or snapped in my bowels. It was painful and made me sick at my stomach. I was about 50 or 75 yards from the carpenter shop, and I took my tools and went to the shop, and laid down on a bench. About that time Mr. Green, my helper, came along, and he and I worked together to relieve my pain. He rubbed my stomach and tried to help me get out of misery, but couldn't do it, and about that time my superintendent, Mr. Leonard, came along, and he sent me down to the barn, got a buggy and started me to the doctor's office."

He further said that the doctor, who was Dr. Sappington, put him on the operating table, but could not do anything for him, and called up Dr. S. Webb and made a date to perform an operation on him at the hospital in Dallas; that the first trouble or hernia never gave him any pain at all, but that the hernia for which he was suing made him very sick at the stomach and the pain caused by it "was like as if I had had a knife stuck in me." that Dr. Sappington told him that if he did not have the operation performed at once, he would most likely die from blood poisoning; that Dr. Sappington called his trouble hernia, but that he had always called it rupture; that the first rupture occurred in 1910 while he was framing a roof for a school building; that he was raising the head rafter, and the wind blew him down, and the rafter fell across his stomach and caused the hernia; that this old hernia was not giving him a particle of trouble when he received the new hernia; except the inconvenience of wearing a truss; that at the time the new injury of hernia occurred the truss had not slipped off; that when the new injury occurred it hurt him so bad that he went to the carpenter's shop.

Dr. Sappington testified, among other things, that in September, 1917, he was connected with the Texas Portland Cement Company as its resident physician and surgeon; that he recalled the accident to the appellee Ross on September 21, 1917. That appellee told him he had been injured and was having some pain; that he examined appellee and found he was in pain; that he also discovered that appellee had suffered a hernia which he could not reduce, and that he advised an operation immediately; that there were two openings, two separate and distinct openings, and that in reality there were two hernias; that the old hernia was giving no trouble, because the gut was loose in there and would slip back and forth; that "a rupture or a hernia is the protrusion of the loop or kink or piece or particle of tissue through the abdominal opening"; that when appellee arrived at his office he found two protrusions; that he found an old hernia and then just a little above, "say about half an inch," he found another hernia, a new one; that he knew one of them was a hernia, but did not know what the other was, "and none of us knew until we opened it and saw it" and then they found that both of them were hernias: that there was a hernia prior to the time appellee got hurt the last time; that the operation was performed for the new nodule; and that the old hernia did not contribute to the new hernia's existence. Dr. Sappington further said that he could not say that appellee was not more susceptible to some trouble down there from the pre-existing hernia because he did have the old hernia, but that it would be very hard to say that he was weaker in that place than a normal person. that a man who has hernia is not as good as a man that has not got one, but that he could say with a reasonble degree of accuracy that the present hernia, "the thing for which we operated." did not exist before the injury, because, if it had, with this tissue down in there long enough, gangrene would have set up, because the blood supply was cut off; that from this he could say that this new hernia had not existed very long when he saw appellee; that about 97 per cent. of hernias "come without violence and 3 per cent. of them come from traumatism."

Dr. Webb testified, among other things, as follows:

"I am engaged in the general practice of medicine as well as surgery. I am not and have not been connected with the United States Fidelity

& Guaranty Company in any way. I am not and have not been connected with the Trinity Portland Cement Company. I know the defendant, W. T. Ross. I performed an operation on Mr. Ross, together with Dr. Sappington. I did not get a history of the case. He had a knot or a rupture there, and I just took him to the operating room and put him under a general anesthetic and opened him up and found two hernias there, or a rupture of the big sack with a lot of adhesions, and we found a little opening. I found two openings in this hernia with a small amount of omentum. That was all on the inside of the abdominal cavity. The big sack was old, and there was a lot of adhesions around it. The smaller sack was very small, with a little piece of omentum; that is, fat, that comes from the intestines. That was inside of that sack, and that was what caused his pain. There was just one big sack with a little small opening; one big sack with one small opening in it. The sack is a part of the lining of the abdominal cavity that goes down into the opening. I would call what I found two distinct sacks. I don't know whether to call it two separate and distinct hernias or not. It was just one hernia. The bigger sack was very thick and adhered; the smaller sack was not adhered. It is impossible for me to say whether that existed prior to the present injury or not, or at the time, or anything about it. I couldn't say, and I don't believe anybody else could say. There was one hernia with two sacks or two openings. A hernia did in fact exist there prior to the present injury. I make a specialty of surgery. I guess I have performed about 150 or 200 operations on men for hernia. I do not think an injury produces hernia at all. I believe it is a congenital condition. In abnormal conditions and under abnormal circumstances a hernia will be produced there. I have seen one or two cases where a man's side would be torn and he had a big hole torn there which caused a hernia. That was where the hernia was caused by external violence. I think it is possible that a hernia can be produced by an injury in this way; if he has got a hernia there, the injury will make it larger, and it is apt to do so. But, in my opinion, the injury itself does not primarily produce the hernia at the start. It has got to exist before the injury will effect in one way or the other."

