(concurring specially, in which Judge HUTCHESON joins).
I have read the policy. The provision relied on by appellant is;
“This agreement is subject to the following conditions:
* * -x- * *
“D. If any person entitled to the benefits provided by Section I hereof shall refuse to accept such benefits or if any person shall commence an action at law for damages (except for such benefits) against the Employer or the Company on account of such injuries, the Company’s obligations and liability under Section I hereof are thereupon terminated.”
The claims for statutory interest and attorney’s fees, at first urged by appellee, but stricken by the court, may have been in excess of the benefits under the policy, but clearly, if recoverable, they were incidents to the policy construed in connection with the Texas statutes, and not “damages” as used in the forfeiture provision. A contrary construction denying to the courts jurisdiction to pass upon the amount recoverable on account of a breach of the policy would, I think, make the forfeiture provision invalid. See 2 Restatement, Contracts, § 551; 12 Am.Jur., Contracts, § 186; 17 C.J.S., Contracts, § 229. I concur with my brothers.