
    MARYLAND CASUALTY CO. v. OVERSTREET.
    No. 1441—6096.
    Commission of Appeals of Texas, Section B.
    June 24, 1933.
    
      R. L. House and R. H. Mercer, both of San Antonio, for plaintiff in error.
    Shelton & Shelton, of Austin, for defendant in error.
   LEDDY, Judge.

We sustain plaintiff in error’s assignment complaining of the action of the trial court in overruling the general demurrer urged by it to defendant in error’s cross-action.

The cross-action against which the demurrer was leveled was one in the county' court to recover compensation under the Workmen’s Compensation Law. It described an injury for which such law fixes compensation at a sum in excess of $6,000. Defendant in error sought to limit the recovery on the cause of action alleged by his prayer in which he asked that judgment be awarded him in the sum of $980.

Under the Constitution of this state, the district court was vested with exclusive jurisdiction to try and determine the cause of action described in the cross-action. Such jurisdiction could not be ousted by defendant in error’s attempt to remit a portion of the claim sued upon for the purpose of bringing his action within the jurisdiction of the county court. Pecos & North Texas R. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294; Gimbel & Son v. Gomprecht & Co., 89 Tex. 497, 35 S. W. 470; Cotulla v. Goggan & Bros., 77 Tex. 32, 13 S. W. 742; Cox v. Overton (Tex. Civ. App.) 240 S. W. 642; Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91; Times Publishing Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806; St. Louis S. W. R. Co. v. Berry & Slauter (Tex. Civ. App.) 177 S. W. 1187; Jolly v. Underwood (Tex. Civ. App.) 277 S. W. 446; Taylor v. Buzan (Tex. Civ. App.) 241 S. W. 1084; Gulf, C. & S. F. R. Co. v. Hamrick (Tex. Civ. App.) 231 S. W. 166.

In the first case above cited, the facts disclosed that the plaintiff sued in the justice court for damages sustained by reason of the conversion of 160 tons of coal valued at $1.50 per ton, making a total within the exclusive jurisdiction of the county court. It was decided by the Supreme Court that the amount in controversy was beyond the jurisdiction of the justice court, although under the plaintifil’s prayer he sought to recover only $199.50, a sum within the jurisdiction of that court.

In the ease of Hooper Lumber Co. v. Texas Fixture Co., 111 Tex. 168, 230 S. W. 141, the doctrine announced in,the above case was reaffirmed. In denying a plaintiff’s right to remit a portion of his cause of action for jurisdictional purposes, the court said: “Appellant appears to have undertaken to deprive the county court of its exclusive jurisdiction by merely willing that an arbitrary part of its demand be extinguished. No actual ex-tinguishment of any part of the demand resulted from the mental operation of appellant alone, for which no consideration existed. Missouri, K. & T. Ry. Co. v. Smith, 98 Tex. 47, 81 S. W. 22, 66 L. R. A. 741, 197 Am. St. Rep. 607, 4 Ann. Cas. 644. The demand remained one within the county court’s jurisdiction, and appellee had the right, on his seasonably interposed objection, to have the suit determined by that court.” ,

There is a well-defined exception to the rule announced in the above eases, and that is that, if a demand admits of segregation of the amount sought to be remitted, a plaintiff may validly abandon a severable portion of his claim, and jurisdiction will be tested by the amount of the remaining claim. Fort Worth & R. G. R. Co. v. Mathews, 108 Tex. 231, 191 S. W. 559. Similarly, in a suit for damages where the amount recoverable is not. definitely fixed by law or otherwise alleged, for jurisdictional purposes, the sum prayed for would constitute the amount in controversy.

The claim asserted by defendant in error does not fall within the exception. Such a cause of action is not severable. It is based upon an alleged permanent partial disability for which the compensation law fixes a definite and specific sum — one which is within the exclusive jurisdiction of the district court.

Inasmuch as defendant in error would have been allowed the privilege of amending his cross-action if the trial court had sustained the general demurrer urged thereto, his cross-action will not be dismissed.

We recommend that the judgments of the county court and the Court of Civil Appeals be both reversed and the cause remanded for another trial.

CURETON, Chief Justice.

Judgments of the county court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.  