amount of the annual earnings of the deceased employé was $780, and the amount contributed by the deceased to those partially dependent upon his earnings was $234. It was also agreed that the respondents should pay Francesca Giannotti as partial dependent $2.75 a week for a period of 300 weeks.

On the 13th of October, 1916, Santi Giannotti filed in the superior court a petition for compensation which he entitled a "Supplementary Petition," in which he alleged the facts on which he based his claim for compensation, and that he was partially dependent for support upon the earnings of the deceased; that the agreement above mentioned was an agreement between respondents and the said dependents Francesca Giannotti and Santi Giannotti; that the respondents have complied with the terms of the agreement in regard to payments of compensation to Francesca; but that they now refuse to make any agreement in writing or to pay any weekly compensation for his benefit on the ground that no petition or agreement has been filed in court within two years after the death of the said employé by Santi Giannotti or by any person in his behalf.

The superior court held that the claim of the petitioner was not barred by the statute of limitations, and that petitioner was entitled to compensation as prayed for.

The respondents by their appeal raise the following question, viz. Is the claim of the petitioner barred by the provisions of the Compensation Act in regard to the limitation of actions?

In section 18, art. 3, c. 831, Public Laws R. I. 1911-12, it is provided that the claim of any dependent for compensation under the act shall be barred unless an agreement or petition shall be filed within two years after the death of the employé. By article 3, §§ 1 and 2, of the act, two methods of procedure are provided for the recovery of compensation, namely, by agreement or by adversary proceedings by petition in the nature of a petition in equity.

By section 1 it is provided that, if the employer and employé, or his dependents when death has resulted from the injury (see article 5, § 1, as amended by chapter 1268, Public Laws 1915-16), reach an agreement in regard to compensation, a memorandum of such agreement signed by the parties shall be filed in the office of the clerk of the superior court, and shall be approved by a justice of said court if the terms of the agreement conform to the provisions of the act. It is further provided that when death has resulted from the injury and the dependents of the deceased employé entitled to compensation are, or the apportionment thereof between them is, in dispute, such agreement may relate only to the amount of compensation, and if the parties fail to reach an agreement, by section 2 it is provided that any person in interest may file a petition setting forth the names and residences of the parties, the amount of earnings received by the employé, etc., the matter in dispute, and the claims of the petitioner thereto. The

respondent must file an answer within ten days, and the court is then directed to hear the matter on its merits and decide the controversy.

It thus appears that, when the agreement above mentioned was made, either of the dependents had the right to settle his or her individual claim by a separate agreement with the respondents. If the question either of what dependents, if any, were entitled to compensation, or of the apportionment of compensation, was in issue, two methods of procedure were provided. An agreement might be made between the respondents, and one or all of the dependents only as to the amount of compensation to be paid, or if the parties failed to reach an agreement, then any one of the dependents or the respondents was empowered to secure a decision on all the controverted facts by petition.

The agreement in this case was made and executed by the Giusti Bros. as employers and Francesca Giannotti as a partial dependent. It is the individual and personal agreement of the parties thereto, and there is nothing therein which shows an intention to make any other person a party to the agreement. Francesca Giannotti did not act as the agent for her father, and there is in the agreement no claim or recognition of any right in Santi Giannotti at all. This is evidenced by the following clauses which were inserted in the agreement:

"The dependency, if any, of the deceased's father is to be ascertained and agreed upon or fixed by the court upon petition," and "it is further agreed and understood that this agreement shall not in any way prejudice or interfere with the individual rights of the deceased's father as shown by section 2 of part A of this agreement."

The question of the dependency of the father of the deceased was to be determined, not by this agreement, but by some other agreement to be made in the future by the petitioner and the respondents, or by the decision of the court in proceedings by petition.

The petition in this case must be regarded either as an inde pendent proceeding or as an amendment to the written agreement above mentioned. We think that it is an independent proceeding, and as such it is clearly barred by the provisions of article 3, § 18, supra, as the petition was not filed until two years and three months after the death of the employé. It cannot be treated as an amendment to the written agreement, as the result, if this was allowed, would be to substitute a new agreement, made, not by the parties thereto, but by the court, and the statute authorizes no such procedure.

It is argued that the entire proceedings constitute but one action, and by analogy to the case of actions for death by wrongful act that a new beneficiary may be added by amendment to the original proceedings. We do not agree with this contention. Such an amendment might doubtless be made to a petition, as

by the Compensation Act express authority to permit amendments is given to the court where the proceedings are by petition, but no such power is given in regard to agreements. In the case of an authorized agreement, when the employé is dead, the power of the court to change the agreement is restricted to an appeal based upon proof that the agreement was procured by fraud or coercion. Even if the construction of the act as urged by the petitioner was correct, the claim of the petitioner would be barred in this particular case, as it is held in cases of death by wrongful act that a new party cannot be added by amendment after the expiration of the period of limitation. Railroad Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N E. 803; Fitzhenry v. Traction Co., 63 N. J. Law, 142, 42 Atl. 416.

For the reason stated, we are of the opinion that the claim of the petitioner was barred by the lapse of time.

The decree of the superior court is reversed, and the cause is remanded to the superior court, with direction to enter its decree dismissing the petition.

COURT OF CIVIL APPEALS OF TEXAS.

SAN ANTONIO.

SOUTHWESTERN SURETY INS. CO.

ບ.

CURTIS ET AL. (No. 5964.)*

1. WORKMEN'S COMPENSATION-COURSE OF EMPLOYMENT. Where intestate was injured while working on employer's barn, under its orders and control and for its benefit, he was injured in the course of his employment.

