*1 512 logically each hernia follows from this that

employee, occurrence as result of one sustained, upon operation one is suc- a hernia December 17th sustained cessful, brought another one occur- side, about either week later as result and a section, other rence a as defined in the or a hernia occurrence sustained occurrence, injuries both operated upon separate for second are side. He was each, operation employee successful. for which is entitled hernias and the 26 compensation. compensation of sought recover 26 weeks result he claim- carrier each hernia. weeks for Appellant lays beginning stress both recovery for statute limited 12b, clause of Sec. which reads: all weeks recovery one a 26 hernias to * * * claims must be hernia compensation. ”* * * definitely proven then fol- requirements lows four re- distinct sustaining reaching its conclusion In covery argued allowed. It is held that Supreme Court employee the phrase injuries “all claims” all un- groups may injury and that specific hernia is injury. der this section as one We do not injury.” a “schedule designated properly be Rather, give meaning. these words such the court’s it was said Following this section, they synonymous as used are S.W.2d) “It : of 152 opinion (p. 1103 phrase “every with the claim”. there that when appears well settled be injuries, for independent more are two or the trial court is affirm- a scheduled there is each of ed. may be an award compensation, 549.” p. Jur., Corpus § for each. up in of facts No statement from the clear case, it is present separate and were two there briefs

distinct hernias. construing 12b of Sec. Art. ALLISON, Appellant, keep we should mind Compensation Act is construed

Workmen’s employee. liberally in In so favor of LIQUID COMPANY, FERTILIZER GULF that Sec. 12b Art. doing we hold Appellee. V.A.T.S., provides “scheduled No. 16273. compensation” (within the quoted language Long from the above Appeals Civil of Texas. Court of hernia, upon which each case) Fort Worth. thoughtful A operation was successful. 5, 1962. beyond shows ma this section reading of apply to and deal that its terms terial doubt Rehearing Denied Feb. words, hernia. The “the with three distinct times in the hernia” is used phrase in referring And to this

section. is found the paragraph concluding phrases These show

phrase “such hernia”. to define the section was intended parties single, where a

rights of dis must, therefore, It hernia is involved.

tinct implied therefrom each distinct invokes the

hernia said sec separate and distinct injury. It *2 of number the

only approximately one-half delivered. pounds plaintiff sold it swore Furthermore, by allegations affirmative the same pleadings way filed cross-ac- of tion, etc., counterclaim, set-off the defendant contended that contract the agreement parties, antedating of the the time of the pursuant deliveries and to which the made, deliveries action obligated were plaintiff’s and above mere over sale delivery. connection de- fendant plaintiff agreed claimed that to the and attempted guide to and control the mode injected fertilizer was irrigation defendant, rate waters of the of injection, etc., plaintiff acted —and pursuant agreement, to such negligently but injected approximately it double the amount fertilizer to admit 50 lbs. of per fertilizer acre, burning damaging the growing crops defendant, whereby he acre, yield per sustained a of cotton loss profits and a corresponding other- loss wise to have been realized. Cleburne, Anderson, Thomp- & Anderson Shannon, Walker, Arch son, Smith & Upon the call of case for trial both Gilbert, Worth, appellant. B. Fort parties’ causes of action were ascertainable upon pleadings. from their Plaintiff’s was Naylor, Nay- Dennison & and Richard D. upon its account. Defendant’s was sworn lor, Pecos, appellee. destroy the purporting to a counter-affidavit efficacy plaintiff’s prima facie account as could be estab- evidence on which its case MASSEY, Chief Justice. set-off, by way lished,- plus allegations Liquid Company, Gulf Fertilizer d/b/a T.R. counterclaim and cross-claim under Western Chemicals suit on as The circumstances were C.P. 97. under of Texas plead his require to have defendant to 185, against Rules of Civil Procedure plaintiff intend- against if ever he delivery, Allison. Plaintiff averred the so, “compul- and it amounted to a to 29,- under purchase, contract of sale and purview sory counterclaim” price 540 lbs. of fertilizer at a De- stated. section fendant, admitting price that the stated was correct, before time for de- proceeded, attacked amount delivered Trial pleadings cross-action, the court decided set- rest his case way to fendant counterclaim, Essentially the record warranted sev- off and state etc. 29,540 affirmative case was the defendant’s contention that of the erance plaintiff from the suit of lbs. of fertilizer approximately were double applicable provision of agreed plaintiff to be under taken, in that the quantity An order measure of to effect agreed was suffi- T.R.C.P. further cient The court fertilizer decided to 50 lbs. entered. thereof record each acre of the grow- of defendant’s land in the state cotton, proper to take ing calculation such that of which would be was char- jury equity, possess or in essential instruct must

case from and to any appeal will finality acteristic in favor of return a verdict “Appeal lie Tex.Jur.2d, p. on sworn therefrom. 3 *3 “Appealability Error-Civil”, III, pending leaving defendant’s — Af- B, of Judgments Orders”, such Accordingly “As sub. cause to be tried. 76, by verdict Finality Judgment”, fected sec. returned done and the en- general”. court return. The was instructed to The judgment such verdict. tered appeal The is dismissed. appealed. here, a mo- plaintiff, appellee RENFRO, (dissenting). Justice believe appeal. We to dismiss up in such set

we not reach the reasons The defendant’s cross-claim Appeal, giv- appellee’s Dismiss Motion the court was severed required is in- Everything the record is such that dismissal en a new docket number. our premise of for other reasons. The volved in become never is case has entered holding disposed judgment inof pur- judgment subject ripe appeal in is the judgment an the court appellee’s majority portedly appeal. rendered on Therefore, of this only, and interlocutory an judgment as treating is said account is error judgment judgment appealable final interlocutory not a final It is a order. 301, rule which court. treated this should be so Ann. repealed had Vernon’s its source

Civ.Tex.St., art. 2211. an- Court, opinion Supreme in an having a direct questions

swering certified held posed, has

bearing the situation trial proceeded to

that where there has plead- made on the case

cause in which ascer- parties involves:

ings due right and plaintiffs’ tainment of al., Appellants, et Eddie CUNNINGHAM thereon; defendants’ ascertainment (b) v. (c) thereby; right and amount due Texas, Appellee. The STATE of from smaller judicial deduction of the recovery- (to and award larger amount 16003. No. balance, any entitled) of the party Appeals of Texas. of Civil Court disposition of judgment rendered Dallas., an inter- party would right in the pointed out judgment. locutory 5, 1962. lawfully levied execution could be case no Rehearing 2, Denied Feb. character of carrying any Harrell, execution. See Nalle and, on sub- 12 S.W.2d Tex. Nalle, Myers appeal, H. & v. sequent Co. Galveston), 24 S.W.2d (Tex.Civ.App., provision law under which

There is no

appeal provided under these circumstanc- statutory exceptions, an With certain

es.

order, decree, judgment or whether at law