*1 INDEMNITY INS. CO. v. TEXAS HOLLOWAY et al.*
No. 12319. Appeals Worth. Texas. Fort
Court of Civil May 17, 1930.
Rehearing 21, 1930. Denied June granted. error
*Writ *2 totally alleged permanently incapacitated by reason injury; that at average wage weekly $82.92, and that compensation at the was therefore entitled to rate of reason of *3 by weeks; that a week $20 for con- financial his and condition dition of his health recover he was compensation sum, computed lump on in a alleged that that -basis. Defendant further requirements complied of he had fihe with the Gambill, Goree, L. L. & Allen and Odell injury giving and law in notice of his Worth, appellant. for all of Eort filing compensation. In claim, the the for of his appel- Worth, Clark, for Eort Clark of & alleged alternative, if he further that lees. -complied provisions he had not with those good having of the law he reason for not had DUNKLIN, J. so, immediately sustaining done in that Holloway employee employer thereof, the and W. E. was an he notified his notice; requested Magnolia Company that while it to Petroleum make out and file company subscriber, Work- compensa- of the tion was under his for claim and ; Compensation)Law, employer in- promised an men’s and carried that do so to Indemnity demnity policy In- with the Texas and defendant believed and relied that injuries Company covering promise. received surance employees A claim subscriber. alleged plaintiff Defendant further that Accident Board filed with the Industrial was knowledge promise had made so injury alleged by Holloway have for an Magnolia plaintiff pany Company; Petroleum that performing the him while been sustained merely was the tool of that com- employment. An was award duties of his and that of his claim notice and (cid:127) Holloway. in favor of made the board compensation employer for le- to his was in brought company in to then suit The insurance gal plaintiff binding upon plaintiff; effect Tex., county, Tarrant district court of company conspired and said had Indus- made so set aside the award bring with each other to about the failure Holloway Board. In that suit trial Accident give plaintiff defendant to order that such .failure notice to the in attorneys parties made defend- were his and might bring about ants, ain a trial of the ease resulted compen- defeat of the defendant’s claim for defendants, (cid:127)judgment from which in favor sation. prosecuted company has this the insurance recovery prayer There was a further for appeal. $817, alleged which the had defendant he company nomi- insurance was While the paid hospital for medical out bills. plain- Holloway nally plaintiff, real general company The insurance filed a de- attorneys being interest; parties his tiff only by Holloway’s pleadings, specially nial of the fact reason alleged denied jury he had sustained they Compensation Law would Workmen’s be entitled employment, the course recovery by part Hol- to a .specially given any -denied that he had notice attorney representing loway an fee for alleged injury plaintiff or to the Holloway convenience, will be Eor him. any Magnolia Company, Petroleum or filed the defendant referred to as hereinafter Industrial thereon Accident attorneys. n the names of his the exclusion Board; reason of injury such failure alleged pleadings, defendant In his file notice of the pensation, claim for com- during December on about right had waived of com- he by Magno- employment the course pensation. The insurance further engaged Company, Petroleum lia Magnolia alleged Petroleuin Com- truck, driving in the act and that while salary pany paid had the defendant his full rup- cranking he sustained machine compen- portion time which strain result 'as the hernia ture or sought, and that amount sation paid alleged performing further act. It was any allowed as a credit shóuld be rup- pain at the time that he suffered against the insurance claim for confined thereof he was account ture company. 19, 1927, when about March until bed to his an special issues are submitted performed operation him thereon; findings jury with hernia; he returned June that on injuries E. receive Did “1. night watchman and worked to work employ Magnolia Petroleum in the while August 19, 1927, capacity when the until that condition of the Company about December on or such that hernia became Answer: hernia? Yes. resulted work; any to do was unable prior question you one answered need not have suffered “2. If he had not his said any negative, you degree. answer rupture or hernia in in the It. with the . 