Indemnity Ins. Co. of North America v. Craik
| Decision Date | 24 May 1961 |
| Docket Number | No. A-7803,A-7803 |
| Citation | 346 S.W.2d 830,162 Tex. 260 |
| Parties | INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Relator, v. Honorable Harold CRAIK, District Judge, et al., Respondents. |
| Court | Texas Supreme Court |
Stone, Agerton, Parker & Snakard, Fort Worth, John G. Street, Jr., Fort Worth, with above firm, for relator.
Herrick & McEntire, George Busch, Fort Worth, with above firm. W. James Kronzer of Hill, Brown, Kronzer & Abraham, Houston, for respondents.
Respondents' motion for rehearing is granted. The opinions delivered on February 15, 1961, are withdrawn, and the following is substituted as the opinion of the court.
This is an original proceeding in this court in which Indemnity Insurance Company of North America, relator, seeks a writ of mandamus to compel Honorable Harold Craik, Judge of the District Court of the 153rd Judicial District, Tarrant County, to set aside his order of mistrial and to enter judgment on the verdict of the jury in Cause No. 10,475-C, Fred A. Mize vs. Indemnity Insurance Company of North America.
The case in which the order of mistrial was entered is a workmen's compensation case. The parties stipulated that the average weekly wages of the plaintiff, Mize, before his injury was $86.80. In answer to special issue No. 9 the jury found that the plaintiff had sustained a partial disability as a result of his injury, but in answer to special issue No. 13 found that the plaintiff's average weekly wage earning capacity during his disability was $86.80. It was because of Judge Craik's belief that the jury's answers to these issues, considered with the stipulation, were in fatal conflict that he entered his order of mistrial.
We have regarded this case and Employers Reinsurance Corp. v. Holland, Tex., 347 S.W.2d 605, as companion cases and have considered them together. What is said in the opinion in the Holland case need not be repeated here. There is a material difference in the posture of the cases as they come to us. That difference lies in the definitions of 'partial incapacity' as given in the Holland case and 'partial disability' given in this case. The definition of 'partial disability' given in connection with the submission of special issue No. 9 in this case reads as follows:
'By the term 'partial disability' is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity.'
(1) It is the duty of the court to reconcile apparent conflicts in jury findings if reasonably possible. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562. The apparent conflict in the jury's answers to special issues Nos. 9 and 13 may reasonably be resolved by a precise interpretation of the definition of 'partial disability' by which the jury had to be guided in answering special issue No. 9.
It will be observed that under the foregoing definition the jury could find that the plaintiff had suffered a partial disability without finding that he had suffered 'a depreciation or deduction in his earning capacity'. Under the definition, the jury was authorized to find partial disability if the plaintiff was 'able to procure and retain employment reasonably suitable to his physical condition and ability to work' even though he had suffered no depreciation in his earning capacity.
(2) It follows that there is no fatal or irreconcilable conflict in the jury's answers to special issues Nos. 9 and 13, even when considered with the stipulation of the plaintiff's average weekly wages.
The definition used in this case was approved in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991. We suggest, however, that the punctuation of the definition in the Holland case is more accurate in carrying out the intent of the Workmen's Compensation Act.
We assume that Judge Craik will set aside his order of mistrial and will enter judgment in favor of Indemnity Insurance Company of North America on the verdict of the jury. A writ of mandamus will issue only if he does not do so.
It is impossible for me to agree that the location of a comma in the trial Court's charge should be controlling. Regarless of the reason for some of the members of the Court suddenly deciding to go the comma route, I still believe that the law as declared in the Court's opinion of February 15, 1961, should be controlling. Therefore, the original opinion with additions now becomes the concurring opinion.