On cross-examination this witness said:

"There were two openings there, and a protrusion in each. One of them had many adhesions around it indicating that it was an old hernia. That one was in the big sack. It was in the inguinal canal right here (indicating). As well as I remember, the one he complained of when I saw him, or the new one, was right above it; I should say about a quarter of an inch. A hernia is a protrusion of the intestines, or some part of the intestines, or the membrane around them, through some opening. If you had two openings and two protrusions, you would have but one sack. You can call it two distinct hernias or a hernia. That is what I said just now. He did have two openings there. Sometimes we find two openings coming through the same ring. But in this case there were two separate and distinct sacks. I was not called upon and did not take particular notice or observe the particular conditions or the history of the case, or whether this was a new or an old condition. I just remedied everything that I thought proper. This small opening had the indication of being a new one through which this omentum protruded, and of being the one that was causing him pain. I think that is the reason he came to me on account of the pain he was suffering. In my opinion a hernia can be caused by a direct injury, but no other kind of injury. If a person had a heavy weight falling down on him, or got in some peculiar position and a hernia resulted immediately with pain, I would say that that could be expected, and that would produce a hernia, but also that the man had a congenital weakness there, and the weight or whatever it was caused an indirect pressure to be so great that it pushed it through the openings. A lick would not be the cause of the hernia. If he had been normal,

it would not have caused hernia. A normal man would not have that hernia, except he got a direct blow, in my opinion. I cannot tell whether he would have it without the lick or not. The fact that he had a hernia or an opening would make the conditions at that point, say an inch and a half or three-quarters of an inch from that place, more susceptible to protrusion or a rupture than if he did not have the old injury. I understand that the defendant, Mr. Ross, has testified that he was boring a hole in a piece of wood or post; that he had the brace or bit against his stomach and pressing down hard enough to force the bit through the wood. If he did not have a hernia prior to that time, the work he was then engaged in would not produce the hernia for which I operated on him. My idea is that if he was not predisposed to hernia that he could not acquire it except by a very violent blow. There could be pressure enough put on that place to produce the nodule that I found there. The fact that the lower protrusion was already there would have a tendency to contribute to or cause the new one."

Notwithstanding the provision of our statute declaring that in all claims for hernia resulting from injury sustained in the course of employment it must be definitely proven to the satisfaction of the Industrial Accident Board that the hernia did not exist in any degree prior to the injury for which compensation is claimed, we are of opinion we would not be warranted in disturbing the verdict of the jury and judgment of the court on the ground that they are not supported by the evidence. The only finding of the jury attacked as being unsupported by the evidence is the one to the effect that the hernia complained of in this action did not exist in any degree prior to the injury charged to have resulted therein, and our conclusion is that the evidence adduced made this an issue of fact for the determination of the jury. The evidence unquestionably shows that the appellee had suffered a hernia in 1910, long prior to the one for which he sues, but if the hernia sustained on September 21, 1917, was not attributable to the pre-existing hernia, and did not exist in any degree prior to the injury producing it, a recovery could be had therefor. While the evidence is doubtless conflicting, it is amply sufficient, we think, to justify the finding that the appellee, in the course of his employment, sustained a hernia on the 21st day of September, 1917, which was entirely separate and distinct from the one suffered in 1910, not at all attributable thereto, and which did not exist in any degree prior to the injury for which compensation is claimed in this suit. The testimony of the appellee is that the "old hernia was not giving him a particle of trouble when he received the new hernia, except the inconvenience of wearing a truss," and Dr. Sappington testified that appellee had suffered two separate and distinct hernias, an old and a new one; that there were two separate and distinct openings and in reality two hernias; "that he found an old hernia and then just a little above, say about half an inch, he found another hernia, a new one"; that the operation was performed for the new nodule; and that the old hernia was well and did not contribute to the new hernia's existence. Dr. Sappington further testified that about 97 per cent. of hernias come without violence, and about 3 per cent. of them are the result of violence or traumatism. Dr. Webb's testimony differs in some material particulars from that of Dr. Sappington, but he testified in once place that in operating upon the appellee he found two hernias. At another place he said:

"I would call what I found two distinct sacks. I don't know whether to call it two separate and distinct hernias or not. It was just one hernia. * * * There was one hernia with two sacks or two openings."

He further said, however, that

"Hernia did in fact exist prior to the present injury; that a hernia is a protrusion of the intestines or some part of the intestines or the membrane around them through some opening.. If you had two ɔpening

and two protrusions, you would have but one sack. You could call it two distinct hernias or a hernia."

This witness further testified that in his opinion "a hernia can be caused by a direct injury, but no other kind of injury," but further says that, "if a person had a heavy weight falling down on him, or got in some peculiar position and a hernia resulted immediately with pain, I would say that could be expected and that would produce a hernia." Dr. Webb further testified, in effect, however, that if the appellee had not had a hernia prior to the time he claims to have sustained the new hernia, the work he was then engaged in would not have produced the hernia for which he seeks to recover.