'monthly wage ‘Holloway swer: part (cid:127)from and cranking No. instructed that able cranking 1926, he is rendered unable tasks as used mean absolute of cranking that he did swer : if What or has such manent? yes, the tion, you no, you hernia there was answer: Did the affirmative, Company in the 1926, accompanied received W. E. answer: nia, When did W. abled pranking 1926? cember Yes. diately following the swered of the answered same “13. Do “12. What “In “9. Was “7. Will “8. If “4. If “6. If “5. Was W. you “3. If labor; you negative, following questions, proximate have you immediately have answered of the insurance him if injuries * [*] occasioned proximate of a Answering $140.00. injuries have answered Aug. 19,1927. affirmative, exist you Answer: following you same in such need you you have answered you you Was the need a truck reason a found on or been Answer: received on or you W. E. workman 1926? truck one, appear find such to n find that he was truck truck on person then you procure of time will have not answer do become you so received? have, E. (have of W. E. disability not answer result injuries find 'that the failure on E. questions does not he totally disabled, in the about Holloway of such result questions Yes. Holloway partially to W. for you you questions, before he was n'eed injury, on or hernia, *4 Answer: No. answered Holloway you may answered degree sustained, affirmative, by pain? answered Yes. phrase ‘total same and retain in such or about December of the hernia caused or 'about totally same, to be company find negative, will answer: answered December be the case? not answer Holloway need of resulting suddenly about December injuries? Magnolia E. injuries, this about W. if perform the usual if prior yes, become a hernia this totally perform Answer: any, no, but Holloway while E. you not answer on or if totally question Seven, question, but if question disabled? if Answer: Yes. way and injured? then answer: December then you December then answer: Holloway be, question, then case, employment. which W. if same have at the time al injured necessarily any, if totally disabled pay disability,’ Petroleum .reason about you as to have Did' Answer: Answer: disabled you you disabled received you will he average you Two to W. imme- Three found while ques- Five, kind' have her- said per- An- find dis- An- are De- en- an- by Eleven; E. of if if substantially to W. the verdict teen, Eighteen, tion Thirteen, quired for not Question way evidence, months after the date of such Magnolia One, swer: Yes. in a hernia caused that cident Board vise W. E. tice of compensation? Answer: Yes. notice, and if pany Yes. leum nia truck, will answer: Did W. E. juries days swer: work manifest said W. E. teen, a hernia caused December E. the received by six months Answer: Yes. you truck tion for “The court finds from the In addition to the “The burden of “19. Did W. E. “18. Did W. E. “16. Did “14. Did “15. Did W. E. “17. If judge cranking E. may said promise Magnolia failing if find caused Ten, to establish he received such to file his Two, no, Company Holloway, you if were so received receiving about filing W. E. injuries as recited in the recover you injuries resulting that Twelve.” or about December you Fourteen, you Petroleum have answered Holloway December Magnolia to Holloway? the date of such Three, Pour, Five, of E.W. said per find that he did fail to the whole affirmative Petroleum a claim with of he did receive need not answer this 1926? Answer: Yes. give you the amount said have answered and claim for notice of Texas, cent herein, received by company’s Questions Six, Eight, Holloway Holloway injuries hardship receiving compensation, by cranking are the cranking have notice to Magnolia Holloway, foregoing cranking Fifteen, Nineteen; average that it would Petroleum inquired of Company, preponderance by him, Answer: Yes. Company injuries injuries, at in a found that such in- answer to Holloway rely upon judgment 1926, give same, by findings by resulting in a hernia caused inquired make claim to the injuries resulting truck on or about evidence have such same? Magnolia him Petroleum Com- $32.30, 12, 1926, said weekly Sixteen, year lump sum, said findings injuries? about compensation? injuries? An- Industrial Ac- a truck of the within and claim time, question yes, within Company Seven, Nine, if injustice if resulting that he had good within six injuries, good file his no- next company’s company’s compensa- rendered: Questions give any, E. Hollo- in a her- you notice about then question, Answer: wage and the Seven- within Petro- thirty thirty ques- prior such said find Six- you An- tri- for ad- in- if company presented finds case the would court said, weekly wages him, average §32.30 is Accident Board for and that he relied ’ promise. testimony just parties. finds that There was other fair that recover of to all The court the, Mag- it was effect that the custom 'the said W. E. Indemnity