Court of Civil Appeals of Texas, Galveston.
MARYLAND CASUALTY CO.
May 21, 1942.
Rehearing Denied June 11, 1942.
Attorneys & Firms
*136 C. L. Odell, Jr., of Houston, for appellant.
Glenn Faver, of Jasper, and Barnes & Barnes, of Beaumont, for appellee.
This is a compensation suit brought by the wife of Robert Lee, as his sole death-beneficiary, against appellant, the compensation insurance carrier for James Kennedy, employer of Robert Lee, to recover compensation for his death on February 5, 1941, resulting from injuries sustained in the course of his employment on December 11, 1936.
By pre-trial admissions, the issues to be tried were reduced to three: 1, cause of the employee’s death; 2, whether death was due to disease; and 3, the lump sum question. Upon the jury’s verdict on these issues the court rendered judgment for appellee in the lump sum of $3,048.23. The basis for calculating the amount of the judgment is these admitted facts:
Following the employee’s injury in 1936, appellant paid him $168.30, representing compensation at the rate of $9.90 per week for 17 weeks; and appellant paid said employee and his attorneys $247.29 representing compensation for 94 weeks at $2.47 1/2 a week: aggregation $232.65 past due payments and interest thereon in the sum of $14.64; thereafter, and beginning on January 27, 1939, up to and including January 30, 1941, appellant paid the injured employee and his attorneys, the sum of $3 per week. That the average weekly wage of the employee at the time of his injury was $16.50, with the consequent weekly compensation at $9.90 per week. The rate of pay during the employee’s life for partial incapacity was $3 per week. The agreed compensation rate for death or for total compensation was $9.90; so, judgment was rendered for appellee, the wife of deceased employee, for 360 weeks’ compensation at the rate of $9.90, less $3 per week, during the period of partial incapacity up until the time of death of Robert Lee, less the 17 weeks total incapacity paid.
To reverse the judgment the appellant relies upon these points:
Point 1. That the death-beneficiary was entitled to recover compensation for 360 weeks, less the period of time which the employee lived and was paid compensation (i.e., that the amount she is entitled to is not calculated by the amount of the death benefit, less the amount paid to the employee while he lived).
Point 2. In calculating the amount of the judgment, the death-beneficiary was not entitled to include interest from the date of the injury, but only from the date of the employee’s death.
Point 3. The testimony of the deceased employee, in the trial of a suit brought by him for compensation which resulted in a mistrial, should not have been admitted since it did not arise out of a suit involving substantially the same parties or their privies, and did not involve substantially the same issues.
In Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296, on this point. No good purpose would be served to extend the length of this opinion to show why we consider the Watkins case in error on this point, but merely call attention to the fact that no writ was applied for therein, and one was refused in the Coe case, supra.
We sustain appellant’s second point to the effect that interest should have been calculated on the compensation which appellee was entitled to recover, from the date of the employee’s death, and not from *137 the date of the accident. The Supreme Court, through its Commission, said in Traders & General Ins. Co. v. Baldwin, 125 Tex. 577, 84 S.W.2d 439, 441, in speaking of the liability of the insurance carrier to the death-beneficiary after the employee had died, the court quoted with approval “The liability of the association was of the nature of a debt, and the right of Minnie Sanders [the death-beneficiary] was that of a creditor in such a debt.” In this case appellant did not become indebted to appellee for any sum until her husband died. The obligation to pay interest cannot arise until there is a debt, an obligation to pay principal. Any sum required to be paid in the absence of an obligation is a penalty, not interest: interest is calculated upon a principal sum which is owing, until there is a principal sum there can be no interest. We believe no authority is necessary to support this elementary proposition.
We overrule appellant’s third point, relative to the admission of the testimony of the deceased employee in a suit brought by himself. The general rule is that testimony of a witness on a former trial between the same parties or their privies, involving substantially the same issues, where there was an opportunity to cross-examine him may be reproduced on another trial if the witness has since died. Texas Employers Ins. Ass’n v. Burnett, Tex.Civ.App., 77 S.W.2d 742, 746, such evidence was ruled admissible, and while such case was reversed and rendered because the cause of death was typhoid fever, the Supreme Court did not pass on this point, so the ruling remains persuasive. We overrule appellant’s third point.
The judgment of the trial court should be reformed by eliminating therefrom any interest which is included therein as having accrued prior to February 5, 1941, the *138 date of the employee’s death, and as so reformed the judgment should be affirmed.
Reformed and affirmed.
On Motions for Rehearing.
Both parties have filed motions for rehearing in this cause.
In its motion for rehearing appellant makes the unqualified statement that appellee did not marry the deceased employee until October 2, 1937, following the accident which occurred on December 11, 1936, and appellee makes no denial. We therefore find such fact to be as so stated. We withdraw our holding to the effect that appellee was a party at interest in the suit brought by her husband (the deceased employee). However, notwithstanding such withdrawal, for the other reasons stated by us in our former opinion it was not error to admit the testimony of the deceased employee given in the suit which he had brought for himself. Appellant’s motion for rehearing will be refused.
We have also carefully considered appellee’s motion for rehearing and finding no merit therein the same will also be refused.
Motions of appellant and appellee for rehearing refused.