(3) That on said date, and prior thereto, the Magnolia Petroleum Company had the legal right to insure its employees under the Texas Employers' Liability Law and the American Indemnity Company had the authority to write insurance thereunder and issue policies therefor, and the policy of insurance issued by the American Indemnity Company to the Magnolia Petroleum Company, insuring its employees under said liability law, including A. P. Dinkins, was legal, valid, and in force on September 30, 1917.

(4) The average weekly wages of the said A P. Dinkins was the sum of $28.75.

(5) Said A. P. Dinkins, deceased, left as his sole and legal beneficiaries his surviving widow, Mrs. A. P. Dinkins, and two minor children, Jack Dinkins and Emma Marie Dinkins.

(6) On September 30, 1917, the Magnolia Petroleum Company employed in its refinery at Beaumont 1,600 persons, and operated three shifts per day, to wit, from 12 at night to 8 in the morning, from 8 in the morning until 4 in the afternoon, and from 4 in the afternoon until 12 at night. A. P. Dinkins was in the shift that worked from 4 in the afternoon until 12 at night, and on that shift 300 persons were involved, 150 going off work and 150 coming on to work at about 12 o'clock at night. About 5 per cent of the employees of the refinery came to and from their work in automobiles, and quite a number came and went on bicycles and motorcycles. All employees at the refinery were required to enter and leave the refinery at the big entrance gate, where a watchman is stationed to register the employees and let them in and out, to and from the premises. There is only one road leading to said refinery gate or entrance; this road leaves the Beaumont-Port Arthur road at Madison street, and extends along Madison street, Grove street, and Burt avenue to the refinery gate. This road is graded up and paved, and, in addition to regular taxes, the Magnolia Petroleum Company contributed both labor and material at its own expense in the construction of this paved road. This is the only road leading to the refinery which is fit or suitable for automobiles, motorcycles, and bicycles, and is the only road used by the employees of the Magnolia Petroleum Company at said refinery who go to and from their work in automobiles and other vehicles. Frank Ellis was on September 30, 1917, an employe of the Magnolia Petroleum Company, and was on the shift which began work at 12 o'clock that night. A. P. Dinkins had quit work for the day, registered out at the refinery gate, and was going home riding on a motorcycle to secure rest and refreshment, and was traveling on said paved road leading from the refinery gate to the Port Arthur road. Said Frank Ellis was traveling on said road in his automobile to report for work, and while said Dinkins and said Ellis were traveling on said road as aforesaid they accidentally collided, about three-fourths of a mile from the refinery gate, and said A. P. Dinkins was killed as a result of the collision.

Said paved road leading from the refinery gate to the Port Arthur road is about one mile in length, and there are no paved roads or streets branching out or leaving this road leading to the city of Beaumont or its suburbs between the refinery gate and the Port Arthur road.

The accident in which A. P. Dinkins was injured occurred on one of the public roads of Jefferson county, and occurred about three-fourths of a mile from the Magnolia refinery, or the place where Dinkins was employed.

COURT OF CIVIL APPEALS OF TEXAS.
FT. WORTH.

U. S. FIDELITY & GUARANTY CO.

V.

DAVIS. (No. 9061)*

COMPENSATION

1. MASTER AND SERVANT-WORKMEN'S ACT-ATTEMPTED REPUDIATION AND AFFIRMANCE OF

AWARD.

An injured servant could not, under Workmen's Compensation Act, pt. 2, § 5 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-44), repudiate and abrogate the ruling of the Industrial Accident Board awarding compensation, and at the same time treat it as effective and binding on the employer, and seek under section 5a to hold it liable for a lump sum settlement of his claim by reason of its failure to comply with the mandates of the board.

(For other cases, see Master and Servant, Dec. Dig. § 3912, New vol. 7A Key-No. Series.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION. ACT-PROVISION OF JUDGMENT FOR EXECUTIONS.

In a workmen's compensation case, the judgment should have provided for the issuance of executions to collect the various installments of compensation awarded as they matured, since clerk cannot be made the judge to determine what character of process he shall issue. (For other cases, see Master and Servant, Dec. Dig. § 411.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FORM OF JUDGMENT.

In a workmen's compensation case, the form of judgment proposed by the servant, embodying the right and power of the court to review it, and diminish, increase, or terminate the liability of the insurer in accordance with part 1, § 12d, of the Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-25), with the right in the insurer at any time to redeem its entire liability by payment of a lump sum on agreement with the servant, with the approval of the Industrial Accident Board, in accordance with part 1, § 15 (article 5246-33), held proper, with modification of provisions as to executions and the approval of the trial court of any lump sum settlement.

(For other cases, see Master and Servant, Dec. Dig. § 411.)

4. MASTER AND SERVANT-WORKMEN'S

.

COMPENSATION ACT-POWER OF COURT OVER AWARD-LUMP SUM SETTLEMENT.

In view of Workmen's Compensation Act, pt. 2 § 5 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-44), a court trying a workmen's compensation case by implication has the power given the Industrial Accident Board by part 1, § 15 (article 5246-33), to approve any agreed lump sum settlement, and the power given it by section 12d (article 5246-25)

*Decision rendered, March 22, 1919. Rehearing denied April 26, 1919 212 S. W. Rep. 239.

to review, terminate, diminish, or increase an award for compensation made.

(For other cases, see Master and Servant, Dec. Dig. § 408.)

6. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACT-BASIS OF AWARD-AVERAGE WEEKLY WAGES. Where an injured servant had worked in the employment in which he was engaged when injured for several years before injury, under Workmen's Compensation Act, pt. 4, § 1, subsec. 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-82), his average weekly wages, and not the average weekly wages of other persons similarly engaged, were the proper basis for determining the amount of compensation.

