tex.
Ass’n
Maryland Casualty
17
Com.
appellant’s assignments
9,8,
Nos.
(Tex.
Marshall
Civ.
Co. v.
thereunder,
11, and,
proposition
under its
App.)
S.W.(2d) 337; Consolidated Under appellant
14
asserts that the trial court had no
App.)
(Tex.
Saxon
writers v.
Com.
to hear the claim for
447;
143;
(Tex.
Id.
Civ.
250 S. W.
hospital
because
had not been
bills
Indemnity
Milam
Civ.
Western
App.)
Co.
the board.
included
claim before
S.