The opinion
On Motion for Rehearing.
In appellees’ motion for rehearing, it is earnestly insisted that the provision of section 12b of article 8306, Workmen’s Compensation Law, providing that the facts entitling an employee to recover for an injury resulting in hernia “must be definitely proven to the satisfaction of the board,” does not change the general rule in civil cases that a preponderance of the evidence in favor 'of plaintiff is sufficient to sustain a recovery; but that that statutory requirement is intended as a guide for the trial judge in determining whether or not the verdict of the jury in plaintiff’s favor should be approved. Ap-pellee cites Carl v. Settegast, 237 S. W. 238, 239 , in which the Supreme Court held that in a suit to ingraft a parol trust upon a deed to real estate, it is error to charge the jury that the burden is upon the plaintiff to establish the allegation of the petition clearly and to the satisfaction of the jury; even though such is the rule in a court of equity. But in that decision the reason of the holding is thus stated:
“The rule that to ingraft a parol trust upon an instrument absolute on its face the evidence must be clear and satisfactory arose at a time when suits of this nature were cog *929 nizable only In courts of chancery, where all matters of fact, as well as the law, were tried by the chancellor, and where questions of facts addressed themselves to the conscience of the chancellor. The aid of a jury in such cases was discretionary, and their findings, when called for such aid, were not binding absolutely upon the chancellor, but merely persuasive and advisory, and subject to be' disregarded at his discretion. In so far as the rules of evidence thus announced by the chancery courts are rules of law, they should be regarded as binding upon our courts; but, in so far as these rules merely address themselves to the conscience of the chancellor in exercising his province to pass upon the facts or weight of the evidence, they have no place in our jurisprudence, under which, whether the ease be one cognizable alone in equity or one at law, a jury trial is given as a matter of right, and the province of the jury where the evidence is sufficient to have the issues submitted to them is absolute in determining the facts, subject only to review by the trial court and Court of Civil Appeals.”
Appellee also cites the case of Reinhardt v. Nehring (Tex. Com. App.) 291 S. W. 873 , in which it was held that it was error to in- • struct the jury that the burden was upon the proponent of a will to show to the satisfaction of the jury that the testatrix was of sound mind; although in article 3348, Rev. Civ. Statutes of 1925, it is provided that “before admitting a will to probate, it must be proved to the satisfaction of the court” that the testator at the time of executing the will was of sound mind. In that case it is held that the provision of article 3348 as to the quantum of proof necessary to probate a will should be construed as a direction to the court, rather than- as a guide to the jury when the issues are submitted to it. A like construction was placed upon the language of article 4632, requiring the facts necessary to entitle a plaintiff to a decree of divorce to be established upon evidence which is full and satisfactory to the court.
Section .5 of article 8307 provides for suit by any interested party who is dissatisfied with the decision of the Industrial Accident Board upon any claim presented to it. The following is one of the provisions of that section:
“If the final order of- the board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the board, if it so desires, and the court shall in either event determine the issues in such cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation.”
In American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949, 957 , the following is said:
“Section 5, part 2, Workmen’s Compensation Law (General Laws 1917, c. 103, p. 283), provides:
“ ‘Whenever such suit is brought, the rights and liability of the parties thereto shall be determined -by the provisions of this act.’ Honnold on Workmen’s Compensation, vol. 1, pp. 167, 346, and 358.
“The appellees base their right -of recovery on the Workmen’s Compensation Act alone, and they must show that they are entitled to compensation within the terms of the act.”
In Mingus v. Wadley, 115 Tex. 551 , 285 S. W. 1084, 1087 , the Supreme Court, speaking through Chief Justice Cureton, made this announcement:
“The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from .the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable. [Citing numerous cases.]
“The Workmen’s Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity -of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies. [Citing numerous cases.]”
Since the action in the present suit is not for equitable relief, nor based on the common law, but rests solely upon the Workmen’s Compensation Act, and since as announced by Chief Justice Cureton, and the many authorities cited in his opinion, the employee claiming the benefits under the Workmen’s Compensation Act must comply strictly with its provisions in order to sustain a recovery, and since there is nothing in that i act indicating that the quoted provision of section 12b, article 8306, was intended as a guide for the trial judge and not for the jury, we adhere to the ruling announced in our original opinion on the question now under discussion and accordingly overrule appellees’ motion for rehearing. We will add that if appellees’ construction of that statute be adopted, then it would follow, logically, that, even though the verdict of the jury should be in plaintiff’s favor under an instruction, the burden was'upon him to establish his claim by definite proof to the satisfaction -of the jury, yet the trial .judge would have authority to set aside the verdict and deny plaintiff relief if in his opinion the facts relied on have not been definitely proven and to his satisfaction, and thus set at' naught the statute which makes the jury the exclusive judge of controverted issues of fact.