This Court is asked by Respondents to hold that 'average weekly wages before the injury' is the equivalent of 'average weekly wage earning capacity', as those terms are used in Sec. 11, Art. 8306, Rev.Civ.St.Tex.1925, Vernon's Ann.Civ.St. art. 8306, § 11. They request this holding notwithstanding that the statute itself defines 'average weekly wage' as money actually earned, regardless of capacity to earn from a physical standpoint, availability of work or the numerous other factors affecting actual earnings. See Art. 8309, Sec. 1.
In order to afford Respondents relief, and hold as requested, this Court must:
(1) Rewrite Sec. 11, Art. 8306 and Sec. 1, Art. 8309; and
(2) Require that defendant's counsel argue plaintiff's case.
That this Court must rewrite the statute is clear, for under the provisions of the Workmen's Compensation Act above cited, the terms referred to are not equivalent. Respondents would have the Court substitute 'average weekly wage earning capacity before the injury' for 'average weekly wages before the injury'.
Next, let us envision the sort of case presenting this controversy. Counsel have stipulated (or the jury may find) plaintiff's 'average weekly wage' during the year immediately preceding the date of injury as $100 per week. There is proof, perhaps uncontroverted, that plaintiff has been regularly and continuously employed for the last several months at a wage of $110 per week. There is further evidence, hotly contested, that plaintiff has done his job well and on his own.
Plaintiff's counsel, in his opening argument to the jury, vigorously asserts that plaintiff was not actually able, i. e., hadn't the capacity, to earn $110 per week in a competitive labor market.
Defendant's counsel now argues to the jury. Must he argue that plaintiff's counsel is right, that plaintiff is in fact unable to earn $110 per week? Must he argue that his own witnesses are wrong? If this Court holds that a jury finding of $110 per week earning capacity during the last several months conflicts with the stipulation, defendant's attorney must so argue. He must argue that his witnesses are wrong, that plaintiff can't earn what he has in fact earned, and request the finding of an amount less than the stipulated wage of $100 per week. Otherwise, a mistrial results. Defendant's attorney is in an intolerable position. He can lose or a mistrial can result-he can't win!
And what of the trial court's position, bearing in mind respondents' continued cries for more speedy disposition of cases. Simply this, that the trial court will retire the jury for further deliberation in the event of inconsistent or conflicting findings in the usual case, thus avoiding a complete retrial of the cause. But if respondents' request is granted here, the trial court cannot do so. How can the trial court, without committing error, advise a jury that its finding of wage earning capacity during the period of partial incapacity is greater than some stipulation of average weekly wage of which the jury is not aware, and that they must therefore find some lesser amount? It cannot! The result-the case must be tried again, with attendant expense to the courts and the litigants. And unless defendant's attorney argues plaintiff's case, the case must be tried again and again. Of course, plaintiff's counsel understandably desire such a ruling, but I submit that a ruling which produces this illogical result, and strikes to the heart of our adversary system of jurisprudence, would be insupportable.
A jury, in answering the special issues submitted to it on trial of a Workmen's Compensation case, finds among other things, the plaintiff's average weekly wages before the injury. This is defined for them in accordance with the definition of that term set forth in Section 1 of Article 8309, Revised Civil Statutes of Texas. Reference to that provision of the statute will show that by definition that term refers to money which the employee 'shall have earned', or which another employee 'shall have earned'. Additionally, the jury determines the average weekly wage earning capacity during the period of partial incapacity. Conceivably, either or both of these two issues may be resolved by stipulation. But however they are resolved, the issue in the one instance deals with earnings and in the other instance with capacity. The two are not the same and could not possibly conflict.
For many years plaintiff's counsel in compensation cases have argued, and the Courts have uniformly sustained, the proposition that a man's earning capacity may be less than his actual earnings (Smith v. Consolidated Cas. Ins. Co., Tex.Civ.App., 290 S.W.2d 589); by the same token he may have the capacity to earn substantially more than his actual wages. In other words, plaintiff's counsel have for years argued that earning capacity and actual earnings are not the same, when arguing the question of disability. If earnings do not equal earning capacity, as this Court has held, then it follows that earning...
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