Garrett v. Texas Emp. Ins. Ass'n, 12025

• Decision Date: 28 December 1949
• Docket Number: No. 12025,12025
• Citation: 226 S.W.2d 663
• Parties: GARRETT et al. v. TEXAS EMPLOYERS INS. ASS'N.
• Court: Texas Court of Appeals

Page 663

226 S.W.2d 663

GARRETT et al. v. TEXAS EMPLOYERS INS. ASS'N.

No. 12025.

Court of Civil Appeals of Texas, San Antonio.

Dec. 28, 1949.

Rehearing Denied Feb. 1, 1950.

Guittard & Henderson, Victoria, for appellants.

Kemp, Lewright, Dyer & Sorrell, Corpus Christi, for appellee.

NORVELL, Justice.

Appellants' statement of the nature and result of the case is as follows:

'This is a workmen's compensation case, the facts being undisputed and mostly stipulated as follows:

'On August 21, 1943, Johnnie Garrett received an accidental injury to his head while working in Victoria County, Texas, within the scope of his employment with Rowan & Hope, Inc., whose workmen's compensation insurance carrier at the time was appellee. His average weekly wage was stipulated to be $45.00 which will produce the maximum payments contended for by appellants in this case. Garrett never worked again for Rowan & Hope, Inc., and on October 6, 1947, he died as the result of his previous injury, leaving appellants as his sole beneficiaries under the Workmen's Compensation Act. On the date of Garrett's death appellee was likewise the workmen's compensation insurer of Rowan & Hope, Inc. Between the date of his injury and his death appellee paid Garrett $2,860.00 in weekly payments, and on October 3, 1946, made a final settlement by paying him an additional sum of $4,000.00, making a total of $6,860.00. Appellants recognize that such sum must be deducted from the maximum benefits to which appellants as Garrett's beneficiaries are entitled to receive under the Workmen's Compensation Act. Appellants' claim was duly presented to the Industrial Accident Board which made its ruling from which they appealed by this suit in the court below. The Industrial Accident Board and the court below trying the case without a jury ruled that the appellants recovery was governed by the maximum weekly rate of $20.00 as provided by the Workmen's Compensation Act in effect when Garrett was injured, rather than a maximum weekly rate of $25.00 provided for by the 1947 amendment to such act which was in effect on the date Garrett died. The result was a judgment for appellants for the sum of $340.00 which is the difference between 360 weeks at $20.00 a week and the $6,860.00 already paid to Garrett.'

The above statement is accepted by appellee as correct with an addendum that the Workmen's Compensation Insurance policy issued by appellee to Rowan and Hope, Inc., and in force when Johnnie Garrett was injured, expired on January 1, 1944. As above pointed out, Garrett was injured upon August 21, 1943, and thereupon ceased to be an employee, in that he performed no further services on behalf of the company.

Appellants present one point of error, which reads as follows, to-wit: 'The trial court erred in its conclusion of law that the applicable compensation rate to be applied in this case is $20.00, the rate provided for by the Workmen's Compensation Act on the date of the injury to Garrett, rather than the rate of $25.00, the rate provided by such act as amended on the date of the death of Johnnie Garrett on October 6, 1947.'

In reply to this point, appellee contends that, 'All rights available to appellants under the compensation statute must be determined by the appellee's contract in force at the time of the employee's injury.' (Appellee's counter point No. One.)

Appellants' argument seemingly regards the obligation of the workmen's compensation policy as being one binding the insurance carrier to pay such amounts as may be provided for by statute, subject only to the proviso that the statutory rate of compensation sought to be applied shall have been established prior to the time the cause of action arose.

A claim for death benefits following a compensable injury is a separate claim from that based upon the injury itself. The cause of action based upon death arises when the death occurs as a result of the injury. Article 8306, §§ 8, 8a and 8b, Vernon's Ann.Civ.Stats.; Texas Employers' Ins. Ass'n v. Phillips, 130 Tex. 182, 107 S.W.2d 991; Traders & General Ins. Co. v. Baldwin, 125 Tex. 577, 84 S.W.2d 439; Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046; Maryland Casualty Co. v. Stevens, Tex.Civ.App., 55 S.W.2d 149, wr. ref.

However, it does not follow that the appellants as beneficiaries under article 8306, §§ 8, 8a and 8b, are entitled to recover at the maximum rate of $25.00 per week under the 1947 amendment of Article 8306, § 8, Acts 1947, 50th Leg., p. 521, Ch. 307, § 1, which was...