On Rehearing.
On a former day of this term of court, we reversed the judgment of the trial court in this cause, and remanded same. Thereupon both appellant and appellee made motions for a rehearing. These motions will now be considered together.
In the appellant’s motion for rehearing, our attention is called to an error in the original opinion. In that opinion the jurisdictional amount set forth by the pleading was computed upon the basis of.article 8306, § 12, R. S. 1925, which reads as follows: “For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent of the average weekly wages of such employee, but not less than $7.00 per week nor exceeding $20.00 per week. * * * ”
This statute became effective about July 3, 1923. The accidental injury complained of in this suit occurred in October, 1922. At that time, and under the contract of insurance then covering the employee the statute fixing compensation for injuries read as follows: “For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent, of the average weekly wages of such employee, but not less than $5.00 per week nor exceeding $15.00' per week, for the respective periods Stated herein.” Chapter 103, part 1, § 12, Acts of the 35th Legislature, 1917, as found in volume 18, Gammel’s Laws 1917.
*770For' the purpose of computing the jurisdictional amount, the calculation should have been based upon the terms of the.last-quoted statute. The contract of insurance and 'the statute under which it was issued control the compensation to be paid the employee as the result of the accident and injuries suffered. Associated Emp. Reciprocal v Brown (Tex. Civ. App.) 56 S.W.(2d) 483.
The alleged average weekly wage was $31.50, and* the statute provides that “for the loss of the great toe sixty per cent of the average weekly wages during thirty weeks,” and in case of the loss of the foot “sixty per cent of the average weekly wages during 125 weeks.”
Computing the jurisdictional amount based upon the loss of the toe and upon said weekly wages, we find that 60 per cent, of $31.50 is $18.90, but the maximum allowance under the statute last quoted is $15 per week; hence $15 multiplied by 30 weeks amounts to $450, the maximum amount thus claimed, or recoverable, for the toe. This amount is, of course, not within the concurrent jurisdiction of the county and district court, and it is thus apparent that, in proceeding upon the basis of the statute first quoted, we erred in the conclusion that the amount sought to be recovered .for the loss of the toe was within the' jurisdiction of the district court.
Computing the jurisdictional amount based upon the injury to the foot, or the alleged 25 per cent, disability resulting thereto from the injury, we have the following results: Sixty per cent, of $31.50 equals $18.90. For 25 per cent, disability to the foot, we take one-fourth of $18.90, which gives a quotient of $4,725. This quotient multiplied by 125 weeks gives the sum of $590'.625, a sum within the jurisdiction of the district court itself.- However, the $4,725 is not necessarily the amount to be multiplied by 125 weeks, for the simple reason that the weekly compensation cannot, under the statute, fall below $5 per week as a minimum. Therefore, instead of multiplying $4,725 by 125 weeks, we multiply the $5 minimum by 125 weeks, which gives $625, the maximum claimed for the foot injuries. This, of course, is well within the jurisdiction of the district court.
This method of computation is upheld in the following cases: General Accident Fire & Life Assurance Corp. v. Bundren (Tex. Civ. App.) 274 S. W. 671; Id. (Tex. Com. App.) 283 S. W. 491; Maryland Casualty Co. v. Ferguson (Tex. Civ. App.) 252 S. W. 854; Texas Emp. Ins. Ass’n v. Maledon (Tex. Com. App.) 27 S.W.(2d) 151; Maryland Casualty Co. v. Donnelly (Tex. Civ. App.) 50 S.W.(2d) 388. These authorities construe the above statutes.
Further, in our original opinion we sustained an assignment of error to the action of the trial court in overruling a special exception to the part of the plaintiff’s petition attempting to allege medical expenses, etc., in the sum of $100.
Whatever the deficiency in matter of pleading setting up this claim of $100, the amount thereof would nevertheless be a part of the jurisdictional amount involved in this suit The pleadings would be subject to amendment. That sum added to the maximum recovery possible in the case of the injury to the toe or the foot would make either of those amounts definitely within the jurisdiction of the district court. It follows that we reach the same ultimate conclusion adopted in the original opinion.
For the reasons here assigned and in response to the appellant’s motion for a rehearing, our original opinion is modified to the extent here indicated. For the' reasons assigned in the original opinion, we overrule .the appellee’s motion for rehearing.