2. WORKMEN'S COMPENSATION INSURANCE-LIABILITY — NOTICE.

Defendant's liability to pay compensation under its contract of employers' liability insurance did not depend upon notice of the contract by defendant to the Industrial Accident Board prior to the injury.

3. WORKMEN'S COMPENSATION INSURANCE-NOTICE OF INJURY.

It was immaterial when the employer notified the board of its insurance contract with defendant; the only notice required being notice of employee's injury within a reasonable time to defendant and the board.

Decision rendered, Feb. 6, 1918. Rehearing denied, Feb. 27, 1918. 200 S. W. Rep. 1162.

4. WORKMEN'S COMPENSATION - INDUSTRIAL BOARD — JURISDICTION.

The jurisdiction of the Industrial Accident Board to adjust a claim against an employers' liability insurer attaches as soon as claim for compensation for injuries to employee is filed.

5. WORKMEN'S COMPENSATION-FINAL AWARD OF INDUSTRIAL ACCIDENT BOARD.

A final award of the Industrial Accident Board would bind all parties before it, unless prior to such award the insurer manifested its objection to the adjustment and its refusal to abide by the final decision of the board; an objection and refusal, timely made, depriving board of right to proceed further.

6. WORKMEN'S COMPENSATION - INDUSTRIAL ACCIDENT BOARD JURISDICTION.

Where the employer expressed its consent by becoming a subscriber to the employers' insurance association, the insurer obtained its license and permit and issued the policy, and claimant filed claim for compensation, there was consent of all parties interested, required to give Accident Board jurisdiction.

7. WORKMEN'S COMPENSATION-SUIT ON AWARD-EXTENT OF RELIEF.

Where the board, under the Employers' Liability Act, awarded to plaintiff widow a weekly allowance, and on default in payment of such allowance she sued the insurer, the court, though it properly gave judgment establishing the validity of the award, should not have given judgment and execution for installments which had not accrued.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by Mary M. Curtis and others against the Southwestern Surety Insurance Company. Judgment for plaintiffs, and defendant appeals. Reformed and affirmed.

Hertzberg, Kercheville & Thomson, of San Antonio, for appellant. Ryan & Matlock, of San Antonio, for appellees.

SWEARINGEN, J. Appellee Mary M. Curtis, for herself and for the use and benefit of her two minor sons, Lurean and David Pettyjohn, instituted this suit against the appellant, Southwestern Surety Insurance Company, to recover compensation for the death of Edward H. Pettyjohn, her husband, and the father of the two minors. T. B. Curtis, husband of Mary M. Curtis, joined his wife in the suit pro forma. Special issues were submitted to a jury, and judgment rendered against appellant for $1,489.40, the amount of the matured installments, together with interest from the date of the judgment, and for $2,386.50, payable in weekly installments of $10.50 each, the first weekly installment to be paid on the 2d day of June, 1917, and one installment each and every week thereafter until the full sum of $2,386.50 shall have been paid.

It is alleged that Edward H. Pettyjohn, on and prior to November 8, 1914, was in the employ of the Russell-Coleman Cotton Oil Company; that he received a salary of $100 a month, paid

as follows: $75 a month paid in cash, and the balance paid by the use of a dwelling furnished by the Oil Company, which was of the reasonable value of $25 a month. It is alleged that Pettyjohn, while in the general course of his employment, and working for said Russell-Coleman Cotton Oil Company under its instructions and for its benefit, was injured by stepping on a nail projecting from a board lying on the ground on the premises of said employer company, that the nail penetrated Pettyjohn's foot, inflicting serious injury; which injury caused blood poison and tetanus, resulting in the death of Pettyjohn on the 16th day of November, 1914. It is further alleged that the Russell-Coleman Cotton Oil Company was a subscriber to the Texas Employers' Insurance Association at the time of the injury, and that on the day of the injury and prior thereto the appellant insurance company had obligated and bound itself to pay to the employés of the Russell-Coleman Cotton Oil Company, or to the representatives and beneficiaries of such employés, such damages or compensation as should be awarded against it by the Industrial Accident Board of the state of Texas on account of personal injuries or death sustained by the said employés while in the course of employment; that said appellant company received a license and permit from the commissioner of insurance and banking of the state of Texas to issue policies of insurance under said Employers' Liability Law. It was also alleged that the accident and injury to Pettyjohn was reported by the subscriber, Russell-Coleman Cotton Oil Company, to the Industrial Accident Board at Austin, Tex., on November 25, 1914, within a reasonable time after the death of Pettyjohn, and that the accident and injury were duly reported to the appellant insurance company. It was further alleged that within six months after the death of Pettyjohn, namely, on December 2, 1914, claim was filed by the widow, Mary M. Curtis, with the Industrial Accident Board, for the compensation due from the appellant company; that the appellant company was duly notified of the claim; that thereafter, on the 26th day of August, 1915, the Industrial Accident Board entered an order by which it ordered, adjudged, and decreed that the appellant, Southwestern Surety Insurance Company, should pay to appellee, Mrs. M. Pettyjohn, now Mary M. Curtis, the sum of $10.50 a week, payable weekly for 360 weeks from and after November 8, 1914, but that, notwithstanding said order of the Industrial Accident Board, the appellant refused to pay said award.

Appellant answered by general denial, and specially denied that the Russell-Coleman Cotton Oil Company had a liability policy obligating the appellant company to pay compensation to the oil company's employés at the time of the injury to Pettyjohn on November 8, 1914, and denied that Pettyjohn was injured while in the course of his employment. Appellant denied the authority of the Industrial Accident Board to make the award against it,