Texas Indemnity Insurance v. Middlebrook

This per curiam is written in view of the statement in the opinion of the Court of Civil Appeals (112 S.W.2d 311) to the effect that there is "confusion existing * * * in the Supreme Court" in that Vestal v. Texas Employers' Ins. Assn., (Com. App.) 285 S.W. 1041, and Southern Surety Co. et al. v. Arter, (Com. App.) 44 S.W.2d 913, are in conflict. In the case last cited this Court affirmed the judgment of the Court of Civil Appeals dismissing the cause, but not for the reason that the award made by the Industrial Accident Board was not such final award as would support a judgment in a suit to mature same. The judgment of dismissal was affirmed on the ground that the "Southern Surety Company of New York, admittedly not a party to the proceeding before the Industrial Accident Board," was not an interested party, within the meaning of the compensation statute providing for a review of awards made by the board. The question upon which the Vestal case was turned by the Court of Civil Appeals, that is, whether the award itself was an appealable order, was not reached by this Court and was not decided because not necessary. There is therefore no conflict between the opinions of this Court in the two cases above named. Both are correct.

The opinion in the Vestal case controls the disposition of the present case, and the Court of Civil Appeals was not in error in following it, and holding the present award a final one.

The opinion in Pollack v. Pollack, (Com. App.)39 S.W.2d 853, has no application in this case, which is governed by the statutes discussed in the opinion. Application for writ of error is dismissed — "W. O. J."

Opinion delivered March 16, 1938.