The opinion
POPE, Justice
(dissenting in part).
In my opinion, the trial court properly sustained the plea in abatement. The court ruled by dismissal of the action. Stricken from the judgment were the words, “and plaintiffs having declined to amend further.” Plaintiffs did not decline to amend. They had no opportunity to amend. The judgment upon the pleadings should not have been rendered without at least an opportunity to amend. The pleadings do not affirmatively prove that amendment is impossible.
The majority holds that the point does not include the proposition that the trial court erred in dismissing without a chance to amend. The point is:
“The trial court erred in entering judgment dismissing this suit because the pleadings of Appellants were suf-cient to state a cause of action and such pleadings did not allege a new and different claim from that made to the Industrial Accident Board.”
Appellants’ brief shows that they objected to the dismissal and argued that the court should only have stricken that part to which it sustained the plea. They argue that the whole cause should not have been dismissed. They cite Jud v. City of San Antonio, Tex.Com.App., 143 Tex. 303 , 184 S.W.2d 821 , on the precise point that the court should not dismiss without an opportunity to amend. The construction of the point, without regard to the argument in. the brief, is too narrow. Sears, Roebuck & Co. v. Hollingsworth, 156 Tex. 176 , 293 S.W.2d 639 ; Gleason v. Davis, 155 Tex. 467 , 289 S.W.2d 228 ; Woodward v. Ortiz, 150 Tex. 75 , 237 S.W.2d 286 . The result of this decision is not only to defeat the claim which was not presented to the Industrial Accident Board, but also the clairr, that was presented.
I would remand the case to afford plaintiffs an opportunity to amend to meet the trial court’s ruling.