Company nolia Petroleum with the file from said Texas such claims compensa- corporation, Company, and on Accident Board for behalf Insurance injured employees. period of 401 its for a $19.38 tion at the' rate of day August, weeks from the 19th The tion testimony Such sufficient compensa- finds weeks that 97 court findings by Holloway gave per has ac- rate week $19.38 at the notice' to the judg- of this crued matured: the date injuries within 30 in- after the ment, totalling finds that The court $1879.86. juries ; advised him at entitled to interest said W. E. would file notice of his and claim per per ma- annum on said cent the tured and rate Board; with the Accident weekly unpaid payments in the to- promise-so do; that he relied its $99.56,a sum of now $1979.42 tal sum of total good filing that he had cause for not a claim weekly payments being in- on matured due statutory period with the board within the cluding said interest. court finds injury; six months after the date of his not- compen- withstanding testimony is further entitled W. E. his further that dur- a ing week for August, $19.38 sation at rate the month of hereof, *5 period theTegal agent Magnolia 304 weeks from the date less and of formed of the the Petro- provided law, Company discount as leum that it had not then filed his legal finds of 6 the court that the discount claim with the Industrial Accident Board. fair and and that the cent is reasonable In this connection it will be noted that at the compensation present discovery of to which period value the time of that the of Holloway E. making the said W. date ed the compensa- six months for claim for hereof, provid- legal already less expired; discount as tion had and no issue was by law, $4989.91,making requested the sum of submitted or way as whether Hollo- owing good the said delaying total amount now due and W. E. filing had cause for Holloway of making $6969.33.” sum claim with board after that dis- covery November, until 1928. 4a Section of article 8307of the Workmen’s Compensation as follows: question Law reads good The of for fail ing to "filethe claim with the Accident Board or “Unless the subscriber have association period question the six within of fact to be determined findings by months’ was a injury, injury proceeding no for com- notice pensation of jury, and the shall this law referred above cannot be disturbed injury shall maintained unless a notice of the have been Employers’ Liability this court. Assur. given to or sub- the association Corp. (Tex. App.) v. Francis Civ. 300 S. W. thirty happen- scriber within after the 137; Employers’ Texas Ass’n Ins. v. Price compen- ing thereof, and unless claim for 667, 672; (Tex. App.) 300 S. W. writ Civ. dismissed respect sation with such shall (Tex. Georgia App.) 300 Civ. S. W. Cas occur- within six months after the been made ualty 1092; (Tex. App.) Co. v. Little Civ. 281 W. S. same; or, of in case death of the em- rence of & Home Life Co. v. Orchard Accident physical ployee of his men- event or or refused; (Tex. App.) Civ. writ W. incapacity, tal within six months after death (Tex. Consolidated Underwriters v. Seale Civ. physical of or mental in- the removal such App.) writ dismissed. capacity. good may, Eor board cases, compliance objected trial, appellant waive the meritorious strict On the to the foregoing notice, 1, copied above, limitations as of submission but which will be No. filing again quoted before claim the board.” for conven ience, to wit: sup There was evidence sufficient injuries “Did W. E. receive while finding port a notified the employ Magnolia Compa- Petroleum Magnolia Company Petroleum ny on or about December which re- 30-day period prescribed within the sulted hernia?” statute, fur article ther shows without not file his the evidence controversy objection urged did un that he to that The issue was multifarious, claim Board with the Accident it was and submits two November, Holloway’s According question: separate til 1928. and distinct issues in one n . representatives testimony, First, also he notified whether or not re- Company injuries Magnolia employment Petroleum claim while in ceived the compensation Magnolia Company; and, for his within the Petroleum sec- period prescribed ond, six months’ or not such the statute. whether resulted further, objection. substance, He testified the hernia. There is no merit agent Magnolia Company Petroleum issue The was submitted the exact lan- promised gave 12b, guage him when such of article he notice to subdivision section that his 8306. That had sustained hernia 326 way attempting made claim to while to crank car was receiving “Rupture” within six basis of his another term months suit. his’injury, language “hernia,” ruptured, neces since that was in the and if was statutes; especially sarily injured, there was no issue as as and the also pleading ing ing company present reasonably insurance be construed submitted cannot negligence part meaning. having issue of on his in fail other City claim with file the the Accident Board this conclusion: .authorities expiration period S.W.