Hargrove v. Trinity Universal Ins. Co.

• Decision Date: 04 March 1953
• Docket Number: No. A-3798,A-3798
• Citation: 256 S.W.2d 73,152 Tex. 243
• Parties: HARGROVE v. TRINITY UNIVERSAL INS. CO.
• Court: Texas Supreme Court

Page 73

256 S.W.2d 73

152 Tex. 243

HARGROVE v. TRINITY UNIVERSAL INS. CO.

No. A-3798.

Supreme Court of Texas.

March 4, 1953.

Rehearing Denied April 8, 1953.

Ratliff, Conner & Walker, Spur, for petitioner.

Crenshaw & Harrell and Charles C. Crenshaw, Jr., Lubbock, for respondent.

CALVERT, Justice.

Based upon pleadings adequate in all respects to present both theories of recovery alternatively, a jury found that petitioner, proceeding under the Workmen's Compensation Act, had sustained general injuries resulting in temporary total incapacity for a period of 44 weeks and permanent partial incapacity of 50%, and that he had sustained specific injuries to both of his legs through permanent partial loss, to the extent of 50% thereof, of the use of his legs at or above the knees. No doubt to the surprise of all parties concerned the findings with respect to the specific injuries operated to afford a greater monetary return than did the findings with respect to the general injuries. The trial court entered judgment for petitioner for the greater amount. Holding that the jury findings of general injury were based upon findings that the injuries to the legs extended to and affected other parts of the body and that the findings of specific injuries were therefore but component parts of the issue on general injury, the Court of Civil Appeals treated the specific injuries as being merged in the general injury and reversed the judgment of the trial court and remanded the cause to that court for further proceedings after verdict, just as though no judgment had been rendered.

We do not agree with the conclusions of the Court of Civil Appeals.

As has been observed, the petitioner's pleadings were adequate to present two theories of recovery alternatively: a recovery for general injury under Sections 10 and 11 of Article 8306, Vernon's Annotated Civil Statutes, or a recovery for specific injuries under Section 12, Article 8306, Vernon's Annotated Civil Statutes. Rule 48, Texas Rules of Civil Procedure, permits such alternative pleading.

The special issues submitting the two theories of recovery to the jury and the answers of the jury thereto have been carefully examined and analyzed. We cannot agree that the findings on general injury are based upon other findings that the specific injuries to the legs extended to and affected other parts of the body. No such issue was submitted. It is true the jury found in answer to Special Issue No. 4 that the injury sustained by petitioner affected parts of his body other than his legs, but in the light of the pleadings and the evidence this was not the equivalent of a finding that the injuries to the legs extended to and affected other parts of his body. There was pleading that in his fall the petitioner injured his knees and his head with the consequence that 'the muscles, ligaments, tissues, nerves and bones, including teeth, of the plaintiff's chin, mouth and head, and knees and legs, were broken, torn, twisted, lacerated, bruised and destroyed,' and that as a result the petitioner 'is now suffering with stiffness in both of his knee joints, and he suffers with severe pain in and about his sinuses in his cheek bones'; that he had lost several of his teeth, was less able to masticate his food, 'suffers with extreme nervousness and restlessness at all times, is unable to sleep at night, and has declined in general health, strength and well-being.' All of this, it was alleged, had rendered the petitioner...