In this state of the testimony we do not believe it can fairly be said that the issue of whether the hernia in question did or did not exist in any degree prior to the injury for which appellee claims compensation was one of law, and not of fact. The trial court regarded it as one of fact, and submitted the issue to the jury. The jury's finding upon it is favorable to appellee, and, there being substantial evidence to support such finding, the judgment is affirmed.

SOUTHERN SURETY CO v. HIBBS et al. (No. 6373.) (Court of Civil Appeals of Texas. San Antonio. March 24, 1920. Rehearing Denied April 28, 1920.)

221 Southwestern Reporter 303

1. MASTER AND SERVANT-FACTS HELD TO JUSTIFY. FINDING THAT PARENTS OF MINOR SON TEMPORARILY EMPLOYED WERE "DEPENDENTS" WITHIN COMPENSATION ACT.

Proof that deceased employé, a 19 year old farmer boy who was his parents' chief help on their rented farm where he worked, sought temporary employment to obtain money to buy clothing for himself with intent to return to the farm to assist his parents, who were poor and failing in health and strength, held to justify a finding that they were "dependent" upon him within Employers' Liability Act (Vernon's Ann. Civ. St Supp. 1918, arts. 5246-1 to 5246–91).

(For other cases, see Master and Servant, Dec. Dig. § 405 [5].) For other definitions, see Words and Phrases, First and Second Series, Dependent.)

2.

MASTER AND SERVANT-- DEPENDENCY WITHIN COMPENSATION ACT QUESTION OF FACT.

The question of dependency within the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91) is one of fact rather than law, and each case must rest on its own facts. (For other cases, see Master and Servant, Dec. Dig. § 388.)

3. MASTER AND SERVANT-TEST OF DEPENDENCY WITHIN COMPENSATION ACT STATED.

Under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918. arts. 5246--1 to 5246-91, the test of dependency is, not whether the family could support life without the services or contribu

tions of the deceased, but whether they depended upon them as part of their income or means of living.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

4. MASTER AND SERVANT-FAILURE TO DEFINE DEPENDENTS WITHIN COMPENSATION ACT HELD NOT ERROR. In a suit to set aside an award under the Employers' Liability Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91) to parents as dependents, for the death of their son, refusal of the trial judge to define the world “dependents" was not erroneous; the statute itself failing to define it.

(For other cases, see Master and Servant, Dec. Dig. § 417[5].)

5. MASTER AND SERVANT-FINDING OF DAILY WAGE AS BASIS OF COMPENSATION HELD WARRANTED.

Evidence held to sustain a finding as to the amount of daily earnings of those of the sanie class as deceased employé doing the same work during the preceding year within Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), providing that where an injured employé shall not have worked for a year his average annual wages shall consist of 300 times the average daily wage which an employ of the same class working substantially the whole of such immediately preceding year in similar emloyment shall have earned during the days when so employed.

(For other cases, see Master and Servant, Dec. Dig. § 405[6].)

Appeal from District Court, Travis County; George Calhoun, Judge. Proceedings W. M. Hibbs and another under the Employers' Liability Act to recover for the death of J. D. Hibbs, an employé of the Midland Bridge Company, opposed by the Southern Surety Company, inAn award by the Industrial Accident Board was affirmed on appeal to the district court, and insurer appeals. Affirmed.

surer.

Hart & Patterson, of Austin, for appellant.

Charles W. Webb, of Elgin, and Brooks, Hart & Woodward, of Austin, for appellees.

FLY, C. J. On February 21, 1918, J. D. Hibbs, a son of W. M. Hibbs and Carrie Hibbs, was killed while an employe of the Midland Bridge Company, which was a subscriber under the Employers' Liability Act of 1917, chapter 103, p. 269, General Laws of the Thirty-Fifth Legislature (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246–91). Appellees filed their claim with the Industrial Accident Board of Texas, as dependent parents of their deceased son, and on September 5, 1918, an order was issued by the Industrial Accident Board awarding appellees weekly compensation of $13.80 for a period of 360 weeks. Appellant, being dissatisfied with the award, gave the required notice and filed suit, being the insurer of the Midland Bridge Company in the district court of the Fifty-Third district of Travis county, to set aside the award. The cause was submitted on the following issues:

(1) "Were the defendants, W. M. Hibbs and Carrie Hibbs, as parents of J. D. Hibbs, deceased, taking into consideration their condition and circumstances in life, dependent wholly or in part upon the labor of the deceased, J. D. Hibbs, for support at the time of the accident which resulted in his death?"

(2) "What was the average daily wage which was earned by an employe of the same class as the deceased, J. D. Hibbs, working substantially the whole of the immediately preceding year, in the same or a neighboring