(2d) after 'six months App.) Moore 12 Abilene v. Civ. Casualty refused; Georgia before he filed it Accident Board with the v. writ Co. 191; on S.W.(2d) November 1928. App.) Gibson 11 Civ. Gillaspie (Tex. Clifton Civ. Mercantile Co. v. expression “good used The statute App.) 906; S.W.(2d) 7 Wortham v. Bull cause” for failure to file such a claim within 211; S.W.(2d) Civ. United States prescribed. not define what does Fidelity Morgan (Tex. Co. Civ. v. term, appellant tó meant nor does by; S.W.(2d) Casualty 810; Fidelity Union v. present any authority requiring a definition Cary (Tex. S.W.(2d) given jury. Furthermore, of it to be to the is of such common use and un failing to Nor err in did court derstanding require definition. “proximate result,” term as used define the special issues Nos. 5 and since sec It is further insisted that compen right tion 12b of article finding no evidence could given resulting in sation “for hernia proper based as to a discount to be allowed employment.” jury sustained in the course present payment weekly wages for the qualified by any right pro And that is not mature court’s future. It is shown in the incapacity vision labor effect findings, judgment, recited in the that: proximate be the result the in must legal “The discount is fair and rea- 6% provided a causal connection there is present sonable and that value of the incapacity. and such between compensation to which the said E.W. Hollo- Peters, S.W.(2d) In Travelers’ Co. v. Ins. way legal hereof, is entitled from the date less the *6 1007, 1008, by Appeals, the Commission provided by law, discount as is sum the following is said: the $4,989.91,making total amount now due opinion the the rule of are of “We owing to the said W. E. the proximate application to has no cases cause $6,969.33.” sum of Compensation arising Workmen’s under the Since issue the of reasonable discount and ‘proximate cause’ is Act. term not used The present request- value not submitted was nor anywhere pensation claiming party A in the act. com- ed, duty trial'judge it would be the compelled act be under such cannot Ormsby Ratcliffe, to determine the same. 117 v. required by provi- go is to than 242, S.W.(2d) 1 1084. Tex. act, pleading prov- sions of either ing Appellant his cause of action. It is true that there has cited Lumberman’s Reciprocal Behnken, a c-ausal connection be- 103, must be established Ass’n v. 112 Tex. employee 72, 1402; of an Maryland an and the'death tween 28 A. L. R. recovery If, Casualty (Tex. would be authorized. App.) before a however, ducing Marshall Co. v. Civ. 14 pro- 337; S.W.(2d) Herzing is shown to be the Employ v. Texas justi- death, finding Ins., (Tex. App.) is S.W.(2d) Ass’n ers’ Com. 17 injury, support assignment fied that death was it due its to to the find cent, ing per of and out of the em- arises in the course of 6 noted. au Those discount ployment. established that It need not be hold that thorities all to evidence. the amount of discount proximate result of the death the in- was must allowed be determined from be
jury.” However, none of those decisions necessary the character of indicate following To same effect are the deci end; and the statutes Casualty are also silent Georgia Co. v. Little sions: point. upon The decision last 1092; Employ cited is App.) 281 W. Texas Civ. S. especially appellant; relied but that Ass’n v. Lovett Civ. 19 ers’ S. easily distinguishable pres case is ent fixed from refused; W.(2d) 397, writ of error Travelers’ 266 S. W. suit, Appeals in that the Court Civil Smith Civ. Ins. Co. v. cent, legal per proper rate of 6 as discount, finding absence there perceive We fail how it can be judge. or the trial We either said, 3, being upon insisted-by appellant, as that issue No. holding perceive no valid reason for that a should was submitted to erroneous as judge finding be so made the trial weight evidence; merely because no at be disturbed witness same reach the conclusion the as we signment testify tempted as to what be a would special issue No. based Indeed, it is reasonable discount. us proper difficult for objection same character. suppose that one could estimate a special legal no error aside from the was issue No. discount rate of There limiting issue, per was within which Hollo cent. a fact we 19 time 6 That
