
    GEORGIA CASUALTY CO. v. WARD et al.
    (No. 2241.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 13, 1920.)
    Master and servant @==>412—Where there was evidence of incapacity of servant to file claim for compensation, cause should not be dismissed, though incapacity was not alleged.
    In an action for injuries to an employé where demand for compensation was not made within the time limited by the Workmen’s Compensation Act and no allegation of incapacity was made, yet where there was evidence of incapacity the judgment should not be reversed and the cause dismissed on the employer’s appeal, but the case should be remanded to tbe lower court for further proceedings.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    On motion for rehearing.
    Rehearing granted, and former opinion, which reversed and dismissed, modified and cause reversed and remanded.-
    For former opinion, see 220 S. W. 380.
    Frank S. Anderson, of Galveston, for appellant.
    B. Q. Evans, of Greenville, for appellees.
   WILLSON, C. J.

As stated in the opinion filed February 26, 1920, while Ward was injured in June, 1916, he did not present a claim for compensation for the injury until March 13, 191S. By the terms of the Act April 16, 1913 (Laws 1913, c. 179 [Vernon’s Sayles’ Ann. Civ.. St. 1914, arts. 5246h-5246zzzz]), referred to in said opinion, Ward was excused from presenting such a claim within the time therein specified if and while he was physically or mentally incapacitated from making it. There were no pleadings hy appellee suggesting such incapacity on Ward’s part as excused him from making the claim before he did, but appellees insist in the motion there was evidence tending to show such incapacity, and therefore that after reversing the judgment we should have remanded the cause for further proceedings in the trial court, instead of here rendering judgment dismissing the suit. We have concluded that appellees’ contention should be sustained in respect to the matter stated, and will set aside the judgment rendered here so far as it dismissed the case, and will, instead, direct that the cause he remanded to the court below for such further proceedings there as are authorized by law. 
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