(concurring).
I concur in the holdings! set forth in the opinion of Mr. Chief Justice WALKER, for, as demonstrated in the opinion, they follow the rule of decision obtaining in this state, and an orderly procedure requires that we should follow the established rule of decision, whatever it may be. It is not the function of a Court of Civil Appeals either to abrogate or modify an established rule of decision, nor to disregard it.
Now the only material question at issue in this case was whether the deceased husband and father of the plaintiffs died as a result of the injury which he received in May, 1931. It is not disputed that he received an injury at that time; that it was received in the course of his employment for the Angelina County Lumber Company; and that notice of it was seasonably given and claim for compensation filed. As to whether the death of Rudd was- due to such injury was submitted to the jury and determined in favor of the claimants. For the purpose of this discussion it is fair to assume that the jury were warranted from the evidence in so finding.
The plaintiffs failed to make proof, by the introduction of any competent evidence, before the jury, that the defendant, insurance company, was in fact the compensation insurance carrier of the Angelina County Lumber Company. Of course, technically the burden was on the plaintiffs to make such proof. It was not made. But the insurance company did not contend in the trial court, nor does it here contend, that it was not in point of fact the insurance carrier. The documentary evidence introduced before the trial judge “for jurisdictional purposes only” included the notice of insurance coverage required to be given by the insurance carrier to the Industrial Accident Board, which nor tice shows on its face, over the proper signature of the insurance company, that it was the insurance carrier.
The technical errors upon which we are remanding this case have no conceivable bearing upon the correct determination of the only material issue in the case. Fiad the proof in question been submitted before the jury instead of being limited to jurisdictional purposes, there would have been no issue of fact upon that question to go to the jury. Admittedly, the defendant was the insurance carrier. . Yet we are compelled, through the necessity of following a mere technical rule, to remand this case, in order that certain proof may be put before the jury which, of itself, cannot possibly change the result and which, after it is introduced, will present no issue of fact for the jury to determine. In the meantime the widow and children' must wait another trip through the courts, or else settle for what they can get.
This writer cannot refrain from remarking, in conclusion, that our courts seem to have lost, in recent years, their power to do justice except as a mere incident of following, meticuously, an elaborate and increasingly more, complicated system of rules. In doing that we give the appearance of disregarding the right and justice of the particular case under review. A litigant who thus suffers the remand of his case on such apparently trivial grounds must regard us as devoid of all sense of right. To him it must appear that we op-, erate upon his rights with the calloused indifference of a senior medical student-cutting on a cadaver. The doctrine o-f *460harmless error which used to play an important part ir^ the decisions of our courts has become, in application, almost as extinct as the dodo bird. And, while I appreciate the necessity for rules, as well as our duty to follow them as they are written, I am unwilling to assent to the holding in this case without voicing my protest against a practice which makes it necessary for me to do so.