[5] There is, however, an error in the judgment in this case which requires the reformation of the judgment. The jury found that plaintiff was totally incapacitated for a period of 504 days or 72 weeks. On this finding the court rendered judgment for plaintiff, allowing him compensation for said period at the rate of $6.30 per week. This judgment is for $1.30 per week more than is claimed in plaintiff's petition. The allegations of the petition setting out the amount claimed by plaintiff are as follows: "That the Industrial Accident Board for the state of Texas heard and adjudicated the plaintiff's rights and compensation as against the defendant, and found in favor of plaintiff, finding that he was entitled to the compensation of $5 per week, beginning on the 7th day of May, 1916, on account of the injuries sustained by the plaintiff while engaged by the Kirby Lumber Company. "That since sustaining the said injury, as alleged by plaintiff and found by the Industrial Accident Board, plaintiff's leg and foot have continued to pain him, and he is unable to work, being unable to walk without crutches, and plaintiff alleges that he is entitled to have and receive of the defendant the sum of $5 per week for a period of 300 weeks, as plaintiff will be unable to work and earn a living, as he was prior to sustaining said injury, and has been totally disabled by reason of sustaining said injuries as hereinbefore alleged. "Wherefore, plaintiff prays that the defendant be cited, and that upon a hearing hereof plaintiff recover of defendant the sum of $1,000, at the rate of $5 per week from and after the 8th day after said injury, and for all such other general and special relief as he may be entitled to, and for costs of court." It goes without saying that the plaintiff cannot recover compensation at a greater rate per week that that alleged in his petition. It follows from what we have said that the motion for rehearing should be granted, judgment of the court below reformed, as above indicated, and affirmed; and it has been so ordered. Reformed and affirmed. On Appellant's Motion for Rehearing. In a motion for rehearing presented by appellant our attention has been called to an error apparent upon the face of the record which requires a further reformation of the judgment of the trial court. In answer to special issue No. 5 the jury found that the difference between appellee's wages before and after his injury during the 33 days of his partial incapacity was $1.50 per week. Under article 5246m of Vernon's Sayles' Civil Statutes he was entitled to recover 60 per cent. of this difference, which amounts to 90 cents per week. Thirty-three days is 45, weeks, and at 90 cents a week the compensation to which appellee is entitled is $4.24. The portion of the judgment which allows appellee $26.10 compensation for this period is clearly wrong, and must be reformed as above indicated. The motion for rehearing has been given due consideration, and, except in the matter of this obvious error we think it should be refused; and it has been so ordered. COURT OF CIVIL APPEALS OF TEXAS. DALLAS. MILLERS' MUT. CASUALTY CO. V. HOOVER ET AL. (No. 8251.)* MASTER AND SERVANT WORKMEN'S COMPENSATION ACT; CORPORATION'S DIRECTOR SERVING AS EMPLOYEE, NOT EXCLUDED AS OFFICIAL. Under Workmen's Compensation Act (Vernon's Ann. Code Cr. Proc. Supp. 1918, arts. 5246-2, 5246-82), naming employees entitled to its benefits and excluding officers and directors of corporations, one under contract of hire, who is injured in the performance of his duties as superintendent and head miller, is not excluded from the benefits of the act, though he is also a director of the corporation employing him. (For other cases, see Master and Servant, Dec. Dig. § 361.) Appeal from District Court, Grayson County; Silas Hare, Judge. Proceeding by Louise E. Hoover, surviving wife of Guy Frank Hoover, before the Industrial Accident Board, for an award for his death, opposed by the G. B. R. Smith Milling Company, employer, and the Millers' Mutual Casualty Company, insurer. From a judgment affirming the award, the insurer appeals. Affirmed. Hamp. P. Abney, of Sherman, for appellant. RASBURY, J. The Industrial Accident Board, upon hearing, awarded Louise E. Hoover, and Kenneth E. and Francis L. Hoover, surviving wife and children, respectively, of Guy Frank Hoover, deceased, judgment against appellant for $5,400, payable $15 per week for a period of 360 weeks, upon the showing that Guy Frank Hoover lost his life while in the employ of the G. B. R. Smith Milling Company, which was a subscriber to the Employers' Insurance Association and at the time of the death of Hoover held a policy in appellant company protecting its employees. After the award appellant, in the time and manner provided by the Workmen's Compensation Act, brought this proceeding to cancel said award on the ground that Guy Frank Hoover was not an employee of the G. B. R. Smith Milling Company, within the meaning of said act, nor under the terms of the policy issued by appellant to the milling company. There was trial to jury, to whom the issues of fact were referred in the form of the usual interrogations for special verdict; but, inasmuch as the court directed the answers to be made to the interrogatories, we shall only state the facts which bears upon and control the single issue presented in the brief and presently stated. Those facts are not controverted in the evidence and are briefly these: The G. B. R. Smith Milling Company is a private domestic corporation and conducts a flourmill at Sherman. It had a board of seven directors, consisting of G. B. R. Smith, Guy Frank Hoover, and five others. G. B. R. Smith was its president and general manager. Guy Frank Hoo * Decision rendered, Nov. 8, 1919. Rehearing denied Dec. 6, 1919. 