For the purpose of discharging the burden resting on him article 5246 — 44) to prove that the Gulf Pipe Line Company was a "subscriber" within the meaning of the Workmen's Compensation Act at the time he suffered the injury complained of, appellee offered and the trial court admitted as evidence, over appellant's objection thereto on the ground that it was incompetent, irrelevant, and immaterial, a part of the award of the Industrial Accident Board, reciting that said pipe line company was such a subscriber. The assignment in which appellant complains of this action of the trial court must be sustained. The effect of a suit like this one "is similar," the Court of Civil Appeals said in Casualty Co. v. Griesenbeck, 210 S.W. 273, "to that of appealing from a judgment of a justice court. The trial is de novo; that is to say, it is to proceed as though no former trial had been had." Hence it devolved on appellee, without respect to the proceedings before the Industrial Accident Board and its award, to prove by competent evidence the facts entitling him to relief he sought. Recitals in the award were not such evidence. Association v. Downing, 218 S.W. 112. The testimony in question not being competent evidence of the fact it was admitted to prove, and there being no other testimony on which to base a finding that the pipe line company was a "subscriber," it follows that the judgment was unauthorized, and therefore erroneous. Henry v. Phillips, 105 Tex. 459,151 S.W. 533.
Notwithstanding the jury found that the incapacity to work and earn money resulting to appellee from the injury he suffered was only partial, the court rendered judgment in his favor for a lump sum, which he found to be the amount appellee would be entitled to in the future on account of such incapacity. This part of the judgment evidently was on the theory that the statute authorized it, if, as found by the jury, it would be "manifest hardship or injustice" to deny him such a recovery. Appellant insists that the statute (article 5246 — 33) authorizes such a recovery only when death or total permanent incapacity results from the injury to the employé. We think the contention must be sustained, and therefore that the judgment in that respect is erroneous. The article of the statute referred to is as follows:
"In cases where death or total permanent incapacity results from an injury, the liability of the association may be redeemed by payment of a lump sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board hereinafter created. This section shall be construed as excluding any other character of lump sum settlement save and except as herein specified; provided, however, that in special cases where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association in the cases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the board."
When the avowed purpose of the act (article 5246 — 37) to provide for the payment weekly of the compensation an injured employe is entitled to, and other provisions of the act (articles 5246 — 14, 5246 — 15. 5246 — 18, 5246 — 19, 5246 — 21, 5246 — 22, 5246 — 23 and 5246 — 34) are kept in mind, it is plain, we think, that the trial court erred when he construed the article of the statute set out above as authorizing him to render the judgment he did for a lump sum in favor of appellee. Not only was such a construction in the face of the avowed purpose of the statute, but we think it was in the face of language in said article in harmony with that purpose, and indicating that the intent of the Legislature was to restrict the payment of the compensation in a lump sum to cases where the injury to the employé resulted either in his death or a total permanent incapacity, and (1) the parties agreed it should be paid, or (2) in the judgment of the board "manifest hardship or injustice" would result if it were not paid in that way. The "special cases" referred to in the proviso evidently were cases where death or total permanent incapacity resulted from the injury, for they were the "cases provided for in this section," in which alone the board was authorized to compel the association to pay the compensation the employé was entitled to in a lump sum.
Other questions presented by the assignments will not be determined, as they are not likely to arise on another trial of the case.
The judgment is reversed, and the cause is remanded to the court below for a new trial *Page 874