*1 SOUTHWESTERN 464' Andrews, Logue, Streetman, Burns LIFE & ACCIDENT CO. CORSEY. Wilson, Houston, A. B. (Court of Civil Texas. Galveston. PLEASANTS, brought suit was C. J. This Appellee’s Dec. 1918. Re On Motion for by appellee $1,000 recover the sum of al- to compensation hearing, Appellant's Mo June 1919. On leged by appel- to be Rehearing, Oct. Compensation lant under the Act Workmen’s (Acts 1913, of this state [Vernon’s c. 179 Sayles’ Ann. 5246h- Civ. St. arts. <§=>405(6) 1. Master and servant —'Work- 5246zzzz]). Compensation Act; men’s petition alleges in substance TOTAL DISABILITY SUSTAINED BY EVIDENCE. plaintiff injured April 29, 1916, Evidence held sufficient to a ICirhy for the Lumber injured servant, claiming un- wage weekly $10.50; that defendant Compensation (Vernon’s der Workmen’s Act company Sayles’ lumber un- Ann. Civ. St. arts. 5246k- 5246zzzz), Act; peri- Compensation der Texas suffered total Workmen’s for the finding. od stated in the that vestigated the Industrial Accident Board had in- compensation, his claim for 2. Master <§=>385(5) servant —Work- compen- had decided that he was entitled to Compensation Act; “total per week, beginning the rate pacity FOR WORK” DEFINED. May 7, A916; plaintiff work,” “total in permanently reason of his said Compensation (Vernon’s Workmen’s Act entitled, provi- Sayles’ Ann. Civ. St. arts. 5246k- Compensation Act, 5246zzzz), to qualified workman in sions of the to receive Workmen’s does person kind of from defendant at performing tasks of the rate of $5 week for a total of 300 way as to render prayer recovery $1,- weeks. The procúre to regarded and retain totally incapacitated. The cause was submitted definitions, [Ed. Note.—Eor other see Words upon special issues, court below Phrases, Series, Incapacity.] Second Total the verdict returned was rendered plaintiff in favor of < n =226 sum of 3. Construction jury found, Compensation response to the issues Act. presented charge court, them Compensation (Ver- Since the Workmen’s Act non’s 5246zzzz) Civ. St. arts. 5246k- engaged from the performing Massachu- while the duties of Act, it setts tion as that should receive the same construc- employment by Kirby Lumber Com- the courts pany April 29, was inca- of that state. for work for a days plaintiff’s and that for 504 of said 4. Master and servant <®=>3S2—Workmen’s capacity days total, Act; remaining and for the effect only partial. appropriate injured employé assignments an' findings The fact that each of these ground assailed that it is without subsequent injury another master to any was not cannot defeat his Plaintiff,- substance, testified that on right in an action to recover employés while he and other against the insurer of the first mas- were ter, fraud, any, being' second, moving stacking lumber, one of his not the first master. piece coemployes let a lumber was lift- <§=>411 Master and servant —Workmen’s ing slip fall from the lumber hook with Compensation Act; to ex- lifting it, piece which lumber, and such AMOUNT CLAIMED. DEED . wide, which was about 14 inches injured against not an action servant thick, long, inches struck 18 or 20 feet and about master, servant is en- the insurer of his titled foot, and so prevent securing any perma- him as nent work since said fór in the was received. 'Two other testified witnesses ,W. County Court; from Harris they present and saw the lumber Monteith, Judge. foot, fall strike and both tes- Corsey against P. J. Home Suit tified that Company. stop was swollen that his foot Life & Accident to for Reformed thereafter. defendant testified affirmed. cross-examination topic and Indexes see KEY-NUMBER

<£=>For *2 Tes.) & ACCIDENT UFE CO. v. COKSEY ¡.W.) (216 July, part he went for for that in the latter partial days, prob- Silsbee, for then the 33 and he was from ably day employment period Beanmont, for with the whole injury up from obtained and day, day after ber, 10 or 12 his or of Decem- the creosote works stated, quit job, to work went But as before we and find hours. He finding han- evidence to sustain for dling was the Beaumont days, work for this His for 504 trimmers. lumber on August, days. only company 1916, number All that the evidence shows days. lasted caused, that his there obtained foot has and still he went to causes, pain, Horton, employment him his with Horton who lessens work, prevents city. securing perma- constructing him He worked from a sewer employment. nent -or The first contractors about weeks. continuous He describ- day his down the ed there he cut dirt as follows: of his work employer then his sewer. told He was “I worked for the Beaumont Lumber Com- work, enough good that was pany days, was, two I think it he me told and, language, then he “a give use his was permanent job me a if I did the job, piddling keeping wood in little around work. He looked at me and asked me ail- me, 16, 1916, and I told him about he On December little accident the furnaces.” Kirby’s, up at and he me if I could stand Fer- Armour job. steady do the work he would me a Company, for whom he worked one tilizer The foot I leg can’t work is that day. working company he While simply mé, misery gone fail all again injured by pile cotton seed was up leg rib, pains times, at him, falling has done no cake and he just pains; pain