927 used, finding properly as therein intended to have the was could such all the believe that based in count cent, meaning “ihcapacity,” provision since facts circumstances compensation purpose incapacity clearly of dis that the rate' The fact evidence. accomplished; especially so in rate of 6 at the fixed money should view of this in section “If due used for the detention incapacity once, finding, not at on the con does follow after condemn such not just eight support trary and infliction of or within tend to it would subsequently, compen thereof but sation shall day of deci does result is familiar rule reasonable. It usually begin eighth to accrue interest same rate of sions that commenced”; incapacity after the time the date cases tort allowed in cause of judg language following prior provisions the date until action arose incapacity adopting reason the same article to ment, the effect statute thus compensable. determining guide See not the This issue. able Herzing Ass’n, Employers’ conclusion is based on those ticle 8306 utes ar 17 sections of Ins. Tex. v. they Ap appear 1046, by Stat S.W.(2d) the Revised the Commission Cyc. p. cited; peals, to the amend reference and decisions 1925.without 6, adopted 1927, p. 84, assignment Accordingly, under ment of section now c. 857. discussion (Vernon’s 6), Ann. Oiv. St. art. § § is overruled. of action arose. And we be also, Complaint action made of the opinion Employers’ lieve in Texas allowing compensation for a of the court Downing (Tex. Ins. Ass’n v. August beginning 401 weeks manifestly appellant, S. W. cited at than on December rather distinguishable from this case on the facts injury. is insisted made basis of that decision. the date intervened between since 35 weeks August during The showed several totally disabled became latter date alleged incapacity months labor, Holloway they work, be deducted should received from the court, thus allowed total of 401 weeks annuity an or sick ben indemnity limiting amount of total In company provided efit which that employees Manifestly, appellant for all its contention of that 346 weeks. employment. anas incident to their cited 8306 are and 10 of article sections and also the party was in no sense a Civil of the court of decision arrangement, to that benefit to never contributed to the Employers’ Appeals in Texas Amarillo at fund, and therefore Downing, W. 112. v. Ins. Ass’n by Holloway have the benefits received applied read as follows: referred to statutes as a credit on the it owed amount policy him on the made -the basis of this paid compensation shall 6. “No *7 suit. v. Lawler See Zetsche Civ. an which does not this law for 907, S.W.(2d) and cases cited. there employee capacitate a of at the wages, earning hut from full week least one Holloway alleged pleading in his that beyond incapacity one week com- extends 1929, operation performed 19, the was on March eighth begin pensation the to accrue on shall unsuccessful, and he introduced testi injury. aid, day pital medical hos- The after mony tending support allegation; to that medicines, services, provided as predicate was a sufficient in hence’ his there supplied hereof, shall be as for in Section 7 compensation pleadings and evidence un according the terms to when needed and and provisions general of the Workmen’s der the incapaci- provisions Section If of said 7. Law, provided Oompensation as in section ty infliction at once after the does not follow 8306, 12b, if it shown be that was en art. eight thereof or within of the compensation. Appellant makes no titled to subsequently, compensation does result contrary, but deem it contention to the we n shall eighth day begin to accrue point proper of the de to note this view incapacity In commenced. date Casualty court Southern of this cision employee to shall be entitled Fulkerson, S.W.(2d) 911, opinion event v.Co. aid, hospital services medi- Conner, April 1930, the medical by 26, filed Chief Justice provided law.” in this cited, cines Ellis v. there United and the decision Guaranty Fidelity & Civ. States incapacity for work result- 10. “While each, 811, S.W.(2d) of which cases total, association ing is thqt in order to recover such it was held weekly injured employee pay com- shall general provisions under the cent, sixty equal pensation his av- to hernia, is the bur law that den when weekly wages, erage hut not more than $20.00 allege prove upon to the claimant is in no shall the case $7.00 less than nor that-, performed operation was unsuccess by compensation be period greater such covered ful. hundred and one four weeks than injury.” the date case, plain trial On the upon excepted apparent instruction of the court to the that it is the tiff believe We proof jury “injury,” the burden of word that that the to the articles of those face 1)28 kn;.w tlement, by preponderance of establish as we cannot in advance to proof to each whether or be the evidence an affirmative answer not the that issue will on questions 1, negative answer and a same as trial. the last by ground to No. on tbe issue suf Whether or not the evidence was provisions 12b, is it of article section findings ficient to of the employee entitling provided an the facts by issues under instructions definitely recovery for “must to hernia the court that the' same could be made proven In Board.” satisfaction' of the to the preponderance a mere of the evidence rather objection pointed it was out