216 S. W. Rep. 475. ver was its superintendent and head miller. Generally his duties were to direct the operation of the plant machinery, the making of flour, overlook and direct repairs, and at times do the actual work in connection with such matters. He was without authority to employ and discharge servants, though he did at times exercise that authority to a limited extent. The ultimate authority to direct the mill and its operation, to employ and discharge servants, was reposed in G. B. R. Smith, the president and general manager, who employed Hoover and had authority to discharge him. Hoover received a salary of $165 per month. Whether any part of said sum was paid him as a director of the corporation the evidence does not disclose. Hoover was accidentally killed at the mill while engaged in the performance of his duties as superintendent and head miller. Thereafter within the time and manner directed by the act his claim was presented to the Industrial Accident Board, and the award indicated was made. The Workmen's Compensation Act (Vernon's Ann. Code Cr. Proc. Supp. 1918, arts. 5246-1 to 5246-91), after excepting from its provisions domestic servants and farm laborers, and providing that its terms shall not include persons, firms, or corporations employing less than three persons, or operating steam, electric, street, or interurban railways, etc., enacts that the employees entitled to the benefit of the act "shall mean every person in the service of another under any contract of hire, express or implied, oral or written," unless they be masters of or seamen on vessels, etc., and unless the employment is not "in the usual course of trade, business, profession or occupation of his employer." Articles 5246-2, 5246 82, vol. 2, Vernon's 1918 Supp. Tex. Civ. & Crim. Stats. The act also provides, which provision is an amendment of the original act, that "the president, vice president or vice presidents, secretary or other officers * * and the directors" of corporations who accept the act "shall not be deemed or held to be an employee within the meaning of that term as defined" in the act. Article 5246-83, vol. 2, Vernon's 1918 Supp. Civ. & Crim. Stats. The appellant contends that, since Hoover was a director of the subscribing corporation, he was not entitled under the provisions of the act quoted to the benefits thereof, regardless of what other relation he may have in fact sustained to the corporation, since he could in no event be an employee, within the meaning of the act. Stated otherwise, even though he was in fact an employee of the kind defined by the act as being entitled to its benefits, if he was also a director of the subscribing corporation, he was excluded from its benefits. We are unable to agree with the contention. The provisions of the quoted article, which exclude officials of the corporation from participating in the benefits of the act, we are convinced refer to them as such; that is to say, while they are engaged in the performance of the duties conferred on them by law, as, for example, as to directors, the general management and direction of the corporate affairs, and as to the officers, the exercise of those duties and powers conferred on them by the directors or the by-laws of the corporation. The article purports to deal with them in that respect only. It neither directly nor inferentially denies the right of such officials to have other and different relations with the corporation. Conceivably, and not unnaturally, officers and directors of corporations might be employed in the performance of duties of a character wholly distinct from and unrelated to those ordinarily exercised as such officials. The act as a whole neither denies them the right to serve in the capacity of an ordinary servant or employee, nor denies the corporation the right to engage their services in that particular. If, as matter of fact, they are so otherwise employed, and that the employment is such as to bring them within the definition of "employee" contained in the act, and while so engaged they are injured, they are, in our opinion, entitled to the benefits of the act What employees or serv ants are included in the definition, or what particular test is to be applied to determine that issue, will depend largely upon the facts of each case. In the present case it is not claimed that Hoover was engaged in the performance of his duties as director when injured. It is. in effect, conceded that his services were such as to raise the ordinary relations of master and servant, as it is also conceded that he was in the employ of the milling company under a contract of hire. Such being the facts, and having reached the conclusion that the article excluding corporate officials from the provisions of the act applies to them only as such, it becomes our duty to affirm the judgment of the trial court. Affirmed. SUPREME COURT OF UTAH. RETEUNA INDUSTRIAL COMMISSION. (No. 3397.)