(dissenting).
I cannot quarrel with the desirability of either the result reached by this Court or the result reached by the Court of Civil Appeals. I also agree that the insurance company suffers no real harm by being required to advance payment of the attorney fees (except that the company suffers an impairment of its bargaining position to settle the case for less than the amount of the judgment). However, the question is the legal position of the parties under the Workmen’s Compensation Act. Texas Employers Insurance Association should pay only that amount of money at that time which a claimant of Motley’s disability and wage rate is entitled to receive under the terms of the statute.
The sections of that statute which impose liability upon the insurance company direct the payment of a “weekly compensation” to the injured employee of not more than Forty-nine Dollars ($49) nor less than Twelve Dollars ($12). Art. 8306, secs. 10, 11 and 12. Death benefits within the same limits are set by section 8 to be by “weekly payment.” These sections likewise set the maximum length of the period of payment at 401 weeks, 360 weeks, 300 weeks, and the scheduled periods for specific injuries. An exception to weekly compensation is made in case of hardship, but that exception does not apply in this case. The statute does not merely compute the workman’s compensation by adding together weekly pay for a certain period; the liability it imposes upon the insurance company is to pay the compensation rate a week at a time for that period. And that is the only liability to which this company is subject. There is no added liability for the employee’s legal fees. His lawyer is compensated by board or court order out of the “amount recovered” by the employee. Art. 8306, sec. 7d.
I would hold, under compulsion of the statute, that the company should pay $49 per week for the determined period and that it may not be required to pay a special award in a lump sum for attorney fees.
WALKER, J., joins in this dissent.