(For other cases, see Master and Servant, Dec. Dig. § 385[5].)

Appeal from District Court, Denton County; John Speer, Judge. Proceedings for compensation under the Workmen's Compensation Act by W. W. Davis against the J. W. Thompson Construction Company, the employer, and the United States Fidelity & Guaranty Company, the insurer. Compensation was awarded, and the insurer appeals. Judgment reformed and affirmed.

Seay & Seay, of Dallas, for appellant.
Ed I. Key, of Denton, for appellee.

DUNKLIN, J. W. W. Davis was an employe of the J. W. Thompson Construction Company, which was a subscriber to the Workmen's Compensation Act, appearing in full in the acts of the Legislature of 1917, p. 269 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), and held a policy of insurance in the United States Fidelity & Guaranty Company, issued according to the requirements of the act, and which made the insurer liable for compensation to the employes of the Thompson Construction Company for injuries sustained by them while engaged in such employment. On February 1, 1918, the Industrial Accident Board, with whom Davis had filed a claim for compensation, awarded him compensation to be paid by the insurer in the sum of $15 per week for the injury which the board found had totally incapacitated him for work, said weekly allowance to continue during the existence of such total incapacity, not to exceed, however, the period of 401 weeks, and subject to modification or termination in accordance with the provisions of the act.

Davis had attempted to procure an order allowing him compensation in a lump sum rather than in weekly installments in accordance with the provisions of section 15, pt. 1, p. 280, of the act, upon the plea that, as he had a wife and three small children to support, the oldest being only 12 years of age, and as he was wholly incapacitated to work himself, a manifest hardship and an injustice would be done him if his compensation was fixed at even the maximum weekly allowance authorized by the act. And when that request was refused he, within 20 days after that decision by the Industrial Accident Board, gave notice to the board and to the insurer that he would not abide by said ruling, and immediately instituted this suit to recover compensation under the act, as was his right to do under the provision of section 5, pt. 2, p. 283, of the act. In his petition, filed in this suit, he sought to recover compensation in a lump sum as he did before the Accident Board, and on the same grounds. In the alternative he prayed that, if he was not entitled to a lump sum settlement, then he should be awarded compensation in the sum of $15 per week for 389 weeks. Plaintiff further alleged that he had presented his claim to the Industrial Accident Board, and that said board had awarded him compensation which the

defendant had refused to pay in accordance with the terms of that decision, although defendant was duly notified of plaintiff's dire distress and urgent need of such compensation for the support of his family.

In both counts of his petition plaintiff sought to recover exemplary damages in the sum of $4,000, as well as actual damages, which in each count was fixed at the sum of $6,000; the claim for exemplary damages being predicated upon an allegation of the construction company's "negligence and willful disregard for this plaintiff's rights in causing the said injuries."

It was further alleged that plaintiff has the right to a lump sum settlement by reason of the fact that the insurer had, without justifiable cause, failed to pay the weekly allowances made by the Accident Board as they matured.

Judgment was rendered decreeing a recovery by the plaintiff of $22 per week for 265 weeks, after allowing the defendant credit for $180 which it had already paid prior to the trial under the ruling of the Industrial Accident Board. But one-third of the recovery was awarded to plaintiff's attorney for his services in prosecuting the suit. From that judgment the defendant has prosecuted this appeal.

The trial was before a jury, who returned a verdict, such as is indicated by the judgment, upon a general charge submitted to them by the trial judge.

[1] By section 5a, pt. 2, p. 284, of the act it is provided that, should the insurer, without justifiable cause, refuse to make prompt payment of the assessments decreed by the. Industrial Accident Board as the same mature, then the injured employe or his beneficiary shall have the right to mature the entire claim and to institute suit thereon to collect the full amount of the award, together with 12 per cent. penalty and attorney's fees. While plaintiff did allege in his petition such a failure on the part of defendant, coupled with an allegation of his right thereby to mature the entire amount of his claim, yet the trial judge did not submit to the jury the issue whether or not the defendant had, "without justifiable cause," refused to pay said awards, and no complaint is made by the appellee here of the failure of the court to submit that issue. Furthermore, as shown by plaintiff's petition, he was not willing to abide by the decision of the Industrial Accident Board, and instituted this suit under the provisions of section 5, pt. 2, p. 283, of the act, according to the terms of which the decision of the board was thereby abrogated, and exclusive jurisdiction to determine the controversy was vested in the court in which the suit was instituted. Plaintiff could not thus repudiate and abrogate the ruling of the Industrial Accident Board, and at the same time treat it as effective and binding upon the defendant and seek to hold it liable for a lump sum settlement of his claim by reason of its failure to comply with mandates of the board. The only basis for a verdict in plaintiff's favor for a lump sum settlement submitted in the court's charge was the issue whether or not a manifest hardship and injury would result to the plaintiff if he were not allowed that relief in accordance with the provisions of section 15, pt. 1, p. 280, of the act, and no complaint was made by the plaintiff of the charge of the court in thus limiting his right to recover damages in a lump sum to that theory of his pleading.

In various sections of part 1 of the act it is provided that the Industrial Accident Board shall allow compensation for the injuries received by an employe of a subscriber to the act, and the rules for computing the compensation are prescribed. Section 10, pt. 1, p. 274, of the act reads as follows:

"While the incapacity for work resulting from injury is total, the association shall pay the injured employe a weekly compensation equal to sixty per cent. of his average weekly wages, but not more than $15.00