The opinion
SHARPE, Justice
(concurring in part, and dissenting in part).
I concur in affirmance of the judgment awarding Camilio Mosqueda, appellee, the amounts of $12,600.00 as payment under the Workmen’s Compensation Statutes on account of the death of his father, $1,512.-00 as a 12% penalty on the amount of $12,600.00, and $6,410.00 as attorney’s fees. However, I respectfully dissent with reference to the judgment of this Court which awards interest at the rate of six (6%) per cent per annum on the amounts stated.
Appellee’s primary contention under his cross-point is that six (6%) per cent per annum is the correct rate of interest to be applied to the award of $12,600.00 beginning on December 30, 1965. However, in the alternative, he prays that interest be calculated at the rate of four per cent per annum, compounded annually.
When appellant failed to properly institute suit against Camilio Mosqueda within the time provided by Art. 8307, sec. 5, V. A.C.S., the order of the Industrial Acci *909 dent Board became binding upon all parties thereto, but the appellant has failed and refused without justifiable cause to comply therewith. It appears from our decision on the first appeal of this case (Mosqueda v. Home Indemnity Company, 443 S.W.2d 901 (Tex.Civ.App., Corpus Christi, 1969, wr.ref. n.r.e.), and the record in the instant appeal that Mosqueda was entitled to mature his entire claim and the award of the Industrial Accident Board and to recover the full amount thereof together with penalty and attorney’s fees, all as provided by Art. 8307, sec. 5a, V.A.C.S.
In my view the correct rate of interest applicable in this case is four (4%) per cent compounded annually. That rate should be applied to the amount of $12,-600.00 from December 30, 1965 (in accordance with appellee’s cross-point which specifically requests calculation of interest from that date and interest so calculated should be added to appellee’s recovery in the judgment) and to the amounts of $6,-410.00 (attorney’s fees) and $1,512.00 (penalty) from date of judgment, i.e., March 16, 1970. See Art. 8306a, V.A.C.S. In my view that statute provides the proper rate both for discount for present payment and for interest on amounts which are matured and owing to the beneficiary. The second paragraph of Art. 8306a reads as follows:
“Provided, however, where suits are legally brought by any claimant or beneficiary under any of the provisions of this Act and recovery is had for past due weekly installments, such claimant or beneficiary shall be entitled to recover interest on such past due installments at the rate of four (4;%) per cent, compounded annually. Any judgment rendered pursuant to any of the provisions of this Act shall bear interest from the date it is rendered until paid at the rate of four (4%) per cent, compounded annually.”
It is important to note that Art. 8306a, V.A.C.S., was amended by the Legislature in 1951. See Acts 1951, 52nd Leg., p. 127, ch. 78, Sec. 2, The Historical Note to that article in Vernon’s Civil Statutes reads as follows: “The amendatory act of 1951, decreased the discount rate from 6% to 4% and inserted the first proviso relating to interest on past due installments and on judgments.” It thus appears that cases involving claims arising prior to the said 1951 amendment are not controlling as to the applicable rate of interest after the amendment became effective.
The majority opinion relies upon Hartford Accident & Indemnity Co. v. Reina, 441 S.W.2d 622 (Tex.Civ.App., Amarillo, 1969, wr.ref. n.r.e.) and Article 5069-1.03, V.A.C.S. for the holding that the rate of interest in this case should be six (6%) per cent per annum. In my view, neither Rei-na nor that statute is applicable or controlling here. The claim involved in Reina arose because of the death of Pablo Reina on August 9, 1945, almost six years prior to the amendment of Art. 8306a in 1951 and the question concerning the rate of interest (6%) was not even raised. The court held that interest was properly allowable at that rate on the award of compensation ($3,200.00) by the Industrial Accident Board, which was made many years previously when the plaintiffs were minors, from the due date of each installment, but that the 12% penalty provided by Art. 8307, sec. 5a, V.A.C.S., was not properly allowable on the award of interest. Reina is not authority for a holding that interest at the rate of 6% per annum is properly allowable in Workmen’s Compensation cases after the 1951 amendment to Art. 8306a.
Art. 5069-1.03, V.A.C.S., is applicable only to cases wherein the parties to a written contract have not agreed upon a specific rate of interest and to open accounts. In my view the provisions of that Statute have no application to a suit for Workmen’s Compensation benefits and enforcement of an award of the Industrial Acci *910 dent Board such as we have involved in the instant case.
Since the 1951 Amendment to Article 8306a, V.A.C.S., it has been held in a number of workmen’s compensation cases that interest on accrued payments and on the judgment should be at the rate of 4% per annum, compounded annually, and not at the rate of 6% per annum. See Consolidated Casualty Insurance Co. v. Jackson, 419 S.W.2d 232, 239 (Tex.Civ.App., Houston, 14th, 1967, wr.ref. n.r.e.); General Accident Fire and Life Assur. Corp. v. Camp, 348 S.W.2d 782, 786 (Tex.Civ.App., Houston, 1st, 1961, n.w.h.); Texas Employers’ Insurance Association v. Elder, 274 S.W.2d 144 (Tex.Civ.App., Fort Worth, 1954, affirmed 155 Tex. 27 , 282 S.W.2d 371 (1955); General Ins. Corp. v. Handy, 267 S.W.2d 622, 623 (Tex.Civ.App., San Antonio, 1954, wr.ref. n.r.e.); Traders & Gen. Ins. Co. v. Durrette, 258 S.W.2d 346 (Tex.Civ.App., Amarillo, 1953, n.w.h.).
The above-cited cases all involved trials de novo on appeals from awards of the Industrial Accident Board. However, in my view the rate of interest in that type of case is no different from that where suit is brought to enforce and mature the award of the Industrial Accident Board under Article 8307, Sec. 5a, V.A.C.S., although that statute does provide for recovery of penalty and attorney’s fees in addition to compensation benefits.
I would modify the judgment of the trial court so as to allow interest at the rate of four (4%) compounded annually on the amount of death benefits in the sum of $12,600.00 from December 30, 1965 to the date of judgment, which was March 16, 1970. I would also modify the judgment to provide for interest on the total amount so calculated and upon $6,410.00 (attorney’s fees) and $1,512.00 (penalty) from date of judgment until paid at the rate of four (4%) compounded annually. As so modified I would then affirm the judgment.