xihat upon quantum proof by required than tion sec provision statutory sufficient it was not that that statutes, quot 12b article of the establish those facts above, question, ed becomes moot and there evidence, preponderance it of the mere fore will not be determined. go incumbent oh him necessary Nor is it for us to determine quoted required proof make such questions leading assignment merits of the provision statute. section of the of that propounded Westbrook, Dr. the witness objection the court made was overruled n objection may another be avoided on ruling. assigned to that has been error .and Likewise, appellant’s exception trial. to the the well settled the decisions pleading Magnolia alleged conspiracy anof between ' Supreme authori- Court of this state Company and the insur- Petroleum. an instruction to ties elsewhere that that the facts plaintiff’s ance will defeat recovery must relied on for discussed, allegations not be those since proved means more than to their satisfaction likely be eliminated on another trial. It is al- say proof mere must be that such unnecessary so other to determine the merits of an- evidence,, preponderance proof and that assignment Holloway’s testimony beyond a reasonable doubt. must be paid hospital the amount out for bills inci- v. Doose See Brewer operation March,' 1927, dent to since 323, and decisions therein There cited. any compensa- was not awarded Legislature au- that the had be no doubt can item, tion and as he no has made thority change well-recognized-gener- complaint court, of that action of the it rule, explicit al section as was done likely he will make claim therefor on an- And the courts 12b of article 8306. trial. other authority ignore no However, above, pointed for the error out Obviously statutory provision mandate. respect charge with the the court quantum proof quoted requires greater burden on issues 1 to inclu- preponderance of evidence. than a mere sive, judgment of the trial will be court sharply conflict- In case the evidence was reversed and the cause remanded. rup- ing as to whether suffered a Rehearing. as testified to ture on December On Motion for him; being record appellees’ rehearing, In motion for it that, finding would have warranted a earnestly provision insisted that sec- incapacity alleged labor waá but the Compen- tion 12b of article Workmen’s operation performed theretofore result of Law, providing entitling sation an ing that the facts n May, gall stones him employee recover for an result- being upon' definitely proven the state of Such the evidence in hernia “must issue, charge said board,” cannot be satisfaction does not *8 given appel-- change general so resulted'in no harm to the in rule civil that a cases Indeed, preponderance plaintiff lant. the was it must be said that under all 'of favor recovery; facts and circumstances evidence it is sufficient to sustain a reasonably calculated to requirement to but that is intend- appellant, showing any guide and is judge an absence of as ed a for the trial in deter- mining jury in the record that it did not have whether or not the verdict of the follows, therefore, plaintiff’s approved. Ap- that result. the in favor should be assignment pellee Settegast, 238, now under discussion must be v. Carl cites 237 S. W. following sustained, 239, under the Supreme authorities: in which the Court held (Tex. App.) ingraft parol upon v. Blackwell Com. Bell 765; App.) a suit to a trust a deed estate, charge jury Bain Peanut Co. v. Pinson Com. it real is error to to that the the to estab- 536; Recipro upon plaintiff Lumbermen’s burden is App.) allegation petition clearly Ass’n v. Wilmoth Com. cal S.W.(2d) 972; 12 lish the and Fidelity Floyd jury; v. Union though Casu to the satisfaction of the such is the rule in a court of that decision stated: even alty S.W.(2d) 363; equity. Com. 24 inBut Bailey (Tex. v. Com. holding Parker 15 S.W. reason of the is thus (2d) 1033. ingraft parol upon the ease is to be remanded Since for an- “The rule that to trust a trial, not other we shall undertake to deter- an instrument absolute on face the evi- its satisfactory the merits of a further contention that and mine dence must clear arose lump cog- warrant did not a sum set- a time when suits of this nature the evidence at were
