Opinion
No. 294.
December 24, 1925. Rehearing Denied January 21, 1926.
Appeal from District Court, McLennan County; Giles P. Lester, Judge.
Action by Kate Graham and others against the Ætna Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Joseph W. Hale, of Waco, for appellant.
N. A. Coston, H. L. Taylor, and E. C. Street, all of Waco, for appellees.
This is a companion case with Ætna Life Insurance Co. v. Carrie Graham, No. 293, 279 S.W. 923, this day decided by us. The facts are practically the same, except in this case Carrie Graham presented her claim to the Industrial Accident Board and said board, on February 21, 1924, rendered a final award on her said claim, and March 7, 1924, Carrie Graham notified said board, the Thomsen Company, and appellant that she would not abide by said award, and she (Carrie Graham) filed this suit on March 15, 1924. Carrie Graham died in September, 1924, Kate Graham and Jesse Graham, father and mother of Carrie Graham, after the, death of Carrie, presented their claim to the Industrial Accident Board in due time, on which a final award was made, and notice given by them that they would not abide the award made by said board, and on January 5, 1925, they filed in said cause their second amended petition, in which they sought to recover $9 per week for 401 weeks as compensation by reason of the death of Carrie Graham, etc. Afterwards Kate Graham died and on March 12, 1925, appellees herein, Jesse Graham, the husband of Kate Graham, deceased, and father of Carrie Graham, deceased, and the other appellees, brothers and sister of Carrie, filed their fourth amended petition, seeking to recover $9 per week for 401 weeks by reason of the death of Carrie Graham, etc.
In answer to special issues, the jury found: (1) That Carrie Graham, in the course of her employment, received a personal injury; (2) that tuberculosis was the natural result or consequence of said injury; (3) that Carrie Graham received said injury in March, 1922; (4) that Kate Graham, the mother of Carrie Graham, deceased, was not dependent upon Carrie Graham for support during the time of the employment of Carrie with the Thomsen Company. The court entered judgment in favor of all the appellees against appellant.
Opinion.
The appellant issued a policy of insurance to the Thomsen Company for the benefit of their employés March 2, 1921, which expired March 2, 1922, and another such policy March 2, 1922, which expired March 2, 1923. The jury found that Carrie Graham received her injury in March, 1922, so we cannot tell definitely which of said policies was in force at the time she received her injuries, but as the amendment designating parents as beneficiaries, regardless of the question of dependency, did not become effective until in June, 1923 (Acts 1923, c. 177), it is evident, regardless of which policy was in force, that the amendment of 1923 has no application to this case, and that appellees' rights here must be determined by the Workmen's Compensation Law as amended in 1917 (Vernon's Ann.Civ.St. Supp. 1918, art. 5246 — 1 et seq.), for the reasons as stated in our opinion in said companion case. As this case was tried upon the erroneous theory that the amendment of June, 1923, applied, we think the case should be reversed and remanded. Ogg v. Ogg (Tex.Civ.App.) 165 S.W. 914; Scanlon v. Galveston, H. S. A. R. Co. (Tex.Civ.App.) 86 S.W. 930; Camden Fire Ins. Co. v. Yarborough (Tex.Com.App.) 215 S.W. 842. For disposition of the other questions involved, see in companion case, No. 293.
This cause is reversed and remanded.