instep; most of the is in work since. up pains the whole foot swells ánd it me all testified, A over. witness May “I uncontradicted, have not earned more than testimony $35 since Tes; actually paid no more than $35. tiff the Westheimer Transfer worked for me for work. reason I haven’t is on the Company at Houston for about two or three job condition I haven’t been able to hold a November, 1916, paid weeks wage putting that trying time. have been forth efforts day. have not able to show was able to but been job enough long secure a hip up Armour a broken consisted of the work. do I am unable to and do stand It I could demand before. affects bone. For claim he made my times swells pains foot when I stand on me.” some- compensation against Ar- the insurer of the up Company, mour and was allowed tion of $5.77 He testi- The witness Jones testified: paid fied that was (Corsey) (Westheimer “He worked December, April, there at which year Company) Transfer in Novem- time he made a sum settlement with He ber. worked about the 25th or 26th company. the insurance He said he did not day of November first is the he went to work. remember what amount he received in this quit He between that time and before the first year. “think gone did not Christmas; had of the He was before paid anything there about three weeks. We with this case.” The 537 hour; paid cents an him $1.50 we for the work found the day; is, when he incapacitated period covers the from the 8th wagon average per day; he made on an of $1.50 accident, after the when his to re- only wagon weeks; he was on the stayed about two he compensation began ceive Work- help. office to around the He did this up that, date of and whenever could enough justify staying did not make he there, the trial below. suppose, disappeared I don’t and he We think this evidence was sufficient to paid That didn’t come back. week we sustain only hour—15 cents. If he worked one hour as claimed him on paid 15 cents. If he he would worked par- and as a result of such he was paid $1.50, hours he etc. He seem- tially incapacitated days, proba- for 33 willing worker. ed trouble as like never bly totally incapacitated anything some his courteous wholly that; course, position the evidence not in a insufficient to sustain Yes; he was do otherwise. obedient. that as result of such employé. not a condition he was desirable days. he was for 504 wagon. work on the He He couldn’t do wagon hardly get bn evidently the 33 enough No; ground. he couldn’t make the feed the evidence shows had worked sub- office, after he went work in the himself sequent to his Plaintiff testified that jobs,” place, little off etc. around only days’ work, this 33 inability properly shown, ánd he did work As before job. keep July, bringing 1916, could not time from 16, 1916, We think this would authorize a to December and received

216 S.W.—30 216 SOUTHWESTERN days during These therefor. July time from to December 1 to only partially incapacitat- weeks several with intervals of ed, nothing performed receiv- work for which he the evi- there is wages, we these ed his condition show that dence to *3 it was on from what intervals was days “These from 1 33 covered of undisputed evi- the worked. to 15 weeks of several with intervals re- 16th he shows that on December is dence and there noth- ing in the evidence to total which caused show second ceived a during these intervals was different incapacity, com- has received it he worked.” Compensa- pensation under the incapacity. to- If he was for such tion Act justi- not think now that we were injury incapacitated by tally received the concluding in fied suffering April 29th, to- from such able to of kind work 16th, incapacity December tal 33 the of incapacity injury, the total ceived second totally incapacitated during the remain- to that existed have of der tained. The not be mentioned could sus- chargeable might or the other one to testified: partly partly to one of injury “This hurt me so that have not been He made claim for to other. any salary able demand since. by in- total tempted work, every job got I that I lost 16th, has received on December my employers say because abilities were of ices would monthly provided nature that such serv- by period from Decem- the statute for the of were not use to them.” ber, April, 1917, 1916, for such time by There was other corroborative the amount thereafter plaintiff. of statement of seems which amount ceived in his by settled the authorities is not shown. If was entitled com- by pensation work,’ “The ‘total the Armour for total of Act, in does not used Workmen’s injuries December kind caused 16th, received.on person disqualified perform- totally but a not is manifest that he was it ing such, of a in tasks workman such receiving prior to way ployment procure him to as to enable and retain em- appellant permit To him to recover from ‘totally regarded is incapacity caused ” capacitated.’ Bros., Kan. Moore Peet 99 April 29th and exist- 443, 162 Pac. 295. during the time he was received December rule announced is perpetration Lacione, be to sanction the following 269, would Mass. re cases: are, Sullivan, 485; in of a fraud however, or the other case. We In re E.N. upon by 1916A, not called evidence L. A. 105 N. E. R. Mass. Mass, dispose ground; upon Case, there 378; Deprey’s case 106 N. E. no evidence injury employé’s compensation result as a is act [3] Our 29th. the Massachusetts any If shown error is the other receive the same construction should and that brief, assignments presented appellant’s in courts of likely Case, supra, is it is such as occur an- not In the Sullivan state. trial, court, referring not and therefore need be dis- to some of above cited, say: cussed. judg- For the reason before indicated the opinion these “In our decisions are correct ment below reversed is object principle.. compensation capacity Mass. of our statute towas cause remanded. loss of the wages. Case, Reversed and remanded. earn Gillen’s 1916A, E. [L. N. R. injured employs If, case, 371]. Rehearing. Motion injury unable, spite by diligent efforts, reason record, [1,2] Upon re-examination employment, to obtain ap- language of authorities that he was still consideration cited an abuse capacity money, that rehearing, he still had earn pellee’s able we have motion reach though physical powers might even erred in that we our for the conclusion enable to do some kinds as to be such work holding in this case mer practically the labor market were not if no there was him. He become has thus closed earn suffered total inca anything; has lost his injuries complained pacity, himself, wages not suit, conditions, change the number of in this in market but because of of personal himself, stating jury. in our After former a defect which (cid:127)which is the Tex.) which the has get it, although by van’s statute pose Cas. mer insurance tained may judgment complains in plaintiff, allowing period suit. sequent injury tions cannot ormation of the claimed claimed ^[4] [5] There opportunity sustained. He is because he could do some holding 1915C, have obtained Case, We further portion at the rate of carrying of 504 defeat his statute is for company, to be construed reason of his direct plaintiff’s petition. because of the petition setting is, however, to work. this suit. Mass. under an out its manifest incapacity from a promises judgment. case which think we erred result of the which he was not entitled N. C. C. A. compensation for the sub rendered are as follows: or 72 weeks. On this deprived per time received $6.30 But we said 104 N. incapacity for injury of which he for an broadly to him week more than is The fact an error *4 time allowed fact that per recover in this out the amount judgment he can purpose.” GANDY if he week. This in our for compen for said refused; benefit allega obtain Dono found be for a pur (216 ! sus ref v. CORNELIUS ;.w.) the judgment been so ordered. appellant judgment of the trial court. per week. Under article 5246m of Vernon’s found that wages amounts to 90 cents days which allows cover 60 tled It follows from what we Reformed and affirmed. In answer to In a motion for The motion for reformed GANDY v. CORNELIUS. motion consideration, and, except apparent upon indicáted, before and after his Appellant’s Civil obvious 4=/7 per our attention has of the court below weeks, cent, The appellee difference special further to which clearly wrong, of this portion rehearing presented per been so t.he we think it should be he was entitled to affirmed; indicated. issue No. $26.10 face should reformation between injury during been called to difference, 90 cents a week have said has been ordered. of the record in the matter reformed, Tliirty-three and must appellee’s judgment granted, is enti- given $1.50 jury “That Industrial Accident (Court Board for the An- of Texas. San Civil adjudicated plain- state of Texas heard and Rehearing tonio. Nov. De- against rights and tiff’s defendant, nied Dec. plaintiff, and found favor of find- he was entitled to the IN SEQUESTRATION <&wkey;17 QUASHAL ABSENCE per week, beginning May, $5 TO AS VALUE OF or ALLEGATIONS PROPERTY. 1916, on account sustained note, holder of secured Where the the Company. purchase price mules, sought to for the foreclose his of three mortgage lien writ sustaining injury, “That the said property, sequestration possession alleged by plaintiff the Industrial quashed, must be neither the affi- the writ davit nor the item of the Board, leg and foot have Accident alleged petition of each value pain him, and he is unable to continued property, required by Rev. St. crutches, being unable to walk without and 1911, art. 7095. plaintiff alleges that entitled to have and per $5 the sum of week receive of Kleberg Court; County Ben F. weeks, will Wilson, Judge. earn a as he was to work and unable prior totally sustaining injury, and has been said against C. Action A. W. Cornelius sustaining Gandy. and defend- alleged. hereinbefore part, and reversed ant Affirmed “Wherefore, prays that the defendant part. and rendered hearing cited, hereof $1,000, Jones', Robstown, the sum of of defendant tiff recover the rate of W. C. per from and after week $5 Hook', Antonio, Wesley and Chas. of San T. other and for after said Reese, Kingsville, H. special relief to, of court.” and for costs COBBS, instituted to This suit was J. cent, saying and 10 goes note for on a cover without alleged fees, torney’s note was at a cannot mules, mortgage alleged peti- lien on three in his secured fully petition described tion. Indexes topic and KEY-NUMBER cases see same