At a former term we rendered judgment in favor of appellant. Ætna Life Insurance Company v. Gilley, 12 S.W.2d 821. A writ of error was granted by the Supreme Court and our judgment reversed. Gilley v. Ætna Life Insurance Company, 35 S.W.2d 136. The judgment of the Supreme Court remands the cause to this court for the purpose of having us pass on certain assignments named in the opinion by the Commission of Appeals not considered by us in our former opinion.
As we construe the opinion of the Commission, we are instructed to consider the sufficiency of the evidence to support the following findings: (1) That the employment of Dallas Gilley by Geo. H. Davis was not a hazardous employment; (2) that the facts justified the rendition of a judgment in favor of the parents of the minor for a lump sum; and (3) that the value of the professional services rendered by Dr. J. W. Howell was $252. We are also instructed to pass on an assignment that there was not sufficient evidence to authorize the court to submit to the jury the question of whether the deceased was injured in the course of his employment. This latter question is not one of the sufficiency of the evidence to support the finding, but of the existence of any evidence warranting the submission of the issue to the jury. We have not the power or authority to consider the sufficiency of the evidence to support a finding upon an assignment complaining that there is no evidence. Hall Music Co. v. Robertson, 117 Tex. 261, 1 S.W.2d 857. We overrule this assignment. There was ample evidence authorizing the submission of this issue to the jury. There is in the brief an assignment which might be construed as raising the issue of the sufficiency of the evidence to support the finding *Page 1047 of the jury on this issue. This evidence has been considered, and the assignment is over-ruled.
With regard to the issue of the sufficiency of the evidence to support the finding that the employment was not hazardous, we hold that there is sufficient evidence in the record to support this finding. It would appear on the surface that we are now holding the same evidence to be sufficient to support a finding which we formerly held to be wholly lacking. This apparent inconsistency arises from the fact that our conclusions of law differed from those announced by the Commission of Appeals and approved by the Supreme Court. It was our opinion that, since the Penal Code forbids the employment of a minor to work in a place where explosives are used, no issue of fact as to whether the particular employment was hazardous was involved. As we interpret the opinion of the Commission of Appeals, the holding is that, in order to prevent a minor from being an employee under the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.), the contract must not only be unlawful, but the employment must be hazardous as a matter of fact. Under this holding, if we properly interpret it, when a minor, employed in violation of the child labor laws, is injured in the course of his employment, whether his cause of action is one for damages against his employer or for compensation under the Workmen's Compensation Law cannot be determined in advance, but is dependent upon whether the jury finds from the facts of that particular case that his employment was hazardous. A finding in his suit under the Workmen's Compensation Law that the employment was hazardous would defeat his claim, and a finding in his action for damages against his employer that his employment was not hazardous would defeat his claim for damages. Entertaining the view of law above expressed, we did not consider this assignment at all, deeming same immaterial. Complying with the instructions from the Supreme Court we have considered same, and hold that the evidence supports the finding.
The facts justified the rendition of a judgment in favor of the parents for a lump sum, and all contentions to the contrary are over-ruled.
The facts do not support a judgment in favor of Dr. J. W. Howell for $252. His own testimony, which was all the evidence offered on the question, conclusively establishes that the amount of his recovery should have been $125 instead of $252. The judgment must accordingly be reformed so as to limit his recovery to the amount justified by the evidence.
The opinion of the Commission does not specifically point out other assignments upon which we are to pass, but we have considered them and overrule all of them not passed upon in the opinion by the Commission, except the one as to the excessiveness of the recovery by Dr. Howell.
The judgment of the trial court will be reformed in accordance with what has been stated above, and, as reformed, will be affirmed.