929 5, part 2, Compensa- only chancery, all “Section In where Workmen’s nizable matters of courts of 283), (General p. fact, law, tried tion Law were c. Laws as well as the provides: questions chancellor, where conscience facts to the addressed themselves “ rights brought, ‘Whenever is such suit jury in such a the chancellor. The aid of liability parties shall be thereto findings, discretionary, cases was and their -by provisions determined act.’ of this binding aid, when called for such absolutely upon were Compensation, Honnold on vol. Workmen’s merely chancellor, pp. 167, 346, subject persuasive advisory, to be' appellees right “The -of recov- base their disregarded far as by In at his discretion. ery Compensation Act the Workmen’s rules announced the chancery of evidence thus alone, they they are en- law, they must show that should courts are rules of courts; but, terms titled within the regarded binding upon be in our merely the act.” them- rules address so far as these to the conscience of the chancellor selves Mingus Wadley, In Tex. v. exercising pass upon province facts Court, speak- Supreme S. W. they place evidence, weight no or ing through Cureton, Chief made Justice which, jurisprudence, whether in our the announcement: equity cognizable alone ease one general “The rule is that where the jury law, given is as a matter trial one at of the evidence is sufficient remedy are of action and enforcement its jury right, province of the where and the derived not from the common law issues to have the statute, statutory provisions are determining .the them absolute submitted to is mandatory exclusive, be com- and must subject only facts, the trial to review plied respects with in all is not or the action Appeals.” Court of Civil court and [Citing cases.] numerous maintainable. Appellee Reinhardt also cites the case of Nehring (Tex. having Compensation v. in which it struct the Com. S. W. “The Workmen’s Act (cid:127) rights provid- held that it error was created the ed the progress to be enforced jury remedy therefor, step that the burden each proponent maturity of a will to show to the satisfac- a claim -of from the was of adjudication tion of the that the testatrix time of the to its final mind; although Rev. mandatory requirement, sound Civ. in article necessary to the provided that “be- it Statutes exercise of ceeding statutory agencies. first and suc- jurisdiction probate, admitting it must fore proved a will to [Citing numer- satisfaction of the court” to the cases.]” ous executing at the testator present suit Since the action is held sound mind. In that case equitable relief, not for based on is common men’s nor provision to the article that the law, solely upon the Work but rests necessary probate quantum Compensation Act, an and since as will should be construed as direction Cureton, nounced many Chief Justice guide court, rather than- as opinion, authorities cited A like issues are it. when the submitted to employee claiming the benefits under the placed upon construction was Compensation comply Workmen’s Act must necessary 4632, requiring of article the facts strictly provisions in with its order to sus plaintiff to a of divorce to entitle decree nothing recovery, tain and since there is full to be established and evidence which pro indicating quoted i that act satisfactory the court. 12b, vision of section article was intend provides for suit Section of article 8307 .5 guide judge ed the the trial and not for party who dissatisfied interested ruling we adhere to the announced of the Industrial Accident with the decision original opinion in our on the now presented to it. The Board accordingly under discussion and overrule provisions that sec- is one of the appellees’ rehearing. motion for add willWe tion: *9 appellees’ if construction of that stat against “If final order of-the board is adopted, follow, logical ute be ly, that, then it would association, and not the association then though even the verdict of the employer bring set aside said the final shall suit to plaintiff’s should struction, inbe favor under an in ruling board, and decision was'upon the burden estab him to desires, and the court shall either event proof lish definite to the sat the issues such cause instead determine .judge jury, yet isfaction -of the the trial of the board den of trial de novo and bur- authority to would have and set aside the verdict party claiming shall be deny plaintiff opinion relief if compensation.” definitely proven facts relied on have not been satisfaction, Indemnity set at' In to his and thus American v. Dinkins naught statute which makes the the fol lowing judge of issues of is said: exclusive controverted fact.