Continental Casualty Co. v. Little, 11464.
| Decision Date | 07 January 1946 |
| Docket Number | No. 11464.,11464. |
| Citation | 152 F.2d 728 |
| Parties | CONTINENTAL CASUALTY CO. v. LITTLE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. S. McCorquodale, of Houston, Tex., for appellant.
W. A. Combs, of Houston, Tex., for appellee.
Before WALLER and LEE, Circuit Judges, and WILSON, District Judge.
The testimony was that plaintiff, a manual laborer employed by Houston Poster Advertising Company, on September 14, 1943, sustained an injury to his back, in the course of his employment, from which a hernia also developed. Medical attention was supplied by appellant and compensation paid at the rate of $20 per week for a period of approximately five weeks, after which he worked steadily some four months. Later he was unable to work, on account of his injury, for a period of about six weeks, during which he again received from the insurer medical treatment and compensation at the rate of $20 per week. Promoted to foreman with lighter work and an increase in wages, he returned and worked steadily from April 10, 1944, to September 14, 1944. Upon the anniversary of his injury he quit work.
Plaintiff filed suit under Workmen's Compensation Laws of Texas, Vernon's Ann.Civ.St. Art. 8306 et seq., for compensation for total and permanent disability. He alleged that he was injured on September 14, 1943, and thereafter suffered periods of total temporary disability, for which he had been compensated, but that he became totally and permanently disabled on September 14, 1944.
No general verdict was returned. The case was submitted to the jury on the following special issues,1 among others:
Question No. 4. "If you have found that plaintiff sustained any incapacity to work as a result of the accident of September 14, 1943, answer the following questions:
"(a) Do you find from a preponderance of the evidence that such incapacity to work was total for any period of time?" To which the jury answered: "Yes."
"(b) If you have found that such incapacity to work was total, for how many weeks, if any, do you find from a preponderance of the evidence that such total incapacity has continued or will continue?" To which the jury returned no answer.
"(c) If you have found that such total incapacity to work has continued or will continue for any number of weeks, what do you find from a preponderance of the evidence to be the dates on which such period or periods of total incapacity began and ended, or will begin and end?" To which the jury answered: "September 14, 1943, and continuing indefinitely."
The Court entered judgment on the basis of total permanent incapacity beginning September 14, 1944, instead of September 14, 1943, the date fixed by the jury. Plaintiff's pleadings and evidence were that he became disabled September 14, 1944, and the judgment was merely made to conform to the Plaintiff's pleadings and evidence.
The Texas Compensation Law provides that compensation shall be paid for a period of 401 weeks from the date of the injury for total and permanent incapacity. Since it appeared from the Plaintiff's pleadings and evidence that he was not totally and permanently disabled until a year after the date of his injury, the Court entered judgment for 401 weeks from the date of the injury, less the 52 weeks between the date of the injury and the date of his total disability, or for a total period of 349 weeks, payable in a lump sum, as directed by the jury.2
In the rendition of the special verdicts the jury found these essentials: (1) That the Plaintiff was totally and permanently disabled; (2) the time when such disability began; and (3) that his compensation should be in a lump sum. With these essential answers of the jury before it, the Court was thereupon equipped, and expected,3 to enter whatever judgment was appropriate and to correct errors which are merely clerical, such as we construe this to be. The fact that the Plaintiff became totally and permanently disabled one year earlier than that alleged in his complaint does not prevent the Court from refusing to include a recovery for that year in the light of the pleadings and the evidence. A judge, in entering an appropriate judgment on special verdicts, may not go beyond the scope of the...
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