* 1. MASTER AND SERVANT--WORKMEN'S COMPENSATION ACT CONSTITUTIONAL. The constitutional right of the Legislature to enact a workmen's compensation law, having not only the object to secure compensation to an injured employee, or those dependent upon one killed by accident, but to relieve society of the care and support of the victims of industiral accidents, is not open to question.1 (For other cases, see Master and Servant, Dec. Dig. § 347.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION; REVIEW OF DETERMINATION OF COMMISSION AS TO COMMUTATON. In view of the objects of the Workmen's Compensation Act, embracing the protection of society as well as the protection of the injured employee or his dependents, the authority and discretion of the Industrial Commission, as the authorized agent of the state, in determining whether the interests of the parties would be subserved best by commutation of compensation or payment in a lump sum pursuant to Comp. Laws 1917, § 3145, is absolute, and not subject to review by the courts. (For other cases, see Master and Servant, Dec. Dig. § 417[5].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION; DENIAL OF COMMUTED COMPENSATION. Refusal by the Industrial Commission to approve a commuted or lump sum settlement with an injured employee rendered insane by the accident, in view of the possibility that the employee might recover, etc., held not arbitrary and unlawful. (For other cases, see Master and Servant, Dec. Dig. § 385[20].) * Decision rendered, November 14, 1919. 185 Pac. Rep. 535. 1 Industrial Commission v. Daly Min. Co., 172 Pac. 301; Industrial Commission v. Evans. 174 Pac. 825; Garfield Smelting Co. v. Industrial Commission, 178 Pac. 57. 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION; APPROVAL BY DISTRICT COURT OF LUMP SUM SETTLEMENT. In view of Comp. Laws 1917, § 3146, of the Workmen's Compensation Act, order of the district court, authorizing the guardian of an injured employee, rendered insane by the accident, to make a commuted or lump sum settlement with the employer, and to execute a release, held not even prima facie evidence of the reasonableness of the settlement, which, even in the absence of contrary evidence, the Industrial Commission was not under duty to approve, it not being within the authority of the district court to direct the guardian with respect to the amount of the compensation to be received, or when and how it should be received; such matters being within the control of the Industrial Commission. (For other cases, see Master and Servant, Dec. Dig. § 396.) 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION; REVIEW OF COMMISSION'S DETERMINATION OF FACT. Where there was testimony to support the conclusion of the Industrial Commission on a question of fact, the Supreme Court will not review the commission's finding." (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Original action by Barto Reteuna, guardian of Domineck Barda, to review compensation proceedings before the Industrial Commission of the State. Writ of review denied, and petition dismissed. Evans & Sullivan, of Salt Lake City, for plaintiff. Dan B. Shields, Atty. Gen., and J. H. Wolfe, O. C. Dalby, and Herbert Van Daw, Jr., Asst. Attys. Gen., for defendant. GIDEON, J. This is an original action in this court, asking for a review of certain proceedings before the Industrial Commission of this state in an action entitled Barto Reteuna as Guardian of the Person and Estate of Domineck Borda, an Injured Employee, Plaintiff, v. Independent Coal & Coke Co. The facts out of which this controversy arose are as follows. On or about April 1, 1918, one Domineck Borda was employed by the Independent Coal & Coke Company in Carbon county. On said date he was injured during the course of his employment, and the accident causing the injury arose out of such employment. These facts are not in dispute, but are admitted by both parties. As a result of such injury the mind of said Borda became deranged to such an extent that he is mentally incompetent. On or about April 12, 1919, the district court of Carbon county appointed plaintiff, Reteuna, guardian of the person and estate of Borda, and thereafter such guardian filed an application with the Industrial Commission, defendant here, asking for an award for said injury under the Workmen's Compensation Act of Utah. Comp. St. 1917, tit. 49. A hearing was regularly had on said petition on or about April 30th of that year. On May 26, 1919, an order was made, awarding to the petitioner therein $12 per week, and directing the Independent Coal & Coke Company to pay the applicant as such guardian that amount from and including April 12, 1918, that being ten days after the injury, "until such date as the commission shall by proper order change, modify, or discontinue such compensation, less the sum of $648, theretofore received by the applicant." It further appears that on or about August 23, 1919, said guardian presented his verified petition to the district court of Carbon county, in which it was set out that the Independent Coal & Industrial Commission v. Evans, 174 Pac. 825. |