"It is agreed by the parties to this suit that, at the time of the death of J. Scott Lowry, the Tom Padgitt Company had more than three employés, and on said date carried a policy of insurance with the United States Fidelity & Guaranty Company of Baltimore, Md., of the kind required and permitted by the Employers' Liability Act of the state of Texas, and that said Tom Padgitt Company was a subscribing company, and had complied with all of the requisites of such act, and at the time of the death of said J. Scott Lowry said policy of insurance, issued by said United States Fidelity & Guaranty Company, in compliance with the provisions of said Compensation Act, was in full force and effect; that the United States Fidelity & Guaranty Company has a permit to do business in the state of Texas, and has complied with all the requirements demanded of such companies, and is authorized and permitted to issue the kind of policy above described, which was issued to said Tom Padgitt Company.
"It is further agreed that due notice and claim of beneficiary was made in the time required by law by Mrs. J. S. Lowry, to the Industrial Accident Board of the state of Texas, at Austin, on account of the death of J. S. Lowry, and that all requirements of law in that regard were complied with.
"That at the time of the death of said J. Scott Lowry his average weekly earnings were, and had been for 1 year previous thereto, an aggregate of $1,089.93 per year, and an average weekly wage of $20.95.
"That said J. Scott Lowry was killed in Coke county, Tex., on February 11, 1918, by the overturning of his automobile.
"That on August 17, 1918, said Industrial Accident Board met and awarded on said claim, and within the time required by law; that said United States Fidelity & Guaranty Company gave Mrs. J. S. Lowry and the Industrial Accident Board of the state of Texas all required legal notices incident to appeal from said award, and did within the time required by law appeal from and file suit in the district court of Brown county, Texas; said notice to said Mrs. Lowry and said Industrial Accident Board contained all necessary legal prerequisites of such notice that it was not willing, and did not consent, to abide by the ruling of said board, which was served within the time required by law.
"That J. Scott Lowry left no minor children, no dependent parents nor grandparents, nor stepmother, and no dependent parents or dependent brothers and sisters, and that only his widow, the defendant, Mrs. J. S. Lowry, was dependent on him for a livelihood, and that he contributed support to no one except to the defendant, Mrs. J. S. Lowry.
"The award of the Industrial Accident Board was also introduced in evidence over the objection of appellant, as hereinafter appears.
"F. E. Goodman testified as follows:
"`My name is F. E. Goodman. My age is 49, and my residence is in Waco, Tex. I am a farmer, and also vice president of the Tom Padgitt Company of Waco, Tex., wholesale saddlery people. I have been connected with the Tom Padgitt Company for about 30 years.
"`I knew J. S. Lowry in his lifetime, and he was connected with the Tom Padgitt Company. Mr. Lowry was employed by the Tom Padgitt Company as a traveling salesman in West Texas on a commission basis, and had been so employed for several years prior to his death, his duties being such as are ordinarily incident to such work, and he traveled both on the train and in an automobile, principally in the latter.
"`Mr. Lowry resided and made his headquarters at Brownwood, and traveled as far north as the Panhandle, and as far south as Rock Springs, in Edwards county, and, as to how far west he would go, that was optional with him. In covering the territory in question he did not travel under the directions of the Tom Padgitt Company, as the company did not instruct him when and where to go, and Lowry used his own automobile, and paid all of his expenses incident to his traveling, and used his own discretion and judgment as to how and when he should travel, and also as to where he should travel in the territory in question.
"`Between the 1st and 5th of each month, the company settled with Mr. Lowry according to the gross sales made by him and accepted by said company, during the previous month, on a basis of 7½ per cent. average commission.
"`There was nothing in the contract with Mr. Lowry which precluded or prevented him from representing any other company or companies, or carrying any other line that he might decide to handle.
"`Mr. Lowry fixed his own time, and when and where he should travel in the territory in question.
"`There was nothing to prevent Mr. Lowry from carrying passengers in his automobile for a consideration and receiving such consideration. He did not work on a salary, but worked on a commission as fully stated above. I originally made the contract with Mr. Lowry on behalf of the Tom Padgitt Company, and the original contract was in writing, as I recollect it, but afterwards from year to year the contract was either renewed verbally or by correspondence, and for the last few years of his employment there was no formal written contract. The original contract and the subsequent renewals of same had been in existence during the period Mr. Lowry traveled for Tom Padgitt Company, that is, for several years before his death. He first traveled in a horse and buggy; he then bought an automobile. He sold this automobile and bought another, and was then given some railroad territory, in which he covered a few towns on the train, but the most of his territory was covered by automobile, and
the machine was his exclusive property. The Tom Padgitt Company did not own any interest in the machine, nor in any way connected with it. Mr. Lowry's agreement with the Padgitt Company was to work this territory as in his judgment he thought best; the matter was entirely in his hands to go and come, day or night, in any way that he saw beneficial; and for such orders as he secured from the trade in that territory that were O. K.'d and approved for shipment by the company and were shipped he received for his services a 7½ per cent. average commission for such orders as were shipped by them, the payment of this commission being paid Lowry by check on Waco between the 1st and 5th of each month following the date of sale, as the records of the Padgitt Company showed that they had shipped of the sales made by Lowry. Mr. Lowry was under his own management as to traveling in the territory. He was allowed to carry such other lines as he wanted to carry. He was allowed the privilege of discontinuing his services at any time, and the Padgitt Company was allowed the same privilege, to discharge him at any time his services were not satisfactory, or that they wanted to put any one else in that territory. The only obligation on the Padgitt Company's part was that their line of goods was not to be sold by any other salesman in that territory as long as Mr. Lowry represented them in the same territory. He was further allowed to carry anybody with him in his car, as it was his car. The upkeep and all expenses incident to his traveling in the territory were to be paid out of the commissions so far as the Padgitt Company was concerned, as they were not interested in any debt of any character nor had any liability on the part of Mr. Lowry so far as the Padgitt Company was concerned.
"`Mr. Lowry covered some territory that he selected, and some of the territory covered by him was designated by the company; that is, as already stated, his territory extended on the north to the Panhandle, and on the south to Rock Springs, and Brownwood on the east, but his territory was unlimited on the west until he reached El Paso.
"`Prices and terms were to be made by the Padgitt Company at all times; Lowry had nothing to do with making the prices except according to price lists and other directions furnished by the Padgitt Company, and the company forwarded him price lists whenever there were changes in the market.
"`The Padgitt Company passed on the responsibility and solvency of the parties to whom Lowry made sales, and his sales were made and orders taken subject to approval by the company when the orders went into the house.